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Judgement was an ominous mistake and ruinous for democracy

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10th-Jan-2017       
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Editorial Desk :
We knew this question would be raised. The Supreme Court's judgement on election time caretaker government has created insurmountable obstacle in the way of holding free and fair election by insisting that the election time government has to be elected otherwise basic structure of democratic Constitution will be negated.
The judgement was delivered by majority of one during the time when Justice A.B.M. Khairul Haque was the Chief Justice. Out of 8 amici curiae 7 supported the need of a caretaker government. One of their Lordships held that election is a political matter and should remain outside the jurisdiction of the court. Another Lordship found the non-party caretaker arrangement under the 13th Amendment is essential for the democratic Constitution.
Now his Lordship the incumbent Chief Justice Surendra Kumar Sinha inviting constructive criticism of the court's judgments and seeking answers from those who say that a judgment of the Supreme Court has the affect of destroying democracy.
We reproduce below excerpts from one of our many commentaries published about the time the judgment was delivered :     
Under the parliamentary system nowhere in the world the elected government remains in power for holding the next election. It is an absurd impossibility. There is no need for arguing that with the dissolution of parliament for election every elected member ceases to be elected. This is as simple as that.
Yet a gigantic mistake has been committed insulting to a nation.
The prime minister of the outgoing government is requested to continue as caretaker government for conducting the day to day affairs. Otherwise there will be no government.
It should be beyond anybody's understanding that after the parliament is dissolved how any government or member of parliament could continue as elected? There can also be no general election without dissolving the parliament and its seats falling vacant.
In a recent judgement of the Supreme Court, on unelected election time caretaker government a blueprint has been given how a general election is to be held. The parliament will be dissolved 42 days before the election, though the Constitution requires elections to be held within 90 days of dissolution of the parliament. The most surprising part of the judgement is the declaration that the general election has to be held under the elected government. To have an unelected caretaker government during the election time is unconstitutional and undemocratic. The government was pleased with the judgement as it was too eager to amend the Constitution for requiring the general election to be held with them in power.  
When the ministers or members of parliament will not contest the election with others on the same level playing field, the election itself will be liable to be questioned for the well-established principle of discrimination and inequality.
As the Supreme Court's judgement is binding so the next general election is to be arranged without dissolving the parliament or the government. Such an arrangement is so unreasonable and against common sense that nowhere under a parliamentary system this idea has any acceptance.
It is also most unusual for the Supreme Court, by a majority of one the judgement to deny the parliament its constitutional power of making laws or amending the Constitution. To declare something as illegal is different from declaring something as unconstitutional. Unconstitutionality goes deep into the core of the parliament's power. Their Lordships themselves have given divided and conflicting judgements over the parliament's core power. The constitutional experts will be able to see how the judiciary paved the way for destroying democracy.
On another occasion their Lordship declared 5th amendment to the Constitution passed by the parliament as unconstitutional. If the parliament cannot indemnify the past unconstitutional acts for beginning anew the constitutional process then how constitutional process will be restored safely is not understandable.
General Ershad who is active in politics should be tried for treason. He took over the government unconstitutionally and the indemnity he obtained should also be found unconstitutional. But that was not even considered.
As a lawyer I am hurt that the judgement of the Supreme Court will be seen as contributing to unconstitutional political ambition of a few.
The true purpose of the caretaker government was to help the Election Commission to act without interference from the partisan government. The sitting government's desire not to allow free and fair election has now become a built-in arrangement. It will do everything during the whole time in power that the election is a full-proof set up for it to win.     
Their Lordships by their own conflicting and contradictory judgements unnecessarily implicated the Supreme Court in aggravating the political crisis of denying peaceful change of the government. At least Justice Muhmmmad Imman Ali has decided to leave the matter for the parliament to sort out. The non-party caretaker government is essential if any transfer of power should be made possible peacefully under a free and fair election.
I am also personally against non-party and non-politician caretaker government. What cannot be denied is that it is the politicians who do not trust each other. Once in power they do everything to remain in power against popular wish. For their corruption and misdeeds they indulged in freely, the members of the sitting government don't want to give up power to make them unsafe and lose election.
Bangladesh will earn a unique position of shame for using conveniently the judgement of the Supreme Court to eliminate democracy and with it the rule of law. It is strange that those who most vociferously project themselves as freedom fighters are the ones most viciously active against democracy. If they are freedom fighters freedom under democracy then it is a different issue. But the people's Liberation War was for freedom and democracy.    
For the purpose of clarity, the full order as published with the full judgement is reproduced below:
1.     By majority judgement, the appeal is allowed. The
impugned judgement and order of the High Court Division is set aside.
2.     The Constitution (Thirteenth Amendment, a 1996 Act 1 of 1996) is ultra vires of the Constitution and hereby     declared void prospectively.
3.     The Civil Petition to Appeal No 596 of 2005 is  accordingly disposed of.
4.     The government is hereby directed to pay honorarium of Tk.20,000/- to each of the Junior Advocates of the learned amici curiae.
5.     There shall be no order as to costs.
They say that the devil is in the detail. Although there was total omission of the order as regards the caretaker government in the full judgement, both Mr. Justice A.B.M. Khairul Haque and Mr. Justice S.K. Sinha in the text of their individual judgements representing the majority judgement, have, however, reiterated the two more terms for the caretaker system.
But Justice A.B.M. Khairul Haque has added a caveat making it a precondition that even that caretaker government has to be elected. He went a step farther to direct that the parliament is to be dissolved 42 days before the elections. These deviations from the order declared in the open court caused no small stir.
Justice Md. Abdul Wahhab Miah expressed surprise and raised objection to the changing aspects of the full judgement. The general consensus is that the judgement announced in open court cannot be changed outside the court.
My purpose is not to add to the controversy the Supreme Court has landed itself, though as a practicing lawyer I  am no doubt gravely disturbed by the controversy  over such an important judgement delivered by the highest court of the country.

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