Amici curiae want revision of caretaker govt system

March 31, 2011

Senior Supreme Court lawyers Rafique-ul Huq and M Zahir on Wednesday told the Appellate Division of the Supreme Court that the caretaker government system should be revised by dropping the provision for appointing former judges as chief adviser or adviser.
The system of holding national elections under the caretaker government is still a necessity but it needs to be revised in the interest of the democracy and the judiciary, they maintained.
They came up with the opinion as amici curiae during the hearing in an appeal filed by three Supreme Court lawyers in 2005 against a High Court verdict delivered in 2004 declaring lawful the 13th amendment to the constitution that made the provisions for forming non-party caretaker government in 1996.
Rafique suggested that, before dissolution of the parliament, the ruling and the opposition parties in the parliament should nominate three or five people eligible to become chief adviser of the caretaker government.
The three last retired chief justices will nominate one person from the panel as the chief adviser and the chief adviser will appoint other advisers from two panels of 10 people each recommended by the ruling and opposition parties, Rafique added.
He also suggested that there should be a mandatory provision for the caretaker government to hold the general election within 90 days from the dissolution of the parliament.
‘This is required to avoid a situation like the 1/11 of 2007, when a military-controlled interim government grabbed the power and had held onto it for two years in the name of holding parliamentary elections within 90 days,’ he argued.
Rafique also suggested strengthening the Election Commission like its counterpart in India.
He said, the armed forces, the police, and the Boarder Guard of Bangladesh would be under the control of the president but they would be deployed as per the decision of the EC.
M Zahir in his argument came up with opinions and suggestions similar to that made by Rafique.
But, Zahir said, three months before of the end of the parliament’s tenure, the treasury bench and the opposition each would nominate a panel of five members of parliament as 10 advisers to the caretaker government headed by the president.
He said the general elections would have to be held within a month from dissolution of the parliament and the voters’ roll would have to be updated before that going house to house. He also suggested introduction of electronic voting system.
Zahir argued that, if the caretaker government was reconstituted in that manner, it would be free from the objection that it was comprised of unelected people.
Such a provision for forming caretaker government exists in Australia, he mentioned.
Both the counsels, however, termed the present caretaker system undemocratic and against the spirit of the constitution.
Rafique cited a recent example of a junior judge of the Appellate Division being appointed the chief justice, superseding his senior colleagues, and suggested that no judge should be appointed as the head of the caretaker government as ‘there is always apprehension in the mind of the people that justice “X” is protecting the interests of the party in power only because he wants to be the chief justice and the last retired chief justice before the general elections’.
The chief justice, ABM Khairul Haque, agreed with Rafique’s argument, saying, ‘It [the people’s perception] is really embarrassing for us.’   
Rafique, however, argued that the caretaker system was still necessary but in a ‘reconstructed manner as the party in power or the main opposition party was not behaving in a proper manner’. ‘They are criticising each other without any respect for each other,’ he remarked.
The court will resume the hearing today with senior lawyer Amirul Islam making his arguments.


Courtesy of New Age

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