Abdul Mannan Khan vs. Government of Bangladesh & others 64 DLR (AD) 169 [13th Amendment Case]

 Introduction

Democracy and free election is the inseparable twin. In order to hold free and fair election, all parties agreed to amend the constitution and inserted the provision for non- party caretaker government for a limited period of 90 days. Successive three general elections were held under the caretaker government without any substantial allegation of bias. However, our apex Court by slim majority declared 13th amendment unconstitutional on the ground that it violates the basic structure of the constitution.

 

Facts of the Case:

In 1999, Mr. M Saleem Ullah, an Advocate of the Supreme Court of Bangladesh, filed the Writ Petition No. 4112 of 1999 before the High Court Division challenging the Constitution (Thirteenth Amendment) Act, 1996 as ultra vires the Constitution. On 25.01.2000, a division bench comprising Mr. Justice Shah Abu Nayeem Mominur Rahman and Mr. Justice Md. Abdul Awal issued a Rule Nisi as to why the 13th amendment should not be declared ultra vires the constitution. During hearing of the Rule, it revealed that on 25.07.1996 a summary rejection order was given on the same matter. As such, the matter was referred to the Chief Justice for constituting a larger bench. Thereafter, on 16.06.2004, a larger bench consisting of Mr. Justice Md. Joynul Abedin, Mr. Justice Md. Awlad Ali and Mr. Justice Mirza Hussain Haider was constituted. The larger bench vide its Judgment and Order dated 04.08.2004 declared that the 13th Amendment is valid and constitutional and gave certificate to the petitioner that it involves interpretation of the constitution. Thereafter, the petitioner preferred Civil Appeal No. 139 of 2005 with Civil Petition for Leave to Appeal No. 596 of 2005 before the Appellate Division. Due to death of M Saleem Ullah, Abdul Mannan Khan was substituted.  On 10.05.2012, after hearing the appeal and the petition, the Appellate Division by slim majority reversed the judgment of the High Court Division and declared that the 13th Amendment is unconstitutional.

The Counsels

 1. Mr. MI Farooqui, Senior Advocate, Mr. Mohsin Rashid, Advocate and Mr. M.G. Bhuiyan, Advocate-on-Record [For the Appellant]

2. Mr. Mahbubey Alam, Attorney General, Mr. MK Rahman, Additional Attorney General, Mr. Murad Reza, Additional Attorney General, Mr. Md. Mothahar Hossain Saju, Deputy Attorney General, Mr. ABM Altaf Hossain, Deputy Attorney General, Mr. Md. Ekramul Haque, Assistant Attorney General, Mr. Khandaker Diliruzzaman, Assistant Attorney General, Mr. Amit Talukder, Assistant Attorney General and Mr. B Hossain, Advocate-On-Record [For the Respondent Nos. 1-2]

3. TH Khan, Dr. Kamal Hossain, Rafique-ul-Huq, Dr. M. Zahir, M Amirul Islam, Mahmudul Islam, Rokanuddin Mahmud and Ajmalul Hossain, Senior Advocates [Amici Curiae]

 

Submissions of the Counsels

Mr. MI Farooqui:

1. The 13th amendment destroyed two basic structures of the Constitution, namely, democracy and the independence of judiciary.

2. This amendment has amended article 48 of the Constitution.

3. This amendment suspended the provisions of article 55 and thereby has taken away the mandate of the people who elected the Prime Minister.

4.  According to Article 58A, during the Non-Party Care-taker Government, all other provisions of Chapter II of Part IV except clauses (4), (5) and (6) of article 55 have been made ineffective and thus the Constitution drafted by the Constituent Assembly has been done away with.

5. This amendment has amended the preamble and articles 8, 48 and 56 of the Constitution. Therefore, before assenting to the bill by the President, the same was required to be sent for referendum under article 142(1) (1A) of the Constitution. However, it was not done and thus the Thirteenth Amendment was made without following the constitutional mandate and as such, the same is liable to be declared ultra vires the Constitution.

6. The concept of the Non-Party Care-taker Government has been brought into the Constitution replacing the elected representatives of the people and thereby the Republic and the democratic structure of the Constitution have been given a go-by.

7. During the Non-party Care-taker Government the executive power of the Republic shall vest with the Chief Adviser, an unelected person for 90 (ninety) days and thereby the mandate of the people as given in article 7 shall be nowhere.

8. The independence of judiciary has been impaired by inserting the provisions for appointment of the retired Chief Justices of Bangladesh and the retired Judges of the Appellate Division as Chief Adviser of the Caretaker Government. In view of becoming the Chief Adviser of the Care-taker Government, while in service they might be tempted to be influenced in their decision in favor of the authority.

9. The provisions for making the retired Chief Justices and the retired Judges of the Appellate Division as the Chief Adviser of the Non-Party Care-taker Government has politicized the office of the Chief Justice making it vulnerable to all sorts of maneuvering and political attacks.

10. Such provisions have also destroyed separation of powers, another basic structure of the Constitution.

11. By amending article 61 of the Constitution, the concept of two executives, that is, a diarchy has been injected in the Constitution whereas the framers of the Constitution conceived only one executive headed by the Prime Minister.

12. With reference to the article 58C, he argued that succession to the office of the Chief Adviser starts from clause (3) thereof and if the succession fails and eventually the President takes over as the Chief Adviser then he has a chance to become autocrat and in that case, the democratic character of the Republic shall totally be destroyed.

13. In case the President is compelled to summon the Parliament under the situation as contemplated in clause (4) of article 72 of the Constitution during the tenure of the Non-party Care-taker Government, there shall be an anomaly causing uncertainty in the country what would happen to the immediate Prime Minister and thus the country shall run in vacuum.

14. By referring to the period 2006-2008, he has further submitted that the Non-Party Care-taker Government failed to work.

15. He, by referring to article 58D, has further argued that it shall not make any policy decision, but in case of emergency such as, foreign policy, there cannot be anything as routine functions and the decision has to be given immediately, so Non-Party Care-taker Government suffers from lack of proper authority to take decision on policy matter.

Mr. Muhammad Mohsen Rashid:

1. The role of the people of Bangladesh has been denied for 90 days, as during this period the country shall be governed by the unelected people and by such constitutional dispensation, the supremacy of the people as enshrined in article 7 as well as the preamble of the Constitution has been impaired.

Mr. T.H. Khan:

1. Before striking down the 13th Amendment, the history behind passing it has to be taken into consideration.

2. The Constitution of any country is not a revelation and is amenable to amendment to meet the need of the people and the State. The amendment was brought to strengthen the democracy because the concept of interim Government as provided in articles 57(3) and 58(4) of the Constitution failed to ensure free, fair, impartial and credible general election of members of Parliament.

3. Election is the vehicle of democracy as without wheels a vehicle cannot move, similarly without free and fair election democracy cannot work.

4. The main purpose behind the introduction of Non-party Care-taker Government was to have a free, fair and impartial general election of members of Parliament.

5. He referred to the great saying of Sir Winston Churchill ‘at the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper’ no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point and submitted that the concept of Care-taker Government has been brought to ensure the right of vote of the little man of Churchill.

6. Under the concept of Non-Party Care-taker Government 3(three) general elections of members of Parliament have already been held and the people by participating in those three elections, on a large scale, elected their representatives to form the government and thus, they have accepted the system.

7. The provisions making the retired Chief Justices of Bangladesh and the retired Judge of the Appellate Division eligible to be the Chief Adviser has, in no way, impaired the independence of judiciary. Article 96(2) of the Constitution has ensured that no Judge shall be removed from his office except in accordance with the provisions as stipulated in clauses (3) -(7) thereof. Therefore, the tenure of a Judge being fully secured, the Chief Justice or Judge of this Division who is supposed to be the Chief Adviser after retirement has no reason to be apprehensive of his office and as such, there is no reason to be influenced or allured to perform the judicial function as a sitting Judge in favour of the authorities keeping an eye upon such future appointment.

8. Since the Prime Minister has already spoken about the amendment of the Constitution very soon the matter may be left to the Parliament to reform Non-Party Care-taker Government, if any.

9. Non-Party Care-taker Government is a must for sustaining democracy, a basic structure of the Constitution, so the 13th Amendment has to stay in the Constitution.

Dr. Kamal Hossain:

1. The Constitution is a living document and must be durable and at the same time, it has to be responsive to the need of the people keeping intact its basic structures and interpretation has to be given to add life to it.

2. The constitutionality of the 13th Amendment has to be looked into keeping in view the whole scheme of the Constitution, the aspiration of our forefathers as well as the object and reason in passing the same. General election of members of Parliament under the party Government lost all its credibility and in the name of election what happened could not be said to be election. He recalled the situation prevalent in 1990 and the movement by all the political parties and the members of the civil society to evolve a method and mechanism to hold free and fair election and then the consensus of all the political parties of the mechanism of Non-Party Care-taker Government as a lifesaving of the Constitution. Successive elections have already been held under the new dispensation and thus, the people have accepted the mechanism. So, the question of declaring the 13th Amendment ultra vires the Constitution does not arise at all.

3. The argument that the amendment of article 61 of the Constitution by the 13th Amendment has created diarchy and given dictatorial powers to the President is tendentious and show lack of understanding of a constitutional mechanism adopted by consensus to meet the widely shared concern to supplement the Election Commission's capacity to ensure free and fair election.

4. This Amendment has not, in any way, impaired democracy, the Republican character of Bangladesh and the independence of judiciary as well as separation of powers.

Mr. Rafique-ul-Huq:

1. The concept of Non-Party Care-taker Government is contrary to the basic structures of the Constitution, but it is an evil necessity in order to ensure free and fair general elections of members of Parliament.

2. There was provision for Caretaker Government in the Constitution under articles 57(3) and 58(4) of the Constitution. But the concept of Non-Party Caretaker Government was introduced in 1996 in a very critical situation in the country; people lost confidence in the then Government as to the general election of members of Parliament, all other political parties demanded a Non-Party Care-taker Government for the purpose of holding free, fair and impartial general election of members of Parliament and after series of discussions such idea was approved as a consensus including the party in power and accordingly the 13th Amendment was passed by the Members of 6th Parliament.

3. Though the concept of Non-Party Care-taker Government is contrary to the basic structures of the Constitution, if the same is abolished then 1/11 may come again, so the system should be continued.

4. If the highest Court declares this Amendment as illegal, the BNP will not participate in election, then again there will be chaos in the country as happened in 1996.

5. He opposes the involvement of judiciary directly with the Non- Party Care-taker Government because it has raised an apprehension in the mind of the litigant people that in view of such provision whether they can expect free, fair and impartial decision from the Judges and there is also a chance of unhealthy competition of superseding the senior Judge.

6. In order to hold free and fair election, Election Commission should be strengthened with wide powers.

7. He has also given a suggestion as to the formation of Caretaker Government without the retired Chief Justice of Bangladesh and the retired Judge of this Division as the Chief Adviser.

Dr. M Zahir:

1. The Non-Party Care-taker Government is against the basic structures of the Constitution.

2. The concept of Non-Party Caretaker Government is a natural stigma on the honesty of all political parties and the elected Government of this country.

3. A modality of a Care-taker Government of Australia instead of our present one with 10(ten) persons, 5(five) each to be nominated by the leader of the house and the leader of the opposition respectively in presence of the President who will form the Caretaker Government.

4.  In selecting the Chief Election Commissioner and the other Commissioners, the system as followed in India may be adopted.

5. At the time of election, the Army must be under the Command of the Election Commission and before the election voter list must be prepared within a period of 30(thirty) days.

Mr. M. Amirul Islam:

1. Merely holding an election cannot give legitimacy to the result of the election unless the process of such election is transparent. Our past experience shows that the election held under the political Government was not free and fair and the people who are the supreme authority to decide their representatives could not exercise their right of adult franchise because their votes were hijacked by muscle power and money.

2. People are the master to select their representatives to form the Government and to ensure that free and fair election is a must; free and fair election is no less a fundamental right than the other fundamental rights.

3. As a consequence of the people's movement and then on the basis of consensus, the 13th Amendment was passed by the 6th Parliament.

4. As per clause (3) of article 72 of the Constitution, after the dissolution of Parliament the tenure of the elected Government expires and the elected Government, which remains in power, ceases to have been elected and representative character. Therefore, there is nothing wrong in the mechanism of Non-Party Caretaker Government to be manned by the unelected people for 90 (ninety) days and so the introduction of Non-party Care-taker Government in the Constitution has not, in any way, destroyed democracy, a basic feature of the Constitution.

5. This Amendment did not come into the Constitution in an easy way and it was the outcome of the people's movement. By this Amendment, the boat of democracy, which was about to sink, was salvaged and the people's right to vote freely and fairly has been restored. Hence in effect the democratic right of the people has been protected rather than destroyed.

6. This Amendment has no constitutional problem; the same having been passed on consensus by all political parties including the party in power.

7. Improvement may be made in the system in the experience of the last 3(three) Care-taker Government, but that must be on the basis of consensus amongst the political parties as was reached in 1996.

Mr. Mahmudul Islam:

1. The constitutionality of a provision of the Constitution cannot be decided without considering the context behind passing the same. He recalled the incidents and the other experiences which the people of the country had in the elections held under the political Government in the past including Magura-2 by-election and the movement of all opposition political parties including the civil society and then the people at large for a mechanism for holding the general election of members of Parliament in a free and fair manner. All these efforts were made to save democracy and to keep the constitutional process going on.

2. If the 13th Amendment is held invalid today, it is almost certain that the opposition parties will not participate in the election and then democracy will be a far cry.

3. It is true that the provisions of the Thirteenth Amendment suspend representative Government for short interregnum, but ensures operation of democracy in the country.

4. In social engineering, there is no panacea, which can cure all political maladies in all places, and for all times.

5. There is no alternative to hold election under a Care-taker Government to preserve the democratic character of the Constitution and the country and democracy has to be suspended for a little while for its ultimate survival.

6. When the Head of the State is elected by the people, either directly or indirectly, the State is called a Republic and the Constitution is said to have provided a Republican character. The 13th Amendment has not introduced any provision which can be said to have altered article 48(1) in any manner and therefore, it did not change the Republican character of the Constitution.

7. In a representative democracy, it is the people who select their representatives in an election held in a free and fair manner and if the Non-Party Care-taker Government system goes then money and muscle power will rule in the election and in the process, the thugs and the thieves will get elected and thus, the democracy will again be a far cry and thus the supremacy of the people as enshrined in article 7 of the Constitution will be nowhere.

8. There is no impediment for the learned Judges to perform the judicial functions independently. Security of tenure, financial security and administrative independence are the 3(three) "core characteristics" of judicial independence and the Constitution has guarded all the above 3(three) conditions, so the argument that by the 13th Amendment, the independence of judiciary has been destroyed, has no factual and legal basis.

9. The 13th Amendment has not made any provision for appointment of the sitting Chief Justice of Bangladesh or a sitting Judge of this Division as the Chief Adviser and when a Judge retires, he ceases to be a part of judiciary and by the appointment of a retired Chief Justice or Judge of this Division as the Chief Adviser, the judiciary will not, in any way, be involved.

10. A law cannot be declared invalid because it can be abused and it has been abused. In the recent past the power to constitute caretaker government had been abused, but merely for such abuse, the 13th Amendment cannot be held unlawful and measures are to be taken to prevent such abuse rather than abolition of the system introduced by the amendment.

11. Some imaginary or ethereal idea such as a Chief Justice or a Judge of this Division who has chance to become the Chief Adviser may be allured and for some reason may be influenced by the highest executive and may become partisan and may act in a manner subservient to the Government and thus, the independence of judiciary may be impaired, shall not make a law invalid.

Mr. Rokanuddin Mahmud:

1. The 13th Amendment was the outcome of the emotion of the entire nation.

2. If the caretaker system enshrined in the original constitution was acceptable, there was no reason to declare the 13th Amendment ultra vires the Constitution as the existing system has simply been replaced by the Non-Party Care-taker Government to ensure free, fair and impartial general election of members of Parliament.

3. This Amendment is based on article 7 of the Constitution as it has ensured people's participation in the general election of members of Parliament to select their own representatives to form the Government in a free and fair election, which became simply impossible under the political Government.

4. The people of the country have already witnessed the benefit of the 13th Amendment as in the 3(three) elections held under the Non-party Care-taker Government, they could go to the polling centers and cast their votes freely without any influence of money and muscle.

5. If the margin of votes is taken into account, it will be seen the election under the party in power was not free and fair.

6. Independence of judiciary has not, at all, been impaired. The executive only gives appointment of the Judges and then they have no control over them and the Judges perform their functions independently and the Supreme Judicial Council can remove a Judge. It is the prerogative of the Supreme Judicial Council to decide what would amount to such gross misconduct of a Judge and what procedure would be followed by it in holding the inquiry. Parliament has no power to constitute the Bench to hear a case and it is the Chief Justice who constitutes the Bench. The power of judicial review of this Court also has, in no way, been affected or touched by the 13th Amendment.

7. To head the Non-Party Care-taker Government by the retired Chief Justice and the retired Judge of this Division was the only choice of the people who were fighting to have a free and fair election and no other post or person was acceptable to the people and, in fact, the choice of the post of retired Chief Justices and the retired Judge of this Division rescued the situation and such device could neither be said to be undemocratic nor destructive of the independence of judiciary.

8. The post of Chief Adviser is a political office, so there is a chance of criticism, but it is the retired Chief Justice or the retired Judge of this Division, as the case may be, who will hold the office. Therefore, the criticism of the Chief Adviser, if there be any, shall, in no way, have any impact upon the Judiciary and Independence of the sitting Judges as they will be performing their functions as per their oath which they took after their appointment.

Mr. Ajmalul Hossain:

1. The 13th Amendment has destroyed the 3(three) basic structures of the Constitution, namely, the democracy, the independence of judiciary and the separation of powers.

2. By making the Election Commission more powerful and independent, free, fair and impartial general elections of members of Parliament can be ensured under the political government.

Mr. Mahbubey Alam:

1. The then ruling party was compelled to go for the amendment in the face of the popular demand from the political parties and the civil society.

2. The constitutional changes took place because of historical events and the past experience of the other elections held under the political party in power.

3. The President being an elected person and during the Non-Party Care-taker Government, he remains as the Head of the State and the Non-Party Care-taker Government collectively remains responsible to him, so the Republican character of Bangladesh is, in no way, affected.

4. By making provisions for the retired Chief Justices of Bangladesh and the retired Judges of this Division to become the Chief Adviser, the independence of judiciary has not at all been impaired.

ISSUES BEFORE THE COURT

A. Locus Standi of the Substituted Petitioner

Mr. Justice ABM Khairul Haque

The substituted person (Abdul Mannan Khan) in the present appeal is also anadvocate of the Supreme Court and a citizen of the country and hence he has locus standi to conduct the instant case [Para-11].

B. Res Judicata

Mr. Justice ABM Khairul Haque

The principle of res judicata does not always apply to the writ matter. The writ jurisdiction is limited to the question of law. According to Supreme Court (High Court Division) Court Rules,1973 if a division bench of the High Court Division does not agree with the judgment of another division bench then the said bench will refer the matter to the Chief Justice for constituting a larger bench. That’s why the instant writ petition is not barred by the doctrine of Res Judicata [Para-16, 17, 20].

C. Doctrine of Political Question

Mr. Justice ABM Khairul Haque

The 13th Amendment was challenged on the ground that it ultra vires the constitution. Though political question is involved with the matter, the Supreme Court cannot leave it if there is a grave necessity of interpreting the constitution [Para-227, 1017]. The judges settle the dispute on reason bereft of politics and passion. [Para-229]

Mr. Justice SK Sinha

Judges will ordinarily find that the law is fine as it is. But when they find that it is not, the law intends for them to do something about it. The Judges must apply their reason and experience in an attempt to achieve justice. [Para-1241]

D. Democracy

Mr. Justice ABM Khairul Haque

1. As per Article 55(3) of the constitution, the prime minister and the cabinet are responsible to the parliament. It is democratic character. But the 13th amendment changed this character by making the caretaker government responsible to the president [Article 58B (2)]. (Para 966)

2. Prime minister’s advice is a must for the president as provided in Article 48(3). His counter signature is necessary to declare state of emergency [Articles 141A (1), 141C (1)]. But this provision has been ineffective during caretaker government (Article 58E). In this way, the people’s role has been ousted and this is contradictory to democracy. There is a possibility of being autocratic by the president. (Para-961, 965, 967).

3. The constitution gives the power of defense section to the executive who is the representatives of the people. But during caretaker government the president takes over the responsibility of ministry of defense though he is not elected representative. So performing this executive duty contradicts the plan of the original constitution. (Para-960)

4. While the parliament is not in session, the president promulgates the ordinance after approving it in the cabinet meeting. But during caretaker government the ordinance is approved by the advisers who are not elected representatives of the people. [Para-973]

5. In fact, the said amendment destroyed the republican and democratic character of the state. Para-1011]

6. If the president assumes the post of the chief adviser as an additional duty under Article 58C (6) he will be autocratic. [Para-1015].

Mr. Justice SK Sinha

1. Democracy means the parliamentary form of democracy as will be evident from Chapter II, part IV of the constitution. [Para-1230]

2. The caretaker government is responsible to the president and this is one kind of presidential form of government. [Para-1221]

3. In one stage, the president may assume the post of chief adviser and it will also create a presidential form of government. [P-1223]

Mr. Justice Wahhab Miah (Dissenting)

1. President is the elected and true representative of the people. So making the caretaker government responsible to the president ensures the peoples’ participation. [Para-1427, 1430] 2. When the people elect the Head of the state either directly or indirectly, the State is called a Republic. [Para-1438]

E. The Independence of Judiciary

Mr. Justice ABM Khairul Haque

1. Desire of becoming chief adviser is humiliating for judiciary and contradictory to the independence of judiciary. [Para-1051]

2. Every step of the Chief Justice may be misinterpreted if he has a chance of being chief adviser. In that case, he will face difficulty in conducting adjudicative functions [Para-1066].

3. In the absence of holding the post of chief adviser, the chief justice will be independent from the mental pressure and further he can also be free from political pressure from the lawyers of the opposite political party. [Para-1088]

Mr. Justice SK Sinha

1. There is scope for the Executive to interfere with the administration of justice and to politicize the judiciary particularly at the time of elevating a Judge in the Appellate Division keeping eyes upon his future appointment as Chief Advisor immediately after retirement. [Para-1290]

Mr. Justice Wahhab Miah (dissenting)

1. It does not impair the three conditions of the independence of judiciary. [Para-1451].

2. The mental strength is the main element for a judge to perform the adjudicative functions independently. [Para-1455]

3. The chance of becoming chief adviser may prejudice free, fair and impartial adjudication- is a speculative, imaginary and ethereal question. [Para-1456, 1457]

4. The post of Chief Justice is also not less honorable, dignified and prestigious than that of the Chief Adviser. So there is no question of bias in adjudicating the case. [Para-1461]

5. The question of influencing the judiciary by the retired Chief Justice or the Judge of the Appellate Division does not arise at all. [Para-1463]

F. Peoples’ Representation after Dissolution of Parliament

Mr. Justice ABM Khairul Haque

1. As per Articles 56(4), 57(3), 72(3), 72(4) and 123(3) of the Constitution, the prime minister and the cabinet will continue in the office after dissolution of parliament till a new parliament comes. As such the peoples’ participation will continue and it never disrupts. [Para-1097, 1099, 1108]

Mr. Justice Wahhab Miah (Dissenting)

1. Dissolve means to terminate. The mandate of a parliament shall cease after completing five years from its first meeting. Then the prime minister and the cabinet will hold office till its successors enter office. After dissolution, their position is equivalent to the form of the caretaker government as enshrined in the 13th Amendment. All are unelected representatives [Para-1418, 1419, 1421].

G. Caretaker Government and the Free Fair Election

Mr. Justice ABM Khairul Haque

1. In 1996, the country was saved from a great disaster [Para-1021]. In 2001, after taking oath, the chief adviser transferred several secretaries and many officers within a very short time. Then a political party seriously opposed the steps of the chief adviser [Para- 1022]. The last caretaker government unconstitutionally governed the country for two years though the term was ninety days [Para-1031].

H. Medium for Free and Fair Election

Mr. Justice ABM Khairul Haque

The Election Commission should be financially independent. Complete administrative power should be given to it. During election the concerned officers should be under the direct control of the election commission. News media and the people should be aware. [Para-1129, 1130]

Mr. Justice SK Sinha

The election commission should be allowed to take penal actions against Government servants entrusted with election responsibilities if they violate its order or direction [Para-1271, 1294].

I. Provision of Unelected Members of the Parliament in The Constitution

Mr. Justice Wahhab Miah (Dissenting)

Article 56(4) of the original constitution provides provision for appointment of non-parliament member as Minister on condition that he had to be elected within 6(six) months. Article 56(2) of the present constitution makes provision for appointment as Ministers, Ministers of State and Deputy Ministers from amongst the non-members of Parliament up to one-tenth of the total number of the Ministers, the Ministers of State and the Deputy Ministers from amongst the members of Parliament. Article 65(3) of the original Constitution makes provision for fifteen reserved seats for women members, which now by way of amendment stands at 45. [Para-1425]

J. Provision of ‘Interim Government’ in the Constitution

Mr. Justice ABM Khairul Haque

1. According to article 123(3)(a) of the constitution, the general election used to be held within preceding ninety days before the parliament was dissolved. The previous cabinet would perform as interim government after dissolution of parliament.  [Para-1108]

Mr. Justice Wahhab Miah (Dissenting)

1. Before introduction of the 13th amendment, the concept of interim government was relatable to Article 123(3)(b) of the constitution [Para-1417].

K. Necessity of the Caretaker Government

Mr. Justice Wahhab Miah (Dissenting)

1. The interim government as provided in articles 57(3) and 58(4) failed to ensure free and fair election. Thereafter, non-party caretaker government was introduced to strengthen the democratic process and it did not destroy democracy in any manner. [1424]

2. The 13th Amendment was incorporated for giving a complete meaning of democracy and also for making the existing interim government more effective [1426].

L. An Act Cannot Be Declared Void upon Abuse

Mr. Justice Wahhab Miah (Dissenting)

1. The 13th amendment was passed following constitutional procedure. As per Article 58C of the Constitution, there were five options to select the chief adviser. In 2006-2008, when immediate past Chief Justice, Mr. Justice KM Hassan declined to hold the post of chief adviser, there were four other options to follow. But the president did not follow the provisions of the said Article and assumed the functions of the chief adviser. Hence, the 13th amendment was abused. Due to this abuse, the same cannot be declared ultra vires. [Para 1481]

M. Direction of the Judiciary to Amend the Void Act

Mr. Justice Wahhab Miah (Dissenting)

In exercising the power of judicial review, the High Court Division and the Appellate Division cannot give direction to the Parliament to amend the void law in a particular manner. This is a transgression into the legislative power of the Parliament under article 65(1) of the Constitution. [Para 1493-1494]

N. Deviation from the Short Order

Mr. Justice Wahhab Miah (Dissenting)

The learned Chief Justice ABM Khairul Haque stated in the short order that the 10th and 11th parliamentary election may be held under the provisions of 13th amendment. But he added some paragraphs about formation of the caretaker government in concluding part of the judgment. This addition did not conform with the short order. [Paras 1494-1496]

O. Referendum

This issue has not been discussed in the instant appeal. The provision of referendum has been incorporated in the constitution by the 5th amendment. This amendment has been declared unconstitutional by the Appellate Division before commencement of the hearing.

Short Order of the Court:

“It is hereby declared:

(1) The appeal is allowed by majority without any order as to costs.

(2) The Constitution (Thirteenth amendement) Act, 1996 (Act 1 of 1996) is prospectively declared void and ultra vires the Constitution. 

(3) The election of the Tenth and the Eleventh Parliament may be held under the provisions of the above-mentioned Thirteenth Amendment on the age-old principles, namely,

• quod alias non est licitum (That which otherwise is not lawful)

• necessitas licitum facit ( necessity makes lawful)

• salus populi suprema lex (safety of the people is the supreme law)

• salus republicae est suprema lex (safety of the State is Supreme law). 

The parliament, in the meantime, is at liberty to bring—

• Necessary amendments exclude the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division the head of the Non-Party Care-taker Government.

• The Judgment in detail would follow.

• The connected Civil Petition for leave to appeal No.596 of 2005 is accordingly, disposed of.”  [Extracted from the website of the Supreme Court of Bangladesh.]

Conclusion

After the pronouncement of this judgment, the Government of Bangladesh introduced the Constitution (Fifteenth Amendment) Act, 2011 and abolished the Non-Party Caretaker Government system as an interim Government. Since then, our national leaders failed to build up any acceptable method for holding free, fair, impartial and participatory general election. Mistrust and arbitrariness in political process have been a common phenomenon. The concept ‘we the people’ has lost its efficacy rather developed a concept of ‘উন্নয়নের গণতন্ত্র’. In fact, sustainable development is not possible without active participation of the people. It is crying need to create an environment amongst the political parties to hold free, fair, impartial and participatory general election.

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This case summary is extracted from Mohammad Shishir Manir, Advocate of the Supreme Court of Bangladesh.