Senior lawyers give divergent views on SC judgment

Senior lawyers of the Supreme Court, some of whom were amici curiae in the 13th amendment case, on Monday came up with conflicting opinions on the Supreme Court judgment the full text of which was released on Sunday.


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Rafique-ul Huq hoped the next general elections would be held under any form of caretaker government.

He said BNP had already declared it would boycott the elections if the caretaker provision was not restored.

Rafiqul said any observation of the Supreme Court was deemed to be a law of the land and the highest court judgment would have a binding effect as per Article 111 of the constitution.

He said the prime minister had already proposed an election-time government but the opposition had not made any proposal on the form of such government.
The question is who will be the head of the caretaker government and whether the head will be an elected person or not, he said.

Rafiqul said the man who would be selected as the head of the caretaker government could be elected from any constituency and it was not impossible if both the parties agreed.

Sharing the views of Rafiqul Huq that the Supreme Court judgment has a binding effect, Amirul Islam said, ‘Now we can ponder over the ways of forming an election-time caretaker government.’

Whatever the judgment said, the government and the opposition can also form an interim government to hold the next general elections if both the parties agree, said Amirul Islam.

‘There is still a chance to form a caretaker government and there is a guideline in the judgment,’ he added.

Amirul Islam said that polls were held under the caretaker government after announcement of the election schedules.

As elected representatives are there in both the government and the opposition, now it is the duty of the politicians to figure out the modus operandi of the next caretaker government, he added.

TH Khan said the full text of the judgment had now become a show-piece as everything had been settled by amending the constitution (15th amendment) prior to the release of the full text.

Khan questioned the validity of the full-text judgment in the 13th amendment case saying Justice Khairul Haque had violated the constitution by writing the verdict when he was no more a judge.

‘Justice Khairul Haque has no right to write and release the judgment 16 months after his retirement on May 17, 2011,’ said Khan, also a former High Court judge.
Echoing Rafiqul’s views about the outcome of the verdict, M Zahir said that the Awami League-led government had already amended the constitution scrapping the 13th amendment and ‘I fear whether there is any effectiveness of the judgment.’

Zahir also said that the Awami League had taken a stance by amending the constitution on June 30, 2011 while the BNP wanted restoration of the caretaker provision.

The constitution must be amended again for holding the next election under a caretaker government, he said, adding, ‘Let us see how the Awami League and the BNP consider the judgment.’

MI Farooqui, the lawyer for the appellants who had challenged the High Court verdict declaring the 13th amendment lawful in 2004, said that the Appellate Division’s full-text verdict in the 13th amendment case ‘has now become ineffective as the constitution has already been amended.’

The judgment is now a part of the judicial history and the judges and the lawyers will use it for future guidance,’ he added.

News Source: 
The New Age