Full caretaker verdict contradicts short order

The full verdict of the Supreme Court in the constitution's 13th amendment case did not keep conformity with the previous short order. It opted for a polls-time caretaker government comprised of MPs and a small cabinet to carry out routine state works.

“These are not in conformity with the short order [which spoke for holding of next two elections under the void non-partisan caretaker system],” Abdul Wahhab Mia, a judge of the Appellate Division of the SC, said in his dissenting verdict.

He said this while citing the apex court's observation on formation of an MPs-led caretaker government and a small cabinet.

Justice Nazmun Ara Sultana, another judge of the Appellate Division, agreed with the judgement and order passed by Justice Wahhab.

On May 10 last year, the Appellate Division led by then chief justice ABM Khairul Haque declared illegal and void the constitution's 13th amendment act through which the non-partisan caretaker government had been introduced.

The short order on the act stated that the election to the 10th and 11th parliament might be held under the void caretaker government provision of the 13th amendment on age old principles -- “That which otherwise is not lawful, necessity makes lawful”, “safety of the people is the supreme law” and “safety of the state is the supreme law”.

It also said the parliament was at liberty to bring necessary amendments by excluding the provisions for making the former chief justice or a judge of the Appellate Division as the head of the non-party caretaker government.

But in the full verdict, penned by Justice Khairul Haque, the apex court spoke against making the former chief justice or an Appellate Division judge the chief adviser. It observed “in the form of direction” that the caretaker government system could be formed only with MPs, elected representatives of the people.

With this, the non-partisan character of the caretaker government will be lost, as all MPs, except for one independent lawmaker, in the current parliament belong to political parties.

Justice Haque's verdict also said that parliament might be dissolved 42 days prior to the polls, and a small cabinet could perform routine works of the state until the new cabinet took over.

But this gives birth to a dilemma, as when parliament is dissolved, those in the polls-time cabinet will no longer remain elected representatives. They will become unelected individuals just like the now-defunct caretaker government's chief adviser and advisers.

Chief Justice Md Muzammel Hossain, Justice SK Sinha and Justice Syed Mahmud Hossain welcomed the judgement and order passed by Justice Khairul Haque.

The non-conformity with the short order added fuel to the controversy over the formation of the polls-time caretaker government and dimmed the hope for finding a solution in the full verdict.

Meanwhile, taking advantage of the short order, the government in June last year abolished the caretaker government system by amending the constitution. The move has pushed the country towards a political crisis ahead of the next general elections.