Bangladesh's apex court revokes caretaker government system

The Supreme Court bench said the 13th amendment that introduced the existing system of caretaker governments in 1996 was "ultra vires" or "beyond the powers" of constitution.

"The constitutional (13th Amendment Act, 1996) Act is prospectively declared void and ultra vires to the constitution," read verdict of the six-member apex court division headed by chief justice A B M Khairul Haque against a 2004 High Court judgement.

But, the verdict reached by majority of the six-member apex court bench, said the next tenth and eleventh parliamentary elections set to held in 2013 and 2018 "might be" held under the existing caretaker government system to evade chaotic situations.

The Appellate Division verdict said the majority of the judges reached the decision in accepting the appeal filed by a now dead Supreme Court lawyer.

The High Court in a 2004 verdict rejected a writ by a Supreme Court lawyer who sought scrapping of the 13th amendment, which said the country's immediate past chief justice would preferably be head of the caretaker government.

The provision prescribed installation of the non-party and non-elected caretaker government for 90 days to oversee general elections at the end of the tenure of an elected government.

The appellate division judgement allowed the next two general elections to be held under the existing system following the "age old principles" that suggest -- some otherwise unlawful things can be lawful because of necessity, "safety of the people is the Supreme Law" and "safety of the state is the Supreme Law".

"Parliament, however, in the meantime, is at liberty to bring necessary amendments excluding the provisions of making former chief justices or other former apex court judges as head of the caretaker government," the judgement said.

The verdict came after 10 days of hearing when it heard opinions of eight leading jurists as "amici curiae" or "friends of the court" with a majority of them suggesting that the provision of appointing former chief justices exposed the Supreme Court to a difficult situation in keeping the higher judiciary beyond political controversies.

The Jatiya Sangsad had amended the constitution introducing the caretaker government system in the country in 1996 after a protracted campaign by the then main opposition Awami League of incumbent Prime Minister Sheikh Hasina.

Awami League at that time feared that elections under the then ruling Bangladesh Nationalist Party could be rigged under the influence of the incumbent regime