Fakhruddin's govt unconstitutional | The Daily Star
12:00 AM, September 18, 2012 / LAST MODIFIED: 12:00 AM, September 18, 2012

Caretaker System Verdict

Fakhruddin's govt unconstitutional

SC condones it for people's sake

The nearly two-year rule of the past caretaker government led by Fakhruddin Ahmed was "absolutely unconstitutional", observed the Supreme Court in its verdict in the constitution's 13th amendment case.
It also said keeping the state of emergency for about two years without the approval of parliament seemed illegal on the face of it.
The apex court, however, condoned all activities of the caretaker government for the sake of state and its people.
"Tenure of the caretaker government [now defunct] can no way be more than 90 days. But the caretaker government [of Fakhruddin Ahmed] has ruled the country completely unconstitutionally for around two years beyond the 90 days timeframe, "said the SC verdict.
On May 10 last year, the then chief justice ABM Khairul Haque led the Appellate Division of the SC to declare illegal the constitution's 13th amendment through which the caretaker government system was introduced in 1996. The full text of the verdict was released on Sunday.
Citing the Election Commission's constitutional obligation, Justice Khairul said all responsibilities for holding the parliamentary polls in time are vested in the EC.
"The onus for violation of the constitution must be put on the EC on its failure to hold the polls in time," he said. "However, validity of the election is not undermined for the delayed election. The election remains valid."
The ninth parliamentary election, which was earlier scheduled for January 22, 2007, was finally held on December 29, 2008, around two years after its schedule. The January 22 parliamentary polls could not be held as the state of emergency was declared in the wake of political turmoil.
The then president Iajuddin Ahmed, who assumed the office of the chief adviser on October 29, 2006, was forced to resign from the post on January 11, 2007, declaring the state of emergency. Then a new caretaker government was installed with Fakhruddin Ahmed as its chief adviser. The changeover took place a few days before expiry of the stipulated 90-day tenure of the caretaker government.
About the state of emergency, Justice Khairul said in the verdict the provisions stipulated in article 141A must be followed to declare the state of emergency and it would remain effective for the period stipulated in the constitution.
He said the state of emergency will remain effective for the period which is possible without the approval of parliament, and after that, it will automatically cease to have effect.
As per article 141A (C), the state of emergency shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of parliament.
Parliament did not exist when the then president declared the state of emergency in January 2007.

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