Provision of caretaker govt challenged

The High Court yesterday directed the government and the Chief Election Commissioner to show cause why the Constitution (Thirteen Amendment) Act, 1996 introducing the provision of neutral and non-partisan caretaker government to hold parliamentary election should not be declared ultra vires of the Constitution and having no legal effect.

A Division Bench of the HC comprising Justice Mohammad Fazlul Karim and Justice MA Wahhab Mia passed the order upon a writ petition of Advocate M Saleemullah.

The 6th Parliament which existed only for 13 days passed the 13th Amendment Bill on March 26, 1996, and on March 28, 1996, President Abdur Rahman Biswas assented to it.

Advocate MI Faruqui, counsel for the petitioner submitted, "The Act introduced in the Constitution the concept of non-representative government in violation of the basic and fundamental concept of democracy and mandatory provision of Article 142 (1A) of the Constitution."

As per Article 142 (1A), the President will refer any Bill for referendum within seven days of its receipt if it seeks amendment to the preamble or any provision of Articles 8, 48, 56 or Article 142 (1A).

"Though the impugned Act has amended by addition Articles 48 and 56 of the Constitution, it was not referred for a referendum whether the Bill should or should not be assented to," submitted the lawyer of the petitioner.

He argued, "The Constitution's cornerstone is democracy. The Parliament and the President can not give democracy a go-by and introduce a non-elected and non-representative government."

The preamble of the Constitution followed by Articles 7, 8, 9, 10, 11 and the concept of elected members of the legislature under Part V clearly direct that the republic would be run by elected representatives of the people and therefore there is no scope to create any non-representative government to rule the country, the petitioner's lawyer submitted.

He argued, "The Parliament can not destroy the basic character of the Constitution by keeping in abeyance the republican character of the People's Republic of Bangladesh for 90 days. It can destroy the democratic values ensured and enshrined in the Constitution, and as such, the impugned Act is liable to be declared ultra vires to the Constitution."

Opposing the petition, Attorney General Mahmudul Islam submitted that the 13th Amendment Act should be considered in the context of reality and events that took place during that time.

Discarding the plea for referendum, he said, "Sometimes, mass democracy destroys the democracy."

The Attorney General argued that the Act is neither inconsistent with Article 48 nor it affects Article 56 of the Constitution. Therefore there was no necessity of referring the same for referendum.