BNP questions 15th amendment, says caretaker govt system not invalid

Questioning the legality of the 15th amendment, which scrapped the caretaker government provision, the BNP has said scope for this system still exists within the current constitutional framework. However, the government keeps denying it through reference to the Supreme Court verdict of 2011. 

The government also weaponised the constitution and destroyed the 1996 political settlement that brought in the 13th amendment, which had paved the way for elections to be held under a neutral caretaker government, it further said.   

The opposition party pointed out that the Supreme Court verdict declaring the constitutional provision illegal also had stated that the voided system could be practised for another two parliamentary terms.

But the 10th and 11th parliamentary elections were held in violation of the court's mandate and as such these are "non-existent elections". The legal imperative is that the "constitutional error" thus committed needs to be "set right in no time". 

To discuss these issues, the BNP organised a seminar in the capital on Wednesday, titled "Constitutionality of the Fifteenth Amendment: Non-Partisan Caretaker Government Still Constitutional".

The keynote paper presented at the seminar argued that the caretaker government system was not declared void instantly but "prospectively", in other words, after the holding of two subsequent elections.  

"On 10 May 2011, in the 13th Amendment case, the Appellate Division of the Supreme Court through a 'short order' authored by Chief Justice ABM Khairul Haque declared the 13th Amendment 'prospectively' void after the 10th and 11th parliamentary elections, although two High Court benches had earlier found the 13th amendment constitutional and in order," it read. 

Thus, in repealing the caretaker system through the enactment of the 15th amendment by referring to the SC verdict, the government committed fraud on the nation, stated the keynote paper.

In the current context of a grave political impasse, it is undoubtedly high time for the application of the doctrine of necessity which asserts that where a constitutional provision is otherwise not lawful, it is necessity which makes it lawful, it said.

The BNP leaders present at the programme reiterated that free, fair and credible and participatory elections are impossible under the incumbent government. The only solution lies in holding an election under an election-time neutral government, whatever its title, it said. 

Talking to The Business Standard after the seminar, BNP Standing Committee member Selima Rahman said Justice Khairul Haque's judgment was illegal as he had signed the full verdict after he went into retirement. 

"That is why there is scope for a caretaker government within the current constitution, but the Awami League is now rejecting the caretaker government provision by using the court verdict as an excuse," she said.

Agreeing with her, BNP Vice Chairman Advocate Zainul Abedin said that it was 16 months after the verdict on the 13th amendment that former Justice Khairul Haque signed the full verdict. "This is judicial dishonesty."

Barrister Mahbub Uddin Khokon, joint secretary general of the BNP, said since two national parliamentary polls were not held under the caretaker government, the next two general elections can be held through using the system.

What the paper says on 15th amendment 

The unilateral passage of the 15th amendment in a "majoritarian" manner, by the AL-led alliance in 2011, in essence transformed the constitution into a weapon that destroyed the political settlement reached in 1996 through the introduction of the caretaker provision by the 13th amendment. 

The legitimacy and constitutional validity of the 15th amendment is questionable on many grounds. Firstly, by passing this amendment without holding a referendum, Article 142 of the constitution was violated. 

Secondly, the Head of the Executive's rejection of the unanimous original recommendation of the special parliamentary committee to keep the caretaker system was a violation of the principle of the separation of powers. 

Thirdly, about one-third of the constitution was made unamendable by the 15th amendment though only the "basic structure" of the constitution is unamendable. 

By rendering almost one-third of the constitution unamendable, the parliament gave those newly designated articles the status of the basic structure, which is a violation of the doctrine of basic structure.

These discussions on the constitutional amendments come a little week after the Chamber Court of the Appellate Division fixed 25 July for hearing the appeal against the dismissal of a writ challenging the validity of the oath taken by 290 lawmakers of the 11th National Parliament and seeking directions for its dissolution.

On July 11, pro-BNP lawyers applied to the court for a date to hear the appeal against the dismissal of the writ challenging the validity of the lawmakers' oath, and to have all 290 seats declared vacant.

On 18 February 2019, the High Court dismissed the writ. 

Earlier, on 8 January 2019, a legal notice was sent to the Speaker of the Jatiya Sangsad, the Chief Election Commissioner and Cabinet Secretary on the matter.

Barrister Mahbub Uddin Khokon, who is also secretary general of the Supreme Court Lawyers Association, had sent the notice on behalf of Supreme Court lawyer Md Taherul Islam Tawheed.

But upon receiving no response to the letter, he filed the writ with the relevant branch of the High Court on 15 January 2019.

Article 123 (3) of the constitution deals with the dissolution of parliament and swearing-in of the members of parliament. As the parliamentarians took the oath again without complying with the article, there are currently two parliaments in force, which violates the constitution, according to the legal notice.

'Only demand this morning' 

Addressing the seminar, BNP Secretary General Mirza Fakhrul said in 2006, Sheikh Hasina said in parliament that the caretaker government needs more reforms for fair and impartial elections, but today she is not standing by her statement.

"The only demand this morning is to have elections held under a neutral non-partisan government. Now there is no other challenge before the nation," he said. 

Hasnat Quaiyum, a member of Rashtro Sangskar Andolon, said the will of two or four judges cannot be overruled by the will of a few judges on a settled issue like the caretaker government system, which was achieved through people's struggle. The decision of the people must be made by the people.

Saiful Haque, general secretary of the Revolutionary Workers Party, said that the crisis is not constitutional; it is political, and it was created by the Awami League.

Abu Saeed Chowdhury, executive president of Gano Forum, said that there is no alternative to the doctrine of necessity to save Bangladesh today. 

Among the guests at the seminar were Sebastian Riger-Brown, first secretary (political), Delegation of the European Union to Bangladesh; Joshua Rosenblum, resident programme manager, Bangladesh programme, International Republican Institute; Matthew Beh, political and labor officer of the US Embassy in Dhaka, and Sharnila Nuzhat Kabir, political and press officer, German Embassy in Dhaka.

BNP officials said the keynote paper had been sent to all embassies and missions in Dhaka.