Former chief justice ABM Khairul Haque says the Supreme Court verdict regarding the 13th constitutional amendment gave a clear direction for the poll-time administration, but the politicians were engaged in an unnecessary debate for the sake of confrontation.
“The political parties will have to find a solution by picking an option, or the crisis will deepen,” Khairul Haque said in an exclusive interview with the Dhaka Tribune.
“Some people are trying to make it an issue because if they accept the verdict there will be nothing for them to quarrel over.
These people do not want a solution to the problem because they will not be able to fight if it is resolved,” the former chief justice said.
He said the parties agree with the verdict only as far as it suits them. “All problems will be resolved if the parties accept the whole verdict.”
Justice Khairul reads the copy of the verdict whenever he hears criticism of it, and every time he discovers that he has given a “perfect judgement.”
In a verdict on May 10, 2011, the Appellate Division declared the non-party caretaker government system illegal. At the same time, observed that the next two national elections could be arranged under this system if parliament so decides. In its short verdict the court also said the judiciary should be kept out of the caretaker system if parliament decided to continue with it.
However, in its full verdict published on September 16 last year, nearly 16 months after the order was passed, it kept the option open for parliament to choose a former chief justice to head the caretaker administration.
Of the seven judges of the Supreme Court, four declared the non-party caretaker system illegal and contrary to constitution, two were in favour of continuing the system and one suggested leaving it for parliament to decide.
The ruling Awami League hailed the verdict; the opposition BNP rejected it.
Solution within verdict
Many people think there is no scope in the verdict to resolve the political crisis. Justice Khairul, however, thinks the solution does lie in the verdict and the current crisis will disappear if the recommendations are followed.
Two processes were mentioned in the verdict for resolving the crisis. If there were no process outlined in the verdict, then it could be said that the verdict could not resolve the standoff, he said.
One process states that parliament must be dissolved 42 days before the national elections and a small-scale cabinet formed. Parliament will decide how that cabinet would be constituted. As criticism is usually raised against unelected people, the verdict opted for elected representatives. The court thinks a government without representatives selected by the people cannot be acceptable.
According to Justice Khairul, the 42-day timeframe is sensible. All election-related activities can be done within it. “But, if the lawmakers deem it necessary, they may revise the timeframe to 30 or 60 days.
“If they do not like this process, they can keep the caretaker government system for the next two terms to hold the national elections although it is illegal and contradictory to the constitution.
“If the political parties fail to reach any consensus, they can again go with the idea of selecting the former chief justice to head the caretaker government.
“Being a judge, I cannot deliver a directive for parliament. And that is why I left open different ways and also spoke for what can be done and what are the necessities. These two options have been kept technically. I think the lawmakers will have to go for one in the future whatever form of government they choose,” Justice Khairul said.
On the question of why he did not suggested a specific method for the next election, he said: “That would not have been the right thing to do…it might seem imposed. What has been done is correct.”
He said it is the lawmakers who would decide whether the polls would be held under a caretaker government or an interim government formed by representatives selected by the lawmakers.
But, whatever system the political parties choose, the Election Commission should play the key role in holding the elections and there should not be any scope for the caretaker government or an interim cabinet to play any role in it. That is why the verdict suggested that the EC be made all-powerful in arranging the general elections.
Questions baseless
Asked about his stance if the political parties agree to hold the next two national elections under a caretaker government and ask him to take the charge, Justice Khairul replied: “If any political party makes this proposal I will catch the next flight to London to stay with my daughter living there. I will not stay even in the country.”
The caretaker government under which the last three elections were held, was introduced first in 1996 (the 1990 elections were held under an interim government). The BNP introduced the caretaker government system through the 13th amendment as the then opposition The Awami League staged street protest demanding elections under a non-party administration.
But the system was called into question as the last military-backed caretaker government in 2007 prolonged its tenure to two years though the underlying idea was that the caretaker administration would hold the elections within three months and hand over power to elected representatives.
The Awami League-led grand alliance government abolished the provision through the 15th amendment in June 2011 following court verdict.
Happy with verdict
“Although there is discussion over and criticism against my verdict, I am satisfied with it. There could not be a much better verdict on this issue. That is why I am happy. I tried to deliver the verdict in such a way that no crisis would appear. I have also worked hard for this.
Retirement does not matter
Justice Khairul gave his reaction to the debate about whether a judge can write a verdict after retiring.
“There is no legal bar to writing verdict after a chief justice goes into retirement. In the Appellate Division, many judges wrote verdicts after their retirement. If any rule barring justices from writing verdicts after retirement exists, many verdicts would have been cancelled. But there is no such rule. So a justice may finish writing his or her verdict even after going into retirement. People who raise such questions are wrong. I wrote the verdict from the feeling of responsibility. No government benefit was given for writing this verdict. Lots of hard work went into preparing the verdict. And there is a history of misery behind writing this verdict. Whereas remuneration should have been given for writing it, some people want to create debate raising the question of [my] authority.”