Any constitutional move made to strengthen democracy won't go against basic structure: Attorney general
The attorney general said the reasoning behind abolishing the caretaker government system was motivated and flawed
Attorney General Md Asaduzzaman has said that any constitutional move aimed at strengthening democracy will remain within the bounds of the Constitution's basic structure, stressing that such reforms cannot contradict the nation's fundamental legal framework.
He made the remark today (6 November) during the ninth day of the appeal hearing on the caretaker government system.
The attorney general said the reasoning behind abolishing the caretaker government system was motivated and flawed.
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"If there is any word worse than 'bad' as the opposite of 'good,' that would describe the act of abolishing this system," he added.
Yesterday (5 November), the BNP concluded its arguments before a full seven-member Appellate Bench headed by Chief Justice Syed Refaat Ahmed.
On that day, BNP's lawyer Barrister Ruhul Quddus Kajol said the verdict that abolished the caretaker government system was tantamount to deceiving the nation. He added that even if the verdict is delivered before the upcoming election, the 13th national polls will still be held under an interim government.
On 17 December last year, the High Court declared parts of the 15th amendment, including provisions abolishing the caretaker government system, unconstitutional. The court also restored the provision for a national referendum. However, it did not strike down the entire amendment.
In its observation, the court said democracy is an integral part of the constitution's basic structure and can flourish only through free, fair and impartial elections.
It noted that the last three parliamentary polls under partisan governments failed to reflect the people's will, eroding public confidence in credible elections – a situation that ultimately led to the July uprising.
"The caretaker government system had been incorporated into the constitution in line with public aspiration and had become part of its basic structure," the High Court further said.
The High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict. The court declared Articles 20 and 21 of the 15th Amendment, which abolished the caretaker government system, to be unconstitutional and void. In its ruling, the court observed that these provisions had destroyed the fundamental structure of the constitution, particularly democracy.
The court also struck down Articles 7A, 7B, and 44(2), which were introduced by the 15th Amendment, on the grounds that they were inconsistent with the constitution. The 15th Amendment had brought changes, insertions, and replacements to a total of 54 provisions of the constitution.
In its ruling, the court said that the 15th Amendment would not be entirely invalidated. The remaining provisions may be amended, refined, or altered by the next parliament in accordance with public opinion and existing laws. These include provisions recognising the Father of the Nation and the 26 March speech.
Regarding the national referendum, the High Court noted that the provision had been abolished, though it was part of Article 142 of the constitution. Section 47 of the 15th Amendment, which removed the referendum clause, was declared void as it contradicted the constitution's basic structure. As a result, Article 142 of the 12th Amendment has been reinstated.
Articles 7A, 7B and 44(2) were also declared void. Article 7A had made cancellation or suspension of the constitution a punishable offence, while Article 7B prohibited amendment of its fundamental principles. Article 44(2) concerned the enforcement of fundamental rights, allowing parliament to empower subordinate courts to exercise similar jurisdiction under Article 102. This clause has now been annulled by the court.
