Bangladesh Nationalist Party lawyer Ruhul Quddus Kajal on Tuesday told the Appellate Division that while the Supreme Court is the guardian of the constitution, it should not interfere in how the state is governed, as that power belongs to parliament.
He also questioned the legality of former chief justice ABM Khairul Haque’s written Appellate Division verdict condoning the extended tenure of the 2007 caretaker government, arguing that the 2008 general election was unconstitutional since it was held beyond the legal 90-day limit of the caretaker government.
Kajal presented his arguments before a seven-member Appellate Division bench headed by chief justice Syed Refaat Ahmed.
The court adjourned the hearing until Wednesday when Kajal is scheduled to conclude his submissions.
Kajal was presenting BNP’s appeal against the 2011 verdict that struck down the 13th Amendment which had introduced the non-party caretaker government system in 1996.
Citing Article 150(1) of the constitution, Kajal said that Justice Khairul Haque’s reliance on transitional provisions to justify the caretaker government’s extended term was legally flawed.
Judicial condonation applies only to court proceedings, not to constitutional violations, he said.
Kajal further argued that the Appellate Division had exceeded its constitutional limits by intruding into the legislative domain.
He said that the court should have confined itself to examining whether the caretaker system conflicted with the basic structure of the constitution under Article 26.
He further argued that the 2011 verdict scrapping the non-party caretaker government system was contradictory and based on personal opinion of Justice Khairul Haque, rather than judicial reasoning.
Kajal argued that the caretaker government scrapping verdict which was penned by Khairul Haque had contradicted itself by declaring the caretaker system unconstitutional while also suggesting that the next two national elections could still be held under the system.
‘This is nothing but a personal expression of the judge, not a judicial pronouncement,’ Kajal said.
Questioning the basis for setting a 42-day period between parliament’s dissolution and the general election, Kajal said that the 1991 caretaker government headed by former chief justice Shahabuddin Ahmed had successfully held elections within 90 days — a mechanism later incorporated into the constitution through political consensus.
He argued that the Appellate Division could restore the non-party caretaker government system by reviewing its earlier verdict, as a review judgment is considered the court’s final decision.
