Q: What are the relevant Judgements? Why should these be called as ‘Kalidas Pandit’s Style’?
A : The Constitution (Fifth Amendment) Act’s cases, - when Judgement was delivered regarding Moon cinema issue in 2006 by Justice A.B.M Khairul Haque, and Justice A.T.M Fazle Kabir, a bye-product Judgement sprouted out voluntarily on the Constitution (Fifth Amendment). The said Judgement declared the Fifth Amendment illegal and void ab initio subject to some condonations which did not include Article 148 (Third Schedule item 16) for ‘Oath’ to be taken by C.J. and Judges of the S.C. which says, - “That I will preserve, protect and defend the Constitution and the laws of Bangladesh”
Since the C.J and Judges under oathbound were to defend every Article of the Constitution in vogue as at the time of taking oath otherwise it would be tantamount to felling off the branch-trunk they are sitting on (Panditji’s Style). However, it did not refrain them from advising Parliament to process for relevant amendments.
The Judgement includes, inter alia, that of the Appellate Division, Full Judgement dated 01-02-2010 on the Fifth Amendment and the Short Order (01-05-2011) and Full Judgement (16-09-2012) on the Thirteenth Amendment.

Q: Why was there a gap of 16 months in between short order (on 10/05/11) and full Judgement (on 16/09/12) on the Care-taker Govt.? Who can vouch that there had not been substantial change in scenarios in between? Moreover, how can an Hon’ble Judge sign a Judgement after his retirement?
A: Short order might have been issued after completion of all hearings as well as after, usually and normally, drafting of full Judgement. Only for nitty-gritty refinement the Full Judgement may take a few days more. But a period of 16 months delay to do that as well as some new inputs having been inserted, may raise a question like ‘dal me kuchh kala hai’ i.e.- dubious suspicion. Short order to expedite things, in judiciary, is not also praiseworthy, for justice hurried is justice buried. It smells rat.
Moreover, all the 7 concerned Hon’ble Judges, having signed the Full Judgement shall remain responsible for the new inputs added in the Full Judgement though these were not in the Short Order.
When a Judge (CJ.) is retired he is no more under oath. As such he can not and must not sign a Judgement which he did not sign earlier.
There are no such instances. Justice T.H.Khan rightly stated as to no Judge should have singed Judgement after retirement. Barrister Rafiqul Huq a senior lawyer of high repute, also opined the same way on a T.V-Channel, that except, as he stated, a single case as far as he remembered, when the Hon’ble Judge died an exception was made within the parameters of laws.
Some references as under may be cited: - (i) Canadian Chief Justice John Owen Wilson on signing of Judgement after retirement said:-
-‘A Month delay is normal. Two months delay is long. And Three months delay is too long.’
(ii) Case - Canadian Supreme Court
C.U. V Alberta (2004) SCR
Section 41.1(1) of the Canadian Supreme Court Act 2001:- A Judge of the Supreme Court of Canada who has retired may, with the approval of the Chief Justice of Canada continue to participate in Judgements in which he or she participated before retiring, for a period not greater than six months after the date of the retirement.
As a matter of fact a delay of 16 months is obviously uncondonable. The full Judgement tends to be an infraction, for we all know Justice delayed, Justice denied.
“Delaying justice and denying justice are considered as the same thing in the Magna Carta,” by - Justice Willes of the English Court of King’s Bench in 1759 case Whitham V Hall.

Q: What are the major changes in Articles 56, 58, 72 and 123 of the Constitution of 1972, 1996 and 2011?
A: The following chart is enough to show at a glance:-

Q: The Govt. says Care-taker Govt. under the Thirteenth Amendment is an unelected body to run the Country. Is it true?
A: It is true but so has been embodied in the Constitution? Ministers under 10% technocrat quota, are they not unelected? 10% quota was in 1996 Constitution and it is in 2011.

Q: Article 56(4) says, — PM/Ministers appointed shall continue to be MP’s during dessolation only with regard to discharge of duties in the interim Govt. What is the position of Care-taker Govt. Council of Advisors?
A: Interim Govt. PM/Minister remain MPs ‘notionally’ in the interim Govt. and nothing else, as there is no Parliament in vogue. Similarly, Council of Advisors as per Thirteenth Amendment of Care-taker Govt. will have the status of PM/Ministers and position whether in the interim Govt. or Care-taker Govt. makes no difference. There is no elected Govt. here as well as no structural change.

Q: During dissolution of Parliament whether there is an interim Govt. or Care-taker Govt. there is no Parliament, Therefore, the Cabinet or Council of Advisors remain responsible to the President. Where is the difference in the power structure of the President?
A: No difference.
Q: The Constitution (Fifth Amendment) Act’s case:- Was not the Judgement issued on pick and choose method as well as ‘head’ I win ‘tail’ you loose methodology applied? The Judgement in the High Court Division gave some condonations on the Fifth Amendment and later the Appellate Division of Supreme Court (AD of S.C.) directed some more adjustments in the condonations. Hence, on overall the Fifth Amendment was repealed. But based on ‘That which otherwise is not lawful, necessity makes lawful’ and ‘safety for people is the supreme law’, as well as ‘Safety of the state is the supreme law’, all acts and things done and actions and proceedings taken during the period from 15-08-75 to 09-04-79 have been condoned as past and closed transactions.
Similarly, the Judgement of the AD of SC in its Summary item 16 has condoned all acts/ actions taken during the additional two years after 1/11 of 2007. Good enough, but while judiciary advocates for more power of the people why did it not then spare Article 142(1)(b), 1(A), 1(B) and 1(C) with regard to Referendum necessary to amend certain Articles of the Constitution. Does it not give more power to the people to amend certain basic structural change in the Constitution? Perhaps, the SC did really overlook this aspect.
A: Yes, repeal of Article 142(1)(b), 1(A), 1(B) & 1(C) is conceptually a contradiction of the judiciary.

Q: Often, it is heard that the 10th and 11th Parliaments election may be held through Care-taker Govt. system after adopting some changes in the composition of the Council of Advisors as repeal of the Thirteenth Amendment has conditionally been agreed to ‘prospectively’. Why do some experts /leaders then say that it is merely an observation of the SC and not a direction?
A: Summary of the Judgement at 45 of page 341 of Part II i.e. the order is categorical that the Thirteenth Amendment has been repealed subject to prospective adoption of Care-taker Govt. for the 10th and 11th Parliaments keeping the Care-taker Govt. system with some changes in the composition of the Council of Advisors. It is, therefore, a clear direction. No way that the Govt. should hold election without Care-taker Govt. system. It is irony of fate that the Govt. wants to accept some part, suitable to it, of the Judgement but reject the portion not very propitious to it, as if “accept the Judgement but the valuable palm tree must belong to me”

Q: Article 123 (3)(a) for ‘on term dissolution’ and (b) for ‘earlier dissolution’: In both the cases the period is 90 days either proceeding the dissolution or 90 days after the dissolution respectively. No where the period of 42 days has been mentioned. At page 340 of part II of the Judgement item (12) a proposal for 42 days has been raised having shown no basis though. Is it a made-up guess for some agenda?
A: Agenda or no agenda, period of 42 days has no relevance. It is an arbitrary proposal. Basis can be 90 days as envisaged in the Constitution. This is needed to organise transfers, postings, deployments, scrutinies and so forth. Beyond the Constitutional proviso one may perhaps make an attempt to compute the days as:-
From declaration of election schedule or withdrawal of candidature date to publication of results (may not be gazette date), in either cases election rules and regulations as per RPO leave a tolerance limit to the discretion of Election Commission. Computation of 42 days can hardly be made in the light of RPO.

Q: Reference is often made to the 1/11 case and deferment of the 9th Parliament election by over two years. Can it be attributed to the loopeholes in the Thirteenth Amendment?
A: Yes, it is. Due to lacunae in setting the Articles 57, 58c, 72, 123 and 141 in the framework of Thirteenth amendment, the usurpers in 1/11 case did find some legal coverage, though not on good footing, to prolong the Care-taker Govt. rule beyond 90 days i.e.- more than two years. (Reference may be made to pages 66 to 69 of the Book “Laws, Unlaws, Above-laws, Outlaws, and In-laws” of the author for remedial measure.)
Usurper has hundred and one excuses, if it so wants, to abrogate the Constitution and do things the way it deems fit.
Need of the hour is that there has to be a propitious wind of democracy and tolerance all the way through, amongst the Govt. the Oppositions, the people, civil and defense officials as well as civil societies, otherwise democracy will remain a far cry.

Q: Article 72 (3) says Parliament stands dissolved on the expiry of 5 years from the date of its first meeting and Article 123 (3)(a) says election has to be held during the preceeding 90 days when dissolution takes place upon expiration of its term, i.e. 5 years, and 123(3)(b) says that in case of other dissolutions i.e. before 5 years period, election is to be held 90 days after such dissolution. Do you find any anomalies in it, though it has already been put into operation by the Fifteenth Amendment?
A: Yes, there are, of course, some anomalies leaving some scope for manipulation:-
For example, Article 123(3)(a):- election needs to be held during preceeding 90 days of dissolution and Article 72(3) says the term of Parliament is 5 years. How can one hold election in the preceeding 90 days from that of the end of 5 years term? MPs will remain MPs until the last day before dissolution. There is no honest answer to it. It may, however, be circumvented by a make-shift amendment that upon declaration of election schedule MPs’ shall no more be MPs i.e. it will construe a ‘notional’ dissolution of Parliament. Hence Article 123(3)(a) is to be amended as :-
“Provided that this Article shall be operable subject to provision of Article 72(3).”
In other words Article 72(3) needs to be amended as well with the proviso that, “Parliament shall be dissolved within 5 years term but MPs shall stand as no more MPs upon declaration of election schedule.”
Farther, the Article 72(3) needs to be made effective subject to the proviso of the Article 123(3)(b) which in turn needs an amendment to the effect that:- “Provided such dissolution takes place before 90 days preceding the expiration of its term.”
One may wonder as to how our Parliament adopted the Constitution of 2011! This has obviously exposed the hidden agenda of the Govt. to remain in power during election for finer tuning of the results.

Q: Parliament had amended the Constitution and printed it long before the Full Judgement on the Thirteenth Amendment was given. Is it ok?
A: After having been printed 2011 Constitution, the Thirteenth Amendment Judgement has become a futile exercise, indeed!

Q: (i) The power and authority of the SC are well defined. Apart from hearing of cases and giving verdicts when it finds that some correct interpretation of the Constitution as well as laws is needed, it shall ask the Govt. for necessary amendments.
(ii) When matters are referred to the SC by the President, it shall give its advices so needed.
It is found that in the Judgement the SC gave verdict repealing Constitutional provisions on its own e.g. The Fifth Amendments, the Thirteenth Amendment and so on have thus been repealed. How does this concept fit in as per provision of Article 142?
A: It is a case of overstepping. The SC can, at best as far as it can be, say that these are repealable (and not that it is herely repealed) and it is upto Parliament to process for such amendments. Thus, the Judgement in question is ultra vires of the Constitution.
In the Judgement the opinions of Justice M.A. Wahab Miah, Justice Nazmun Ara Sultana and Justice Mohammed Imman Ali have happened to be towards the right direction. That shows their acumen and prudence. It would have been, however, praiseworthy should they have refrained from signing the Full Judgment after a lapse of 16 month from that of the Short Order and that too upon retirement of the former CJ.

Q: What is the way out? What is our remedy to overcome present impasse for the 10th Parliament Election? Does the solution depend upon a political will by all concerned? Do we need quality leadership and based on Rudyard Kipling’s can we say? ---that,