The BNP says it is planning to seek a review of the Supreme Court's decision that scrapped the caretaker government system six years ago.
It was originally put in place through the 13th constitutional amendment in 1996 to allow a non-party neutral body to supervise the national election.
But the Awami League-led government scrapped the system in 2011 after winning the 2008 election.
The last 2007-08 military-backed caretaker government, headed by Fakhruddin Ahmed, overstayed its three-month tenure. Both Awami League chief Sheikh Hasina and BNP Chairperson Khaleda Zia were incarcerated during the interim government.
However, the BNP-led alliance boycotted the 2014 parliamentary polls demanding supervision by a non-party body.
BNP policymakers have become hopeful of a successful review after the top court on July 3 cancelled the 16th amendment, stripping the parliament off its power to impeach Supreme Court judges.
In a meeting on Monday, BNP chief Khaleda asked pro-BNP lawyers to look for any possibility, though some party leaders and lawyers were dubious over getting any positive outcome.
Senior lawyer Khandaker Mahbub Hossain said: “As per the Constitution, the Appellate Division can review any of its previous verdict at its own will or following petition of any aggrieved person.”
After getting the review petition, the apex court will check out the scope for holding a hearing on the plea, he said.
Barrister Rokonuddin Mahmud said a review petition could be filed.
When asked, ruling Awami League Advisory Council Member Shafique Ahmed said: “There is scope for a review. All verdicts can be reviewed.”
However, Attorney General Mahbubey Alam has ruled out the matter. “Why aggrieved now?” he asked. “As an election was held on January 5, 2014 under partisan government, now there’s no need for the review.”
But Khandaker Mahbub said: “Appellate Division has the power to review as per section 105 of the Constitution. And this power is exercised for verdict of different cases.”
Section 105 of the Bangladesh Constitution says: “The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.”
The attorney general said that review had a time limitation. “But the Appellate Division can accept review petition by cancelling the limitation,” he added.
Wishing anonymity, an amicus curiae, who attended the May 10, 2011 hearing, said: “In the brief verdict, the then chief justice ABM Khairul Haque said two more elections can be held under caretaker government.
“But it was deleted in the full verdict. Later [the then] Justice SK Sinha wrote that next two elections will be held under caretaker government.”
Khandaker Mahbub, too confirmed the matter. “This question should also be raised. The full verdict was different from the brief one. A full bench needs to sit in order to change even a single word after the verdict.”
Three national elections were held under the caretaker system before it was rescinded in 2011.
“We can file a review as long as we think the judiciary won’t be politically influenced,” Khandaker Mahbub said.
He said they were also worried if the court turns down their plea, it would affect their planned political movement.
“The recent elections held under partisan government were not fair, so the court can reconsider,” the BNP lawyer hoped.
Supreme Court Bar Association Secretary General, also BNP Joint Secretary General, Mahbub Uddin Khokan said there were scopes for filing review plea as it happened in Moudud’s case.
Senior BNP leader Barrister Aminul Haque concurred.
Another senior BNP lawyer said the party might take legal help from senior solicitors including Dr Kamal Hossain, barrister Amirul Islam and barrister Rokonuddin.
One of the three above mentioned senior lawyers said: “BNP should file the review plea. In fact it could have been filed earlier. But their lawyers can not help in this regard. Moving the court with lawyers who are experts on Constitutional laws will be effective.”
BNP Standing Committee Member Barrister Moudud Ahmed said: “The government was supposed to challenge the verdict. But it won’t as it is happy with the cancellation [of the caretaker system].”
“Review can be filed in future,” he opined.
Explaining the legal term, former law minister Moudud said: “The Appeal can be accompanied by an application seeking condonation of delay. The court is empowered to condone the delay, in cases where a party shows sufficient cause in not preferring the appeal within the period of limitation.
“The case is same as the review over my house. The government filed appeal after seven years; the same can happen in this case. One needs to apologise for the delay to file review after the time limit.”
The story was first published in Bangla Tribune