In a landmark verdict, the High Court on Tuesday scrapped several provisions of the constitution's 15th amendment that cancelled the provision of the non-party caretaker government system and restored the provision of referendum for bringing any amendment to the Constitution.
The HC verdict observed that the abolition of the non-party caretaker government system is void and unconstitutional as the abolition has destroyed democracy, free and fair elections, independence of judiciary which are the basic structures of the Constitution.
The HC bench comprising Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict after final hearing on two separate writ petitions filed challenging the legality of the 15th amendment to the Constitution.
It said that the 2011 judgement delivered by the Appellate Division, led by former chief justice ABM Khairul Haque, destroyed the basic structure of the Constitution as the core of the Constitution lies in democracy, which can only be ensured through free, fair and credible elections.
The beauty of the Constitution lies in empowering the people. The people are the source of all power, the court noted in its judgment, reinforcing the necessity of a mechanism to preserve democratic values.
The High Court reiterated that the abolition of the caretaker government system disrupted the nation's democratic structure, as it was originally enacted to ensure impartial elections and foster political stability. The court observed, "Caretaker governments were formed through political consensus and have since become a fundamental part of the Constitution's foundation."
However, the HC verdict did not interfere with the provisions of the 15th Amendment Act which deals with the state principles including the secularism, socialism, state region, nationalism, father of the nation and number of reserved seats for women in parliament, saying that the future governments will take the decision about these issues in the Parliament as the people will.
The HC also struck down articles 7 (A) and 7 (B) of the Constitution, declaring them void and unconstitutional.
Article 7 (A) of the Bangladesh Constitution pertained to the use of force and other unconstitutional means to "abrogate, repeal or suspend" the Constitutions or any of its articles.
Article 7 (B) makes certain parts of the Constitution unamendable "by way of insertion, modification, substitution, repeal or by any other means."
The HC verdict also clarified the current interim government is not a caretaker government stating that the present government is totally different as it was formed by the President after he sought the opinion of the Appellate Division of Supreme Court under article 106 of the Constitution.
During the hearing on the petitions, Attorney General Md Asaduzzaman and Deputy Attorney General Md Asad Uddin represented the state. Senior lawyer Dr Sharif Bhuiyan argued on behalf of the petitioners, including Badiul Alam Majumdar of SUJAN, while BNP's counsel included senior lawyers Zainul Abedin, Barrister Badruddoza Badal, Barrister Ruhul Quddus Kajol, and Advocate Farzana Sharmin Putul. Jamaat-e-Islami was represented by Advocate Mohammad Shishir Manir and Barrister Ehsan Siddique, while Advocate Ishrat Hasan spoke for Insaniyat Biplob. Additionally, Barrister Junaid Ahmed Chowdhury appeared for four other petitioners, and Barrister Hamidul Misbah argued as an intervener.
After the HC verdict, Attorney General Md Asaduzzaman told reporters that former chief justices ABM Khairul Haque and Syed Mahmud Hossain undermined the judiciary, which triggered the July revolution resulting in numerous deaths.
The Attorney General demanded accountability, stating that both former chief justices should face punishment.
In responding to a query, the chief law officer of the state said that the caretaker government system could not be restored immediately as a review petition is currently pending with the Appellate Division over the matter. Soon after the apex court order regarding the matter, the caretaker government system will be restored automatically, he added.
The 15th amendment to the Constitution was introduced during the Awami League government, with the bill passed on 30 June 2011, and a gazette published on 3 July 2011.
The amendment abolished the caretaker government system and increased the number of reserved seats for women in parliament from 45 to 50.
It also criminalised the unconstitutional seizure of state power as treason, punishable by the maximum penalty, constitutionally recognise Sheikh Mujibur Rahman as the Father of the Nation, restored secularism and religious freedom, and reintroduced nationalism, socialism, democracy, and secularism as state principles.
Additionally, it changed the election timeline, requiring elections to be held within 90 days preceding the end of parliament's term, instead of within 90 days after the term's expiry.
On October 19, the HC bench led by Justice Farah Mahbub issued a rule asking the government to explain why the Constitution (15th Amendment) Act, 2011, should not be declared unconstitutional. It also questioned why actions taken under the amendment should not be invalidated.
On August 19, another HC bench led by Justice Naima Haider, who is currently on leave, issued a similar rule following a writ petition filed by five citizens.
The petitioners included - Badiul Alam Majumdar, Secretary of Shushashoner Jonno Nagorik, along with Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan, and Zahrah Rahman. The petitioners, submitting their case as a public interest litigation, argued that the abolition of the non-party caretaker government system through the 15th amendment led to three consecutive disputed elections in 2014, 2018, and 2024.
Apart from the writ petitioners and the state, few political parties, including BNP and Jamaat-e-Islami and some SC lawyers have placed arguments before the HC against the 15th amendment and in favour of the caretaker government system.
Later, extensive hearings were held over several dates including 30 October, 6, 7, 10, 13, 14, 20, 25, 27 and November 28 and December 1.
On December 5, the bench fixed December 17 for the pronouncement of the judgement after concluding hearings on the petitions. It finally delivered the historic verdict by restoring the caretaker government system for national polls.
