The High Court on Tuesday said that the 15th Amendment to the Constitution of Bangladesh contradicts its fundamental framework and undermines key democratic principles, emphasising that there is no legal obstacle to reinstating the caretaker government system.
A High Court bench comprising Justice Farah Mahbub and Justice Debasish Roy Chowdhury made the remarks while delivering its verdict on the highly debated 15th Amendment and the abolition of the caretaker government system.
The court ruled that while the amendment is not entirely void, it has compromised the Constitution's fundamental structure.
In its observations, the High Court said that the core of the Constitution lies in democracy, which can only be upheld through free, fair and credible elections.
It added that the caretaker government system, introduced through political consensus, had become an essential component of the Constitution’s basic framework.
“The beauty of the Constitution lies in empowering people. 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reiterated that the abolition of the caretaker government system disrupted the nation’s democratic structure, as it was originally enacted to ensure impartial elections and foster political stability.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.”
The ruling followed extensive hearings over 23 working days, during which key legal representatives from all concerned parties presented their arguments.
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 Monir 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.
Earlier, on December 5, the court had scheduled the verdict following the prolonged hearings on why the 15th Amendment, which abolished the caretaker government system, should not be declared illegal.
The verdict came four months after the fall of the Sheikh Hasina-led Awami League government in a student-led mass uprising, followed by her fleeing to India.
The caretaker government system, originally introduced to oversee impartial elections, was scrapped through the Fifteenth Amendment in 2011. This move sparked criticism from various political factions and civil society groups.
Legal and political analysts have noted that the High Court’s ruling opens the door for revisiting and restoring the caretaker government framework, a measure many believe is crucial for holding credible elections and ensuring the nation’s democratic stability.
What AG Says
Attorney General (AG) Md Asaduzzaman stated that the High Court did not abolish the 15th Amendment entirely but rather kept some issues, including the father of the nation and the 7th March Speech, pending for Parliament.
Asaduzzaman said this while briefing reporters after the final hearing of two separate petitions in this regard.
Referring to the past three national elections, the court observed how they were conducted, with exiled leaders, a bar on rule of law, biased judicial division, and constitutional interference.
He added that the court did not address the remainder of the 15th Amendment and left these matters for Parliament to decide.
Caretaker Govt’s Start
The first caretaker government in Bangladesh was installed in 1990 under then Chief Justice Shahabuddin Ahmed based on political understanding, without any prior constitutional amendment.
1996 Constitutional Amendment
Khaleda Zia, leader of the Bangladesh Nationalist Party (BNP), became Prime Minister of Bangladesh for the first time after the 1991 general election.
She was reelected in the February 1996 general election, which was conducted by her government.
Major opposition parties, including the Awami League, Jatiya Party and Jamaat-e-Islami, boycotted the election.
As a result, BNP secured a landslide victory, and Khaleda Zia retained her position as Prime Minister.
However, the opposition demanded fresh elections under a neutral caretaker government, leading to widespread violence.
Amid violent protests, new elections were held in June 1996 under a caretaker administration, and the Awami League won the election.
On 28 March 1996, the 13th Amendment to the Constitution was passed, introducing a system of non-party Caretaker Government to oversee general elections.
2006–2008 Caretaker Govt
In late 2006, President Iajuddin Ahmed formed a caretaker government. The role of Chief Advisor was initially intended for Chief Justice KM Hasan, but he could not assume the position.
The Awami League alleged that Hasan had been appointed Chief Justice by the outgoing BNP-led government to manipulate the caretaker system in its favor.
This controversy led to violent unrest, culminating in the cancellation of the January 2007 general election.
Subsequently, Fakhruddin Ahmed formed a new caretaker government in January 2007 with the support of the Bangladesh Armed Forces. This caretaker government remained in power beyond its constitutionally-mandated 120-day term and oversaw the 2008 general election before stepping down.
Abolition
However, the caretaker government system was abolished through the 15th Amendment in 2011, as the Supreme Court struck down the 13th Amendment to the Constitution as illegal.
Since the abolition of the system, BNP and its allies have persistently demanded its reinstatement. The then ruling Awami League, on the other hand, firmly rejected these calls.
What is Next?
Attorney General Mohammad Asaduzzaman said, "The review petition regarding the reinstatement of the Caretaker Government system is under consideration in the Appellate Division. The findings of this order (from the HC) will be presented there. Ultimately, the Appellate Division will make the final decision on the caretaker government system."
Dr Sharif Bhuiyan, the lawyer representing the petitioners challenging the validity of the 15th Amendment, said, "A major obstacle to the return of the caretaker government system has been removed. However, it cannot be said that it has fully returned, as it was abolished in two ways—by the court's order and by the constitutional amendment passed by Parliament."
He noted that Badiul Alam Majumdar and four others have filed a review petition with the Appellate Division on this matter.
A hearing will take place in January, and if the decision is made in favor of the petitioners, the caretaker government system will be reinstated, he added.