The Appellate Division has granted leave to appeal against the verdict scrapping the caretaker government system. The court will hold a fresh hearing on October 21.
The decision came Wednesday from a seven-member bench of the Appellate Division, headed by Chief Justice Dr Syed Refaat Ahmed.
Barrister Ruhul Quddus Kajol and Advocate Mohammad Shishir Monir argued for the petitioners, while Attorney General Mohammad Asaduzzaman appeared for the state.
During the hearing, Chief Justice Refaat Ahmed observed that the Appellate Division does not want to bring back the caretaker government merely as a temporary fix.
Rather, it seeks an effective solution for an election-time government, one that will prevent repeated disruptions and leave a lasting impact on democracy. He also raised the question of when such a system, if restored, would take effect.
Attorney General Asaduzzaman said over the last decade and a half, people had been exploited instead of governed, facing abductions, killings, extrajudicial executions, and political repression. He argued that safeguards against such abuses were destroyed, denying people justice.
This, he said, led to the fall of the Awami League through a mass uprising, which in turn determined who would be Chief Justice and who would head the government. “The people’s power cannot be ignored. Any attempt to do so sparks revolution,” he added, citing the background of the 1990 uprising.
Later, the Appellate Division granted permission for the appeal and fixed October 21 for the hearing.
Earlier, on April 6, 2011, the Appellate Division had concluded hearings on the appeal and kept the matter pending for judgment (CAV). On May 10 the same year, the court declared the 13th Amendment to the Constitution—which introduced the caretaker government—illegal and struck it down.
However, the court noted that the 10th and 11th parliamentary elections could still be held under the caretaker system, with the Chief Adviser chosen through parliamentary consensus. The verdict was delivered by a full bench led by then Chief Justice ABM Khairul Haque.
The court further ruled that the 13th Amendment was unconstitutional from that point forward, but, under long-standing legal principles of necessity and public safety, the 10th and 11th elections could proceed under it.
Parliament, however, retained full freedom to abolish the provision for appointing a Chief Adviser from among former or sitting chief justices. The court also dismissed a pending leave-to-appeal petition filed in 2005.
Reacting to the verdict at the time, petitioner Abdul Mannan Khan said it would strengthen democracy and judicial independence.
Petitioners’ counsel MI Faruqi said the ruling protected the Constitution, democracy, and the nation, adding that the caretaker system was essentially another form of military rule.
Amicus curiae Dr M Zahir said, “It’s a good verdict. I have long argued for keeping judges away from the caretaker process, and this reflects that view.”
Meanwhile, on August 25 this year, five individuals, including Sujan secretary Badiul Alam Majumdar, filed a review petition challenging the 2011 verdict striking down the caretaker system. Others included Tofail Ahmed, M Hafiz Uddin Khan, Zobairul Haque Bhuiyan, and Zahra Rahman. They were represented by Advocate Sharif Bhuiyan and Barrister Tanim Hossain Shawon.
On October 16, BNP Secretary General Mirza Fakhrul Islam Alamgir also filed a review petition through lawyer Zainul Abedin.
Most recently, on October 23, Bangladesh Jamaat-e-Islami filed a review petition as well. Party Secretary General Mia Golam Porwar submitted it to the Appellate Division, lawyer Mohammad Shishir Monir said.
For context, the 13th Amendment, which introduced the caretaker system, was passed by parliament in 1996. Its legality was challenged by Advocate M Salim Ullah and two others, but the High Court upheld it on August 4 that year. In 2005, the petitioners appealed.
The Appellate Division then appointed eight amici curiae. Of them, five—including Dr Kamal Hossain, TH Khan, former attorney general Mahmudul Islam, Barrister M Amir-ul Islam, and Barrister Rokanuddin Mahmud—supported the caretaker system. Barrister Ajmalul Hossain KC opposed it, while Barrister Rafique-ul Huq and Dr M Zahir suggested reforms. Then Attorney General Mahbubey Alam also spoke in favour of retaining it.