The Supreme Court has reinstated the caretaker government system, yet it will not be applied to the upcoming election. This has prompted citizens to question why the country must wait until the next parliamentary cycle for its implementation.
The Appellate Division of the Supreme Court has delivered a verdict reinstating the caretaker government system on Thursday. In its short order, the court stated: “The provisions relating to the non-partisan caretaker government shall only be effective on the basis of prospective enforceability.”
As a result, the non-partisan caretaker system will not return for the upcoming election. The implementation must wait until a new parliament is formed and subsequently dissolved.
During the appeal hearing, stakeholders requested reinstatement of the caretaker system from the next (14th) parliamentary election, as the current parliament is non-functional and any constitutional amendment would require formation of a new parliament.
Following the verdict, a key question arose among the public that if the caretaker system has been reinstated, why must the nation wait until the next election for its application?
According to lawyers involved in the case, the verdict has revived the 13th Amendment and the caretaker system — in their words, “revived and restored.”
They noted that its implementation is “subject to enforcement of Article 58B and 58C,” which means that a caretaker government is to be formed within fifteen days of the dissolution of parliament. As there is currently no parliament, the provisions for forming a caretaker government are not immediately enforceable.
A system that existed, then ceased to exist
Debates surrounding whether the non-partisan caretaker government system should remain in the Constitution have long dominated Bangladesh’s political arena. The 13th Amendment, which introduced the caretaker system, was passed in Parliament in 1996.
In 1998, three lawyers, including Advocate M Salim Ullah, filed a writ petition before the High Court challenging the amendment. After primary hearings, the High Court issued a rule questioning the legality of the amendment.
Final hearings were conducted and on August 4, 2004, the High Court dismissed the writ and upheld the validity of the caretaker system.
In 2005, an appeal was filed before the Appellate Division. The court appointed eight amici curiae, five of whom — Dr Kamal Hossain, TH Khan, former attorney general Mahmudul Islam, Barrister M Amirul Islam and Barrister Rokanuddin Mahmud — supported the caretaker system.
Barrister Ajmalul Hossain KC opposed it, while Barrister Rafique-Ul Haque and Dr M Zahir recommended major reforms to the system. The then attorney general, Mahbubey Alam, also supported retaining it.
On May 10, 2011, a seven-member Appellate Division bench led by Chief Justice ABM Khairul Haque declared the Thirteenth Amendment unconstitutional with a majority opinion. Subsequently, the 15th Amendment was passed on June 30, 2011 and gazetted on July 3.
The full judgment was released on September 16, 2012. However, even before its publication, the caretaker system had already been removed through the 15th Amendment enacted by the then Awami League government in 2011. Since then, three national elections have been held under Awami League governments.
How the path to reinstating the caretaker system reopened
After the collapse of the government on August 5, 2024, a review petition seeking reconsideration of the 2011 verdict was filed on August 27, 2024 by five eminent citizens: Badiul Alam Majumdar (Secretary of SUJAN), Tofail Ahmed, M Hafizuddin Khan, Zobairul Haque Bhuiyan and Zahra Rahman.
BNP Secretary General Mirza Fakhrul Islam Alamgir filed a separate review petition on October 16, 2024, followed by one from Bangladesh Jamaat-e-Islami’s Secretary General Professor Mia Golam Porwar, on October 23.
A freedom fighter from Naogaon’s Raninagar, Md Mofazzal Hossain, also filed a similar petition.
Altogether, four review petitions—filed by political parties and individuals—were placed before a full Appellate Division bench. On August 27, the Appellate Division granted leave to appeal against the 2011 judgment and announced that it would hear the appeals.
Hearing on the appeal to reinstate the caretaker system began on October 21, continued on October 22, and proceeded through multiple sessions. Arguments were presented by counsels for SUJAN, Jamaat-e-Islami, BNP and the state.
After ten days of hearings, the seven-member bench led by Chief Justice Dr Syed Refaat Ahmed set November 20 for delivery of the verdict. The judgment was announced accordingly.
Badiul Alam Majumdar, one of the appellants, said that after a long struggle the caretaker system had finally returned.
He said: “The verdict striking down the caretaker system was unconstitutional and flawed. Through that verdict, the then Chief Justice ABM Khairul Haque effectively exiled the nation’s electoral system, resulting in three controversial elections. Today’s verdict will clear the path for free and fair elections.”
What the short order states
All appeals are allowed unanimously, and the civil review petitions are disposed of accordingly. The Court unanimously holds that the Appellate Division judgment under review is manifestly flawed on the face of the record. Therefore, the judgment under review is hereby set aside in its entirety. Consequently, the provisions relating to the non-partisan caretaker government contained in Part IV, Chapter IIA of the Constitution, which were inserted by Section 3 of the Constitution (13th Amendment) Act, 1996, are hereby revived and activated through this judgment.
Although such revival ensures the automatic restoration of the caretaker government provisions in Chapter IIA, the implementation shall be subject to the application of Articles 58B(1) and 58C(2). The restored provisions relating to the non-partisan caretaker government shall only be effective on the basis of prospective applicability.
The full reasoning of the verdict will be delivered later, the court said.
Calling the day “a day like Eid for the people of Bangladesh,” Senior Advocate Zainul Abedin, president of the BNP-affiliated Nationalist Lawyers Forum, said: “The Court has expressly stated that the verdict is prospective. We argued before the Court that the judgment be declared prospective in disposing of the appeals and reviews, and the Court has accepted this. All arguments submitted by the lawyers have been taken into account.”
Advocate Mohammad Shishir Manir, representing Jamaat-e-Islami, said: “Based on this verdict, the caretaker system has been revived. A caretaker government will be formed within 15 days of the dissolution of parliament. The Court has said the verdict is prospective. Therefore, the upcoming election will be held under the present interim government, and from the 14th parliamentary election onwards, elections will be held under a caretaker government.”
He added: “Jamaat was the first to propose a caretaker government. Now everyone understands its necessity. We sought the caretaker system not for partisan interest, but in the interest of democracy.” He also said the system cannot be used this time.