Hasina govt's scrapping of polls-time caretaker system illegal: HC

The High Court has declared illegal the relevant article of the 15th Amendment to the constitution that abolished the caretaker government system and mandated elections under a partisan government.

Additionally, several other provisions, including the removal of the referendum system under Article 142, which was replaced in the amendment, have also been declared illegal.

Lawyers have stated that this verdict, pronounced today, removes a major obstacle to the revival of the caretaker government system and simultaneously restores the provision for referendums.

In 2011, the then Awami League government, ignoring the protests of opposition parties including the BNP, abolished the caretaker government system through the 15th Amendment.

After the abolition of the caretaker government system, three national elections were held under Sheikh Hasina's premiership in 2014, 2018, and 2024 and these elections were marred by opposition boycotts and widespread allegations of vote rigging.

Today's High Court verdict came around four months after a student-led mass uprising that led to the ousting of the Awami League government and Hasina's flight to India.

After the final hearing of separate writ petitions, a High Court bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury delivered today's verdict.

Through the 15th Amendment, 54 articles of the constitution were changed, added, modified, or replaced.

In the verdict, the court stated that the entire 15th Amendment is not being annulled, although two separate writ petitions had sought its complete repeal.

The High Court's verdict also invalidated Articles 7A and 7B, which prohibited the suspension, annulment, or amendment of the constitution's basic principles.

Additionally, Article 44(2), which curtailed the High Court's authority to enforce fundamental rights, was declared void.

The court has left the remaining provisions of the amendment to the discretion of parliament, including the provision to retain Islam as the state religion while ensuring equal status for other religions.

Additionally, the inclusion of the 7 March speech, the declaration of independence on 26 March, and the Independence Declaration in the constitution, as well as the elevation of reserved women's seats to 50 and the recognition of Sheikh Mujibur Rahman as the Father of the Nation, were also left for parliament to decide.

Badiul Alam Majumder, secretary of Citizens for Good Governance (SHUJAN), told the media that the court has left certain matters for the parliament to decide, which he views as a very wise decision.

He described the ruling as historic, emphasising that the court recognised the caretaker government as part of the constitution's core framework.

He expressed hope that the Appellate Division would uphold the High Court's ruling. If it is upheld, no one will be able to remove the caretaker government system.

Following the verdict, the petitioner's lawyer Sharif Bhuiyan, told reporters on the Supreme Court premises that they had sought the complete annulment of the 15th Amendment.

While the court struck down several provisions, it did not annul others. The court stated that it was not granting validity to the remaining provisions and left them for future parliaments to decide. The future parliament may retain or abolish them according to the needs of the nation, he said.

Article 7A stated that the annulment, suspension, etc, of the constitution would be considered a crime, while Article 7B declared that the constitution's basic principles could not be amended.

Additionally, Article 44(2) stated that parliament could, through law, empower any other court, within its territorial limits, to exercise powers under Article 102 of the constitution, without diminishing the authority of the High Court Division. This provision was annulled in the verdict.

15th Amendment destroyed constitution's core framework

In its observation, the High Court stated that the ruling delivered by the Appellate Division, led by Chief Justice ABM Khairul Haque in 2011, which abolished the non-partisan caretaker government, had recommended maintaining the system for two terms in its brief verdict.

However, this was not included in the full verdict, and later, the system was abolished through the 15th Amendment in the parliament.

The court remarked that through this amendment, the core framework of the constitution was destroyed. The caretaker government system was an integral part of the constitution's framework.

Since elections and democracy are fundamental components of the constitution, and the caretaker government system strengthens democracy and elections, it too is part of the constitution's core framework, the court observes.

The court further stated that Section 47 of the 15th Amendment, which abolished the provision for referendums under Article 142 of the constitution, was inconsistent with the fundamental structure of the constitution. As a result, the 12th Amendment's Article 142 was reinstated.

The High Court, regarding the student-led mass uprising in July-August, stated that the people are the source of all power, and no one can stop the expression of this power.

The court further stated that it is impossible to predict what a future parliament will or will not do. Another observation by the court was that constitutional amendments must be made considering time and circumstances.

On 18 August, five prominent individuals, including Badiul Alam Majumder, filed a writ challenging the 15th Amendment Act. After preliminary hearings, the High Court issued a rule on 19 August, asking why the 15th Amendment Act should not be declared inconsistent with the constitution.

Several parties, including the BNP, Gano Forum, Jamaat-e-Islami, civil society organisations, and individuals, joined as intervenors to assist the court. During the hearings, lawyers for the petitioners, the BNP, the state, the Jamaat, Gano Forum, and other individuals and organisations presented their arguments.

Meanwhile, in October, freedom fighter Md Mofazzal Hossain from Narayanpara in Raninagar, Naogaon, filed a separate writ challenging the validity of 16 provisions of the 15th Amendment Act.

After preliminary hearings, the same bench of the High Court issued a rule on 29 October, asking why these provisions should not be declared inconsistent with the constitution.

The hearing on the rule concluded on 4 December, and the court set 17 December for its ruling. In line with the proceedings, the court delivered its judgment.

'Proud to deliver this verdict as a female judge'

After delivering the judgment, Justice Farah Mahbub expressed her gratitude to the lawyers involved in the 15th Amendment case, saying, "You brought such a significant and important case before a bench led by a female judge. You placed your trust in a female judge, and for that, I am grateful."

"This is a great achievement for me. I am proud to deliver this verdict. I believe this is a moment of pride for women," she said.

Justice Farah Mahbub further stated, "In delivering this verdict, we focused on the demands and rights of the people."

Will the HC verdict be automatically incorporated into the constitution?

According to constitutional expert and senior Supreme Court lawyer Ahsanul Karim, the caretaker government system and the provision for referendums, which the High Court has revived, will automatically be incorporated into the constitution.

He told TBS, "Since the High Court has declared the provision for abolishing the caretaker government void and ruled for its revival, the caretaker provision will automatically be added to the constitution.

"Additionally, the provision for abolishing referendums has also been voided, and the provisions the court has specifically ruled on will also be automatically incorporated into the constitution," he said.

He added, "Previously, after the Supreme Judicial Council case ruling by the Appellate Division, the judicial council was automatically revived. Similarly, this will happen in this case."

Lawyer Sharif Bhuiyan told TBS that the review of the Appellate Division's ruling on the 13th Amendment, which abolished the caretaker government system, is still pending. Therefore, it won't be possible to add it to the constitution at this time.

He said it cannot be said that the caretaker government system has been restored immediately, as it was abolished in two ways: through the court ruling and the constitutional amendment by the parliament.

He added that Badiul Alam Majumder and four others have filed review petitions in the Appellate Division on this matter. The hearing will take place in January. If the ruling is in favour of the petitioners, the caretaker government system will be reinstated.

He further noted, "The provisions the High Court specifically ruled on, including those regarding referendums, will be revived in the constitution according to the ruling."