Caretaker govt, referendums restored: SC

The Appellate Division of the Supreme Court yesterday upheld a High Court verdict that scrapped parts of the 15th amendment to the constitution, which had abolished the caretaker government system, and restored the provision for holding referendums on certain constitutional amendments.

A four-member bench of the Appellate Division, headed by Chief Justice Zubayer Rahman Chowdhury, dismissed the appeals challenging the High Court judgment and seeking the cancellation of the entire 15th amendment, which had also introduced several significant changes to the constitution, Attorney General Md Ruhul Quddus Kazal told reporters following the verdict.

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“The apex court verdict means that the High Court’s ruling has been upheld. The High Court in its verdict made observations on four issues. Among those, the most significant were the restoration of the provision of the non-party caretaker government system to the constitution, the reinstatement of the referendum process, and the annulment of articles 7A and 7B of the constitution. Those findings have now been upheld. Ultimately, the High Court’s judgment stands,” he said.

Article 7(A) of the constitution is regarding the use of force and other unconstitutional means to “abrogate, repeal or suspend” the constitution 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”.

Furthermore, with the stay on the decision striking down article 44(2), which had empowered lower courts to hear writ petitions, jurisdiction now rests solely with the High Court Division.

Advocate Mohammad Shishir Manir, a member of Jamaat-e-Islami’s central executive council, told reporters that the Appellate Division had upheld the High Court Division’s judgement, meaning that the four provisions declared unconstitutional by the High Court in relation to the 15th amendment remain unconstitutional.

“Apart from these four issues, all remaining matters are now open for parliamentary deliberation,” the lawyer added.

The details of the apex court’s verdict will be known after the full text of the judgment is released. Journalists were not allowed to enter the courtroom during the delivery of the judgment.

The parliament passed the 15th amendment on June 30, 2011, scrapping the 13th amendment, which had introduced the caretaker government system in 1996.

The 15th amendment retained Islam’s status as the state religion; added “Bismillahir Rahmanir Rahim” with its translation -- “In the name of Allah, the Beneficent, the Merciful / In the name of the Creator, the Merciful” -- to the constitution; introduced provisions for holding parliamentary polls within 90 days before the end of parliament’s tenure; gave more powers to the War Crimes Tribunal; and made it mandatory to display the portrait of Bangabandhu Sheikh Mujibur Rahman at all government offices. Bangabandhu’s historic March 7, 1971, speech was also placed in the fifth schedule through the amendment.

On December 17, 2024, the High Court scrapped part of the 15th amendment that had abolished the caretaker government system and restored provisions for holding referendums on constitutional amendments and left other relevant issues to the parliament.

Four citizens -- Badiul Alam Majumdar, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan, and Zahrah Rahman -- filed an appeal with the Appellate Division on November 3 last year, challenging the High Court verdict and seeking cancellation of the entire 15th amendment.

Jamaat-e-Islami, freedom fighter Md Mofazzal Hossain, and rights organisation Human Rights Support Society (HRSS) also filed separate appeals against the High Court verdict.

Attorney General Md Ruhul Quddus Kazal represented the state, while Sharif Bhuiyan, assisted by Barrister Reduanul Karim, appeared for Badiul and three others. Advocate Mohammad Shishir Manir argued for Jamaat-e-Islami, Barrister Imran Siddiq for HRSS, Barrister ASM Shahriar Kabir for Mofazzal, and Barrister Sara Hossain, Barrister Hamidul Misbah, Barrister Ehsan A Siddiq and Barrister Muhammed Belayet Hossain argued as interveners during the three-day hearing on the appeals.

HISTORY

The idea of a non-party interim authority first gained momentum during the anti-autocracy movement against HM Ershad’s regime.

A neutral interim government was formed in 1991, and it oversaw the polls that year.

In 1996, the then BNP government formally embedded the system in the constitution, amid prolonged street agitation by the then opposition Awami League and its allies.

The arrangement gave a non-partisan administration 90 days to oversee general elections, with the immediate past chief justice the first choice as its chief adviser.

The Awami League government abolished the system in 2011 through the 15th amendment, brushing aside objections by the opposition.

On November 19, last year, the Appellate Division revived the caretaker government system by scrapping its 2011 verdict that cancelled the 13th amendment.