Caretaker system a temporary safeguard for democracy, observes SC in full verdict

The Supreme Court has published its full verdict reinstating the non-party caretaker government system to oversee national elections, citing it as a temporary safeguard for democracy. 

The 74-page judgment was uploaded to the apex court's website yesterday.

Earlier, on 20 November last year, a seven-member bench of the Appellate Division led by then Chief Justice Syed Refaat Ahmed unanimously declared illegal the earlier ruling that had voided the system.

The decision came following four separate review petitions filed after the country's political changeover on 5 August 2024.

In its latest verdict, the court reinstated the system introduced through the constitution's 13th amendment and said it should be implemented gradually ahead of national elections.

The court also observed that the 13th amendment had been enacted in good faith within the constitutional mandate of Article 7. "If applied properly, the doctrine of necessity could legitimise the caretaker system as a temporary safeguard for democracy."

According to the judgment, the system did not destroy the constitution's basic structure but rather helped preserve it. The court said the arrangement would come into effect starting from the country's 14th parliamentary election.

However, lawyers involved in the case said the current parliament retains the authority to amend or remove the provision if it chooses.

The verdict also outlines how the caretaker government will be formed.

Under the arrangement, the most recently retired chief justice will be appointed as the chief adviser to the caretaker government. If that person declines the role, the position will be offered to the previous retired chief justice. If necessary, retired judges of the Appellate Division may be appointed in sequence.

If no suitable former judge is available, the president may appoint a chief adviser in consultation with political parties.

On the advice of the chief adviser, the president will appoint 10 other advisers to form the caretaker government. All advisers must be non-partisan and neutral. This interim administration will remain in charge until a newly elected parliament is formed and assumes office.

The caretaker government system was introduced in 1996 through the 13th constitutional amendment amid political pressure from opposition parties including the Awami League and Jamaat-e-Islami, forcing the then BNP government to adopt the mechanism.

However, the caretaker system was declared unconstitutional in 2011 by an Appellate Division bench led by former Chief Justice ABM Khairul Haque.

Although the bench's short order at the time had observed that two more general elections could be held under the caretaker system, that observation was not included in the detailed judgment later published.

Following the ruling, the then government led by the Awami League introduced the constitution's 15th amendment in parliament, abolishing the caretaker provision altogether.

Addressing the discrepancy between the short order and the detailed judgment yesterday, the Appellate Division said in its newly released verdict that the inconsistency reflected an error on the record.

"The court is of the view that the inconsistency between the short order and the full judgment was an error on record," the verdict stated.