Appeal filed seeking full annulment of 15th constitutional amendment

A petition has been filed with the Appellate Division challenging the High Court verdict that declared certain provisions of the 15th amendment to the constitution, including the abolition of the caretaker government system, unconstitutional.

The petition seeks complete annulment of the entire amendment.

Senior Advocate of the Supreme Court Sharif Bhuiyan lodged the appeal today (3 November) on behalf of Badiul Alam Majumder, secretary of the civil society platform Shushashoner Jonno Nagorik (Shujan).

Speaking to reporters, Sharif Bhuiyan said, "In the High Court, we sought the cancellation of the entire 15th Amendment. However, the court only struck down a few provisions, which has resulted in several inconsistencies. 

"The amendment's key issue was the caretaker government system. Although provisions abolishing it were invalidated, several other articles that conflict with the caretaker system remain.

"To fully reinstate it, those inconsistencies must be addressed. That is why we are appealing for a complete annulment of the amendment," he said.

On 17 December last year, the High Court declared parts of the 15th amendment, including provisions abolishing the caretaker government system, unconstitutional. The court also restored the provision for a national referendum. However, it did not strike down the entire amendment.

In its observation, the court said democracy is an integral part of the constitution's basic structure and can flourish only through free, fair and impartial elections.
It noted that the last three parliamentary polls under partisan governments failed to reflect the people's will, eroding public confidence in credible elections – a situation that ultimately led to the July uprising.
"The caretaker government system had been incorporated into the constitution in line with public aspiration and had become part of its basic structure," the High Court further said.
The High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict. The court declared Articles 20 and 21 of the 15th Amendment, which abolished the caretaker government system, to be unconstitutional and void. In its ruling, the court observed that these provisions had destroyed the fundamental structure of the constitution, particularly democracy.
The court also struck down Articles 7A, 7B, and 44(2), which were introduced by the 15th Amendment, on the grounds that they were inconsistent with the constitution. The 15th Amendment had brought changes, insertions, and replacements to a total of 54 provisions of the constitution.
In its ruling, the court said that the 15th Amendment would not be entirely invalidated. The remaining provisions may be amended, refined, or altered by the next parliament in accordance with public opinion and existing laws. These include provisions recognising the Father of the Nation and the 26 March speech.
Regarding the national referendum, the High Court noted that the provision had been abolished, though it was part of Article 142 of the constitution. Section 47 of the 15th Amendment, which removed the referendum clause, was declared void as it contradicted the constitution's basic structure. As a result, Article 142 of the 12th Amendment has been reinstated.
Articles 7A, 7B and 44(2) were also declared void. Article 7A had made cancellation or suspension of the constitution a punishable offence, while Article 7B prohibited amendment of its fundamental principles. Article 44(2) concerned the enforcement of fundamental rights, allowing parliament to empower subordinate courts to exercise similar jurisdiction under Article 102. This clause has now been annulled by the court.