Supreme Court reinstates caretaker government, but not for February JS polls
The full bench of the Appellate Division, led by Chief Justice Dr Syed Refaat Ahmed, announced the judgment, which followed intense political and legal scrutiny of the 2011 decision that had abolished the system
The Appellate Division of the Supreme Court today (20 November) issued a ruling that prospectively restores the provision for the Election-time Non-Partisan Caretaker Government (NPCG) system in the Constitution.
However, the verdict specified a phased implementation, stating the system will not apply to the imminent 13th National Elections.
The full bench of the Appellate Division, led by Chief Justice Dr Syed Refaat Ahmed, announced the judgment, which came after intense political and legal scrutiny of the 2011 decision that had abolished the system.
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The six other judges on the bench who delivered the landmark verdict are - Justice Md Ashfaqul Islam, Justice Zubayer Rahman Chowdhury, Justice Md Rezaul Haque, Justice SM Emdadul Hoque, Justice AKM Asaduzzaman, and Justice Farah Mahbub.
The upcoming 13th Jatiya Sangsad Election will be held under the current interim government... The caretaker government system will become effective from the 14th Jatiya Sangsad Election, meaning a caretaker government will be formed within 15 days of the dissolution of [then] parliament
The court announced that the NPCG system, originally inserted via the 13th constitutional amendment of 1996, has been "activated and revived". The court declared its satisfaction that the previous judgment was "tainted by several cited errors apparent on the face of the record", thereby setting it aside in its entirety.
The ruling dictates the following timeline for the two upcoming elections. The 13th parliamentary election, due in February next year, will be held under the incumbent interim government, while the 14th national polls will be serviced by the restored caretaker government system, which will be fully implemented and operational starting from this election.
This phased implementation is necessary because the constitutional mechanism needed to form the NPCG - such as the requirement to form it within 15 days of the dissolution of Parliament - can no longer be triggered, as the parliament was dissolved more than a year ago.
Crucially, the apex court specified a phased application for the restored system, stating it will only operate prospectively. This aligns with the position advocated by lawyers for the petitioners, who argued that constitutional limitations prevent its immediate application.
Sharif Bhuiyan, a lawyer representing one of the petitioners, had earlier told The Business Standard that reinstating the system now would not allow it to be applied to the imminent election.
"Under the Constitution, the caretaker government must be formed within 15 days of the dissolution of Parliament. Since Parliament was dissolved more than a year ago, the required process cannot be initiated," he said.
'People's voting rights established'
Leading lawyers representing the political parties involved in the case expressed strong satisfaction with the Supreme Court's verdict, hailing the restoration of the system as a victory for the people's voting rights.
Attorney General Md Asaduzzaman said, "Through today's verdict, the Appellate Division has given a 'prospective effect' in implementing the ruling, meaning the caretaker government system will come into effect after the next parliament, formed in the upcoming election, completes its term. As a result of this judgment, the caretaker government system has been reinstated. The system introduced through the 13th Amendment to the Constitution in 1996 has now been declared constitutional, and not in conflict with the Constitution."
"The caretaker government system has been declared supportive of Bangladesh's democracy, and this may be elaborated in the full judgment of the court. From today, the people of Bangladesh will be able to cast their own votes in the future; there will be no voting at night before election day, and no dead people will be able to come to vote. We believe Bangladesh has now begun its journey on a truly democratic highway," he added.
The lawyers of several political entities also confirmed that the system will only be implemented prospectively, beginning with the 14th General Election. Advocate Mohammad Shishir Manir, lawyer for Jamaat-e-Islami, confirmed that the caretaker government system has been "automatically reinstated" into the Constitution following the ruling.
"The upcoming 13th Jatiya Sangsad Election will be held under the current interim government," Manir stated. "The caretaker government system will become effective from the 14th Jatiya Sangsad Election, meaning a caretaker government will be formed within 15 days of the dissolution of [then] parliament."
Barrister Ruhul Kuddus Kazal, a lawyer for the BNP, echoed this sentiment, calling the judgment the "latest verdict of the Supreme Court" on the matter.
"The 13th amendment brought this system to establish the people's voting rights, but the Appellate Division snatched those rights away in 2011 by cancelling it," Kajal said. "As a result of today's verdict, this system has been automatically revived in the Constitution, and the people's voting rights have been re-established."
He acknowledged the court's stipulation that the ruling's effectiveness is future-oriented, meaning it will not apply to the upcoming 13th election but to the subsequent polls.
The BNP lawyer highlighted the court's strong criticism of the 2011 ruling that had previously abolished the NPCG system.
"The Appellate Division said in today's verdict that the judgment passed by the then chief justice ABM Khairul Haque in 2011, cancelling the caretaker government system, was riddled with flaws," Kajal stated. "Consequently, the court cancelled Khairul Haque's entire judgment."
Barrister Zainul Abedin, lawyer for BNP Secretary General Mirza Fakhrul Islam Alamgir, provided a succinct reaction, "This verdict reinstates the caretaker government system. The people can now vote without hesitation."
How the caretaker debate reached the court again
The caretaker government system was introduced in 1996 through the 13th Amendment during the BNP government, following opposition movements led by the Awami League.
In 1998, three lawyers, including M Salimullah, challenged the amendment in the High Court. The petition was dismissed in 2004, and the petitioners again appealed in 2005.
After two years of caretaker rule during the 2006–2008 political crisis, questions were raised about the system's weaknesses.
When the Awami League returned to power, the Appellate Division began hearing the appeal on 1 March 2010.
Eight senior lawyers appeared as amici curiae, arguing in favour of retaining the system, while then Attorney General Mahbubey Alam also supported it.
On 10 May 2011, the Appellate Division, by majority, declared the 13th Amendment void.
Before the full verdict was released, Parliament passed the 15th Amendment on 30 June 2011, abolishing the caretaker system. It received presidential assent on 3 July 2011. Former chief justice ABM Khairul Haque subsequently declared the caretaker system unconstitutional.
Following the political shift on 5 August last year, several review petitions were filed seeking reconsideration of the 2011 verdict.
On 27 August 2024, one was submitted by prominent citizens Badiul Alam Majumder, Tofail Ahmed, M Hafizuddin Khan, Jobairul Haque Bhuiyan and Zahra Rahman.
On 16 October 2024, BNP Secretary General Mirza Fakhrul Islam Alamgir filed another.
Jamaat-e-Islami Secretary General Mia Golam Porwar filed a third on 23 October the same year.
A freedom fighter from Naogaon, Mofazzal Hossain, submitted a separate application.
After hearing these pleas together, the Appellate Division decided to rehear the original appeal against the High Court verdict.
Lawyers Sharif Bhuiyan, Barrister Ruhul Kuddus Kazal, Barrister Zainul Abedin, and Advocate Mohammad Shishir Manir represented the petitioners.
The final hearing concluded on 11 November, and the Appellate Bench led by Chief Justice Syed Refaat Ahmed set 20 November for the verdict.
