15th amendment verdict: What kind of election-time govt will we have in the future?
Despite some interpretations of the recent ruling, the upcoming general elections—announced by Chief Adviser Dr Yunus for late 2025 or the first half of 2026—will not be held under a caretaker government
The High Court's recent decision to overturn key provisions of the 15th Amendment to the Constitution, passed by the Awami League government in 2011, has restored the caretaker government system for overseeing national elections.
Announced on 17 December, this move restores principles of free and fair elections, eroded since the disputed 2014 and subsequent polls, signalling a shift away from over a decade of authoritarian rule.
However, it is also important to understand that this ruling does not immediately bring back the caretaker government, clarified Barrister Nazir Ahmed, a specialist in constitutional law.
He explained that while the Constitution's 15th amendment has been partially scrapped, a hearing on three review petitions pleading for the restoration of the 13th amendment to the Constitution and reinstatement of the poll-time non-party caretaker government system is scheduled for 19 January.
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"Only then can we confirm that there are no further obstacles to the return of the caretaker government system," Barrister Ahmed said.
This raises the question: what will happen with the next general elections? Will they be held under a caretaker government? According to Dr Zahed Ur Rahman, a member of the Electoral Reform Commission, it's unlikely.
He clarified that despite some interpretations of the recent ruling, the upcoming general elections—announced by Chief Adviser Dr Yunus for late 2025 or the first half of 2026—will not be held under a caretaker government.
"Some people may think that if the repeal of the 13th Amendment too is reversed, it will instantly take us back to the caretaker government. But that's not true. A similar debate arose after the cancellation of the 16th Amendment, which can give you some idea," said Dr Zahed.
He explained that when an amendment is cancelled, the previous one doesn't automatically return. According to the General Clauses Act of 1897, it must be re-incorporated into the Constitution.
"So, it's certain that the next elections will be held under the current interim government," Dr Zahed said.
Barrister Nazir Ahmed also made it clear why it is being said that the 15th Amendment has been scrapped only partially. "While there were a total of 54 amendments in the 15th Amendment, the High Court has only annulled the six amendments that are directly related to the Constitution."
Apart from the two provisions abolishing the caretaker government, the other provisions were removing the referendum clause in Article 142, criminalising unconstitutional power grabs as treason, and delegating Supreme Court powers to lower courts, which were all declared unconstitutional and annulled by the High Court.
"These were the provisions that were destroying the basic structure of the Constitution. The remaining provisions have been kept as they are, including issues such as Sheikh Mujibur Rahman as the Father of the Nation or the 7th March Speech. The next elected government can take decisions on them in the parliament," Barrister Ahmed said.
Electoral Reform Commission member Dr Zahed Ur Rahman firmly believes that "after the kind of elections the nation has witnessed in the last three terms following the abolition of the caretaker government, there cannot be any valid reason to abolish it."
He further noted that the High Court has also made some observations regarding the controversial elections that have taken place in the last three terms. It has been said that the people's trust in the vote has been completely destroyed through those elections. The court has considered that in its current judgments.
"As a result, we can hope that, in line with this judgment, we will return to free and fair elections, and the common people's lost faith in elections and democracy will be restored," he said.
That said, Barrister Nazir also issued a note of caution that even after the recent ruling, and the one pending for January, not all problems regarding the Constitution will not be resolved properly.
To begin with, caretaker governments are supposed to hold power for just 90 days. But the current interim government has already been in power for four and a half months, and Dr Yunus indicated on 16 December that they may stay for another one and a half months.
"Such deviations from the Constitution must be addressed with proper resolution to prevent setting dangerous precedents," Barrister Ahmed said.
There were also some controversies regarding the judges. Traditionally, the Chief Justice or other senior judges used to lead the caretaker government.
In 2006, Justice KM Hasan was supposed to lead the caretaker government. However, the Awami League protested against this, arguing that the BNP had deviated from the usual practice of appointing the senior-most judge as the Chief Justice.
Instead, in June 2003, they appointed Hasan and then raised the retirement age for Supreme Court Justices to 67 years from 65, ensuring that KM Hasan would retire just before the caretaker government took over, allowing him to assume leadership as the immediate past Chief Justice.
Subsequently, instead of considering all available options, President Iajuddin Ahmed assumed the role of Chief Adviser, based on advice from the BNP. This decision eventually resulted in the establishment of a new caretaker government, led by Fakhruddin Ahmed, a former governor of Bangladesh Bank.
Therefore, it is crucial to have dialogue between all key stakeholders, including political parties, to reach fundamental decisions and provide legitimacy to the extended time taken by the interim government.
Barrister Ahmed referenced the 1991 elections under Shahabuddin Ahmed, which were also conducted outside the Constitution. Later, the 11th and 12th Amendments were passed based on a framework agreed upon by the three-party alliance. He suggested that after the upcoming elections, a similar alliance will be necessary to implement corrective measures to the existing Constitution.
"I think the interim government is heading in the right direction in this regard, as Dr Yunus in his 16 December speech spoke about forming the National Consensus Building Commission which he will head," he said.
The new commission will include the chairmen of the already formed six commissions, and its task will be to identify all the issues on which consensus can be established by exchanging views with all stakeholders, including political parties, and to provide recommendations for implementation of these issues.
Advocate Kollol Kibria, a human rights activist, shared similar views, emphasising the need for constitutional reforms to be conducted through a participatory process that prioritises the people's voices.
"The unresolved issues, such as the caretaker government, environmental protections and state principles, must be addressed through open dialogue and consultation. Parliament should not merely legislate; it should create a platform for debate that truly reflects the will of the people," Kibria said.
Meanwhile, there is also a school of thought which is against the permanent establishment of the caretaker government system. Sarwar Tushar, joint-convener of the National Citizen Committee, said they don't see the need for a caretaker government.
"In our proposal to the Constitution Reform Commission, we conveyed that in a democratic state, a caretaker government is unnecessary. While it may seem like a solution at first, in the long run, it only creates more problems," Tushar explained.
"We envision a democratic state where the Election Commission is capable of organising fair elections, even under a party-led government. That said, we acknowledged that for strategic reasons, a caretaker government can be in place for the next two elections. But we are against making it permanent."
Electoral Reform Commission member Dr Zahed, however, firmly believes that "after the kind of elections the nation has witnessed in the last three terms following the abolition of the caretaker government, there cannot be any valid reason to abolish it."
