Caretaker govt revives, with prospective effect

Election-time neutral caretaker government revives, with prospective effect, in a reversal of a previous Supreme Court verdict contentiously rescinding the system under the then divisive political circumstances.

The resurrected system of neutral government of 90-day tenure stays in animated suspension for now in the constitution as the apex-court ruling gives its effect from the 14th general election in Bangladesh, evidently as a nonpolitical government installed through last year's mass uprising is now in office and mandated by the stakeholders of the regime change to hold the forthcoming 13th national elections, set for next February.

"This court is satisfied that the judgment under review is tainted by several cited errors apparent on the face of the record," says the apex court, now constituted of a different set of judges, in its verdict delivered Thursday that overturns their predecessors' ruling blamed for breeding political crises in the country.

The Appellate Division of the Bangladesh Supreme Court entirely set aside its earlier verdict delivered in 2011 by a bench headed by former Chief Justice ABM Khairul Haque, scrapping the non-party Caretaker Government system.

A seven-member bench of the Appellate Division, headed by Chief Justice Dr Syed Refaat Ahmed, pronounced the verdict after having held hearings on two appeal petitions and three review petitions seeking restoration and revival of the system.

In its verdict-instantly hailed by active political parties and civil-society campaigners as a landmark one-the apex court says, "By a unanimous decision, the civil appeals are allowed and civil review petitions are disposed of accordingly.

"This court is satisfied that the judgement under review is tainted by several cited errors apparent on the face of the record. It follows that the judgement under review, is, hereby, set aside in its entirety."

Consequently, says the verdict, provisions of Chapter IIA of Part IV of the Constitution relating to the Non-Party Caretaker Government (NPCG) as inserted by Section 3 of the Constitution (Thirteenth Amendment) Act 1996 (Act no 1 of 1996) "are found to have hereby been activated and revived upon this court's ruling as above".

However, the system of nonparty caretaker government will be implemented before for holding the 14th parliamentary polls as the upcoming (13th) election will be held under the current interim government, according to the SC judgment.

The apex court says, "Such revival, though ensures automatic restoration of Chapter IIA containing NPCG provisions, its operation, however, is subject to the enforcement of the provisions of the revived Articles 58B(1) and 58C(2) of the Constitution.

"It follows, therefore, that the now restored and revived Chapter IIA NPCG provisions can operate only prospectively."

In a reaction, BNP Standing Committee member Amir Khasru Mahmud Chowdhury has expressed the hope that caretaker government system would make national elections "more stable and acceptable" in future in Bangladesh.

He made the remarks on Thursday around 11:30 am while speaking to reporters after inaugurating a free medical camp organised by Kamal MedAid at the Bat Tala on the Dhaka University campus.

Amir Khasru said, "In the absence of a caretaker government, the people of Bangladesh have had to make immense sacrifices. Lives were lost, elections were taken away, and citizens were deprived of their voting rights. As a result, a culture of misrule, repression, and intimidation took root. We believe that the caretaker government system can restore stability and credibility to the upcoming elections."

Bangladesh Jamaat-e-Islami also welcomed the Supreme Court's verdict restoring the election-time non-partisan caretaker government system in the country.

"There is no alternative to the caretaker government system for enabling a free, fair and neutral national election," Assistant Secretary General of Jamaat Ehsanul Mahbub Zubair told the media at a press conference at the party's headquarters in the capital's Moghbazar area.

"It was because of cancelling the caretaker system that Sheikh Hasina's government became fascist and authoritarian. The elections of 2014, 2018, and 2024 were the darkest chapters in the country's history," he said.

"Bangladesh had no precedent of credible elections under partisan governments," he added.

"A neutral interim administration during elections is indispensable. Professor Ghulam Azam was the principal architect of this system," he mentioned.

"This is another victory for the people. We extend our heartfelt congratulations and greetings to the nation for this achievement in restoring voting rights through a legal battle," he added.

Akhtar Hossain, member secretary of the National Citizen Party (NCP), welcomed the hailed the verdict, describing it as a groundbreaking event in Bangladesh's judicial history.

He made these remarks while reacting to the verdict on the Thirteenth Amendment case at the NCP office in the capital on Thursday.

Akhtar Hossain said, "We welcome the apex court's verdict that declared illegal the previous verdict, during the Awami League government's tenure, which had annulled the Thirteenth Amendment to the Constitution, and which reinstated the system of a non-partisan caretaker government for the duration of the election. Through this, the nation has been freed from stigma."

He said that the caretaker government system was the most acceptable form of government so far.

The long-drawn episode of the political innovation runs like this that non-party caretaker government system had been introduced through bringing the 13th Amendment to the constitution in 1996-in the wake of a political standoff over disputes in election under ruling political government.

The sole purpose of the 13th Amendment was to safeguard democracy by ensuring free and fair elections under a nonparty caretaker government, which would remain in charge for only 90 days.

Later, Supreme Court lawyer M Salimullah (now deceased) and others filed a writ petition with the High Court in 1998 challenging the legality of this amendment.

Following the writ petition, the High Court declared the 13th Amendment of the Constitution valid and constitutional on August 4, 2004.

Later, an appeal was filed against the verdict and the Appellate Division headed by then Chief Justice Khairul Haque delivered the verdict on May 10, 2011, scrapping the caretaker system on a majority view.

After the verdict was pronounced, the 15th Amendment Act was passed by the Jatiya Sangsad on June 30, 2011 addressing several issues, including the abolition of the caretaker-government system.

No review petition was filed during the Sheikh Hasina regime to challenge the verdict. However, after the fall of Sheikh Hasina government on August 5, 2024 amid a mass uprising, five review petitions were filed.

Bangladesh Nationalist Party (BNP), represented by its Secretary-General Mirza Fakhrul Islam Alamgir, Bangladesh Jamaat-e-Islami, represented by its Secretary-General Miah Golam Porwar, and five prominent citizens, including Dr Badiul Alam Majumdar, secretary of the rights organisation Shushashoner Jonno Nagorik, and Md Mofazzal Hossain, a freedom fighter from Naogaon, filed four separate petitions after the regime change.

A human-rights organisation filed another review petition and an organisation joined in the legal fight as an intervener.

After holding hearings on the review petitions, the apex court on August 27 this year granted leave for those petitions. Later, two appeal petitions were filed before the Appellate Division.

The apex court later started its hearing on the appeals on October 21 this year and continued until November 11.

Meanwhile, a High Court bench on December 17 last year scrapped the major provisions of the 15th amendment of the constitution in response to petitions challenging "legality of the constitutionality" of the amendment that scrapped the nonparty caretaker-government system.

The court observed that this amendment "destroyed the basic structure of the Constitution" and also contradictory to the short verdict of the Appellate Division regarding the 13th amendment.

Describing the verdict as historic, Attorney-General Md Asaduzzaman told reporters in the coming days, the people of Bangladesh would be able to cast their vote independently and "voting will take place only during daytime. We believe this verdict is the new beginning of a democratic path."

The country's chief legal officer adds, "The verdict that scrapped the Caretaker Government system has itself been nullified today as it was flawed. Former Chief Justice ABM Khairul Haque and his associates involved in writing the previous judgment committed an offence under Section 219 of the Penal Code."

BNP lawyer, Zainul Abedin, says, "The day is like Eid-day for the people of Bangladesh. The people of the country can now freely vote for the candidate of their choice. The caretaker-government system has returned today because fascist Sheikh Hasina has fled the country."

Jamaat lawyer Mohammad Shishir Manir says, "This ruling will not take effect immediately. It will apply in the future, meaning the caretaker-government system will not be implemented for the 13th National Parliamentary Election but will be effective from the 14th Parliamentary Election onward."

Badiul Alam Majumdar, one of the appellants, has welcomed the verdict reinstating the caretaker-government system. "The ruling by the Appellate Division will help pave the way for free, fair, and impartial elections in the country."

Lawyers Sharif Bhuiyan and Karshma Jahan appeared in the court proceedings on behalf of the five citizens, Zainul Abedin and Ruhul Quddus Kazal appeared for BNP and Mohammad Shishir Manir appeared for Jamaat.

Attorney-General Asaduzzaman and Additional Attorney-General Aneeq R Haque represented the state, and lawyer Ehsan Abdullah Siddiq appeared on behalf of the intervener organisation.

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