By Sheikh Arif (Dhaka Bureau)
Bangladesh has once again returned to the caretaker government system during the national election period. On Thursday (November 20), the Appellate Division of the Supreme Court of Bangladesh announced the verdict, reinstating the caretaker government system. The full Appellate Division bench of seven judges, led by Chief Justice Syed Refaat Ahmed, announced the verdict. The court stated that the caretaker government system will be effective starting from the 14th National Parliamentary Election, and the 13th National Parliamentary Election will be held under the current interim government.
The caretaker government system was included in the Constitution of Bangladesh almost three decades ago through the Thirteenth Amendment to ensure free and fair elections. Subsequently, three national elections (1996, 2001, and 2008) were held under this non-partisan caretaker government. Although there was isolated criticism of those elections, no allegations of vote rigging or fraud were raised. The 1991 national parliamentary election was held under an interim government formed and based on a compromise among political parties.
Then, about a decade ago, the highest court of Bangladesh declared the Thirteenth Amendment null and void. As a result, this election-time government system was dropped from the Constitution of Bangladesh through the Fifteenth Amendment. Following this, all three subsequent national elections held in Bangladesh were marred by controversy. These three national elections were held under the Bangladesh Awami League, which was ousted from power by a mass uprising. Political observers in the country believe that the abolition of the caretaker government system created a political crisis in Bangladesh.
The other six members of the Appellate Division bench who announced the verdict to bring back the caretaker government system during the national election period are Justice Md. Ashfaqul Islam, Justice Zubayer Rahman Chowdhury, Justice Md. Rezaul Haque, Justice S. M. Emdadul Hoque, Justice A. K. M. Asaduzzaman, and Justice Farah Mahbub.
After the student-people’s mass uprising in Bangladesh on August 5, 2024, the first application seeking a review of the Appellate Division’s 2011 judgment to reinstate the caretaker government system was filed on August 27, 2024, by five distinguished individuals, including Badiul Alam Majumdar, Secretary of Citizens for Good Governance. The others were Tofail Ahmed, M. Hafizuddin Khan, Jobairul Haque Bhuiyan, and Zahra Rahman.
Following the verdict announcement, Writ Petitioner Badiul Alam Majumdar, Secretary of Citizens for Good Governance, is expressing his reaction in front of the press.
Subsequently, Bangladesh Nationalist Party (BNP) Secretary General Mirza Fakhrul Islam Alamgir filed a review application. Another review application was filed by Jamaat-e-Islami Secretary General Mia Md. Golam Parwar. In addition, Md. Mofazzal Hossain, a resident of Raninagar, Naogaon, filed another application regarding the verdict. An organization named Human Rights Support Society also filed a review application. Furthermore, an organization named Center for Law Governance and Policy joined the case as an intervener (party).
After the hearing of the review applications, the full seven-member bench of the Appellate Division, led by Chief Justice Syed Refaat Ahmed, ordered on August 27 to grant leave (permission to appeal). The order stated that the review applications would be connected for hearing with the appeals arising from the review applications filed by the five distinguished persons and the BNP Secretary General. Following this, the hearing began on October 21 in the seven-member Appellate Bench led by the Chief Justice. After the tenth day of the hearing on November 11, the Appellate Division set November 20 for the verdict.
During the hearing, Chief Justice Dr. Syed Refaat Ahmed said that the Appellate Division does not want to provide a temporary solution by reinstating the caretaker government. The Appellate Division seeks an effective solution regarding the election-time government so that it is not repeatedly disrupted. He said that the goal is to ensure it has a far-reaching impact on establishing democracy in the country.
During the hearing, the Chief Justice also posed the question of when the caretaker government system would become effective if it were reinstated. In response, the Attorney General stated that over the past decade and a half, the people of the country have been exploited in various ways instead of being governed. People have been subjected to disappearances, extrajudicial killings, and political persecution. The systems that were in place to protect against these were destroyed, and people did not get justice. This is why the Bangladesh Awami League fell due to the mass uprising. And it was from the streets that it was determined who would be the Chief Justice and who would be the head of the government. The power of the people cannot be disregarded in any way. Ignoring these leads to revolution. Later, the Appellate Division granted permission to appeal against the verdict that abolished the caretaker government.
The Thirteenth Amendment to the Constitution was adopted by the Bangladesh National Parliament in 1996. Through this, the caretaker government system was included in the Constitution. However, in 1998, three lawyers, including Advocate M. Salim Ullah, filed a writ petition in the High Court challenging its validity. After an initial hearing, the High Court issued a rule. However, on August 4, 2004, after the final hearing, the High Court dismissed the writ and declared the caretaker government system valid.
Consequently, an appeal was filed with the Appellate Division of the Supreme Court in 2005 against that verdict. The court appointed eight amicus curiae (friends of the court) in this case and listened to their opinions. Among them, five directly supported the caretaker government system.
They were Dr. Kamal Hossain, T. H. Khan, former Attorney General Mahmudul Islam, Barrister M. Amir-Ul Islam, and Barrister Rokonuddin Mahmud. The other amicus curiae, Barrister Ajmalul Hossain KC, favored the abolition of the caretaker government system. Barrister Rafique-ul Haq and Dr. M. Zahir supported a fundamental reform of the caretaker government system and presented their proposals to the court. Additionally, the then Attorney General Mahbube Alam favored retaining the caretaker government.
Subsequently, the full bench of seven judges of the Appellate Division announced the verdict on May 10, 2011, abolishing the Thirteenth Amendment to the Constitution based on a majority opinion. In response, the Fifteenth Amendment was passed in the Bangladesh National Parliament on June 30, 2011, and the gazette was published on July 3.
On Thursday (November 20), with the verdict of the Appellate Division of the Supreme Court of Bangladesh reinstating the caretaker government system, Bangladesh has once again returned to the caretaker government system during the national election period.
‘After the caretaker government system was reinstated, the country will move onto the highway of democracy,’ commented Attorney General Md. Asaduzzaman. He said that the elections held after the abolition of the caretaker government system marked the ‘burial of democracy’ in the country. He added that the people of the country will be able to cast their own votes in the future.
About the Writer:
Sheikh Arif. Panel Editor of Pressenza, Dhaka Bureau.