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 Hearing on review petition to restore caretaker government system on February 9

The Appellate Division has fixed February 9 for hearing three separate petitions seeking review of the judgment to abolish the caretaker government. The Appellate Division headed by Justice Md. Ashfaqul Islam fixed this date on Sunday (December 19).

Earlier, on April 6, 2011, after hearing the appeal, the Appellate Division kept the matter pending for verdict (CAV). On May 10 of the same year, the Appellate Division of the Supreme Court declared the Thirteenth Amendment to the Constitution (caretaker government) invalid and annulled it. However, after that verdict, the court opined that the 10th and 11th National Parliament elections can be held under the caretaker government. In this case, the court also said that any decision can be taken in the election of the chief advisor to the caretaker government on the basis of consensus in the parliament. The full bench of the Appellate Division headed by the then Chief Justice ABM Khairul Haque gave the verdict.

The court further said in its verdict, "The petition has been accepted based on the majority opinion of the Appellate Division. Through this, the Constitution (Thirteenth Amendment) Act, 1996 has been declared illegal and unconstitutional since its inception. However, even if it is not legal (legal due to necessity and the security of the people is the supreme law, the security of the state is the supreme law...based on the principles that have been in place for a long time), the cancellation of the 10th and 11th National Parliament elections can be covered under the Thirteenth Amendment. During this period, the Parliament will also have full freedom to cancel the provision to appoint one of the former Chief Justices of Bangladesh or one of the judges of the Appellate Division as the head of the non-partisan caretaker government. At the same time, the court said that the leave to appeal filed in this regard in 2005 has also been dismissed." 

In an immediate reaction after the verdict was announced, Abdul Mannan Khan, one of the petitioners in the case, said, "As a result of this order of the Appellate Division, the foundation of the country's democracy will be stronger and the judiciary will be more free from influence."

The appellant's lawyer MI Farooqui said, "As a result of this verdict in the Appellate Division, we have been able to protect the constitution. This has been very good for the constitution, democracy and the nation. The caretaker government system is another form of military rule. Just as some sections of the constitution were abrogated and made ineffective during the military rule period, the same is done during the caretaker government period."

Eminent lawyer and amicus curiae in the case Dr. M Zahir said, "It is a good verdict. I have been saying for a long time to keep the judges away from the caretaker government process. My words are largely reflected in this verdict. According to this verdict, the 10th and 11th elections will be held under the caretaker government. But the judgment observed that Parliament can bring amendments to avoid involving judges.

Meanwhile, on August 25, 2024, five people including Citizens for Good Governance (SUJON) Editor Badiul Alam Majumdar filed a review petition against the verdict declaring the Thirteenth Amendment to the Constitution to abolish the caretaker government system illegal. The rest are Tofail Ahmed, M Hafiz Uddin Khan, Jobairul Haque Bhuiyan and Zahra Rahman. Advocate Sharif Bhuiyan and Barrister Tanim Hossain Shaon filed a review petition on their behalf. Then, on October 16, Supreme Court lawyer Zainul Abedin filed another review petition on behalf of BNP Secretary General Mirza Fakhrul Islam Alamgir.

On October 20, a chamber judge court headed by Justice Md. Rezaul Haque set a hearing date of October 24 for the two review petitions before the full bench of the Appellate Division. On October 23, Bangladesh Jamaat-e-Islami filed a review petition against the verdict to annul the Thirteenth Amendment to the Constitution, which abolished the caretaker government system. Jamaat Secretary General Mia Golam Parwar filed the review petition in the Appellate Division, said the party's lawyer Mohammad Shishir Monir.

Incidentally, the Thirteenth Amendment to the Constitution, which included the caretaker government system, was adopted by the National Parliament in 1996. Three lawyers, including Advocate M Salim Ullah, filed a writ petition in the High Court challenging the validity of this amendment. On August 4 of that year, the High Court Division dismissed the writ petition and declared the caretaker government system valid. The writ petitioners then appealed against this verdict in 2005. The court appointed eight amicus curiae (friends of the court) in the case and heard their views. Five of them directly expressed their views in favor of the caretaker government system. They are – Dr. Kamal Hossain, TH Khan, former Attorney General Mahmudul Islam, Barrister M Amir-ul Islam and Barrister Rokonuddin Mahmud. The other amicus curiae, Barrister Ajmalul Hossain KC, expressed his opinion in favor of abolishing the caretaker government system. Barrister Rafiq-ul-Haq and Dr. M Zahir presented their proposal to the court, arguing for radical reforms of the caretaker government system. In addition, the then Attorney General Mahbubey Alam argued for maintaining the caretaker government.