Mir Afroz Zaman 

The High Court Division of Bangladesh Supreme Court has published a full copy of the verdict declaring the abolition of the much-discussed caretaker government system in Bangladesh and several items brought in the 15th Amendment to the Constitution illegal.

The full 139-page verdict was published on Tuesday after the signing of the High Court bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury.

Earlier, on December 17, 2024, the High Court declared the abolition of the much-discussed caretaker government system and several items brought in the 15th Amendment to the Constitution illegal. At the same time, the court restored the provision of referendum in the constitution.

In its observation of the verdict, the court said, democracy is part of the basic structure of our constitution. This democracy develops through free, fair and impartial and influence-free elections. But the will of the people has not been reflected in the last three parliamentary elections under the party government. The confidence of the people in fair elections under the party government did not arise. As a result of which, the July Uprising took place. In the verdict, the High Court said that the caretaker government system was included in the constitution as per the will of the people and it has become part of the basic structure of the constitution.

The High Court bench of Justice Farah Mahbub and Justice Debashish Roy Chowdhury announced the verdict.

The state was represented in the court by Attorney General Md. Asaduzzaman, Deputy Attorney General Md. Asad Uddin, and senior lawyer Dr. Sharif Bhuiyan for the writ petitioner Sujan Badiul Alam. Senior lawyer Zainul Abedin, Barrister Kaiser Kamal, Barrister Badruddoza Badal, Barrister Ruhul Quddus Kajal, Advocate Farzana Sharmin Putul were for the BNP. Advocate Mohammad Shishir Monir, Barrister Ehsan Siddiqui were for the Jamaat. Advocate Ishrat Hasan heard the case on behalf of Insaniat Biplob. Barrister Junaid Ahmed Chowdhury, Barrister Nishat Mahmud and Barrister Hamidul Misbah were the intervenors for the four petitioners.

The High Court declared Articles 20 and 21 of the Fifteenth Amendment Act on the abolition of the caretaker government system as unconstitutional and void. In the judgment, the court said that the two articles have destroyed the basic structure of the constitution, which is democracy. The court declared Articles 7A, 7B, 44 (2) added to the constitution through the Fifteenth Amendment as unconstitutional and void. The Fifteenth Amendment brought additions, modifications and replacements in 54 cases.

In the judgment, the court said that the Fifteenth Amendment Act is not being repealed in its entirety. The court has left the responsibility of deciding on the remaining provisions to the next National Parliament. In the judgment, the court also said that the Parliament can amend, revise and change the provisions based on the opinion of the people according to the law. These include the issues of recognition of the Father of the Nation, the issues of the March 26 speech.

Regarding the referendum, the High Court said in the judgment that the provision of referendum was abolished, which was part of Article 142 of the Constitution. It was added to the twelfth amendment in 1991. Section 47 of the Fifteenth Amendment Act regarding the abolition of the provision of referendum in Article 142 of the Constitution was declared invalid as it was inconsistent with the basic structure of the Constitution. As a result, Article 142 of the twelfth amendment was reinstated.

The High Court judgment has abolished Articles 7A, 7B and 44 (2). Article 7A mentioned the crime of abrogating, suspending the Constitution, etc. and 7B mentioned the crime of amending the fundamental provisions of the Constitution. Meanwhile, Article 44 mentions the enforcement of fundamental rights. Article 44(2) states that, without prejudice to the powers of the High Court Division under Article 102 of this Constitution, Parliament may by law empower any other court to exercise all or any of those powers within the local limits of its jurisdiction. This article has been declared null and void in the judgment.