In a landmark verdict, the High Court has ordered the reinstatement of the caretaker government system and the provision of holding referendums in case of bringing any amendment to the constitution, partially striking down the 15th Amendment to the Constitution.

The HC bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict on Tuesday on two writ petitions filed challenging the validity of the 15th Amendment to the Constitution. A 23-day extensive hearing on the petitions was held in the High Court before the delivery of the judgement.

The court in its verdict scrapped some other parts of the ‘Constitution (Fifteenth Amendment) Act, 2011’, which scrapped the 13th amendment

that had introduced the non-party caretaker government system in 1996 and brought significant changes to the constitution.

“The abolition of the non-party caretaker government system is void and unconstitutional as the abolition has destroyed democracy, free and fair elections and independence of the judiciary,” the High Court said in its observation.

After the verdict, Advocate Mohammad Shishir Manir, a lawyer for a party to the case, told reporters that the HC in its observation said that the 15th amendment was contrary to the summary judgment of the Appellate Division of the Supreme Court on the 13th Amendment to the Constitution.

He also said the HC declared Sections 20 and 21 of the 15th amendment regarding annulment of the caretaker system to be void and unconstitutional. The court said the two sections had destroyed the basic structure of the constitution.

In its verdict, the court also struck down Articles 7(A) and 7(B) of the Bangladesh Constitution, declaring them void and unconstitutional.

 “The fundamental rights of the people to freedom of thought, conscience and speech were violated by inserting Articles 7(A) and 7(B), whereas comments against the constitution are penalised as sedition,” said Advocate Ishrat Hasan, a lawyer of another party to the case.

Attorney General Md Asaduzzaman said the insertion of the articles destroyed the supremacy of the constitution.

Article 7(A) deals with ‘offence of abrogation, suspension, etc’ and Article 7(B) states that the ‘basic provisions of the constitution are not amendable’.

Calling the HC verdict historic, Dr Sharif Bhuiyan, a lawyer for a party, said, “We’ve overcome the obstacle of the caretaker government system. However, the verdict on the caretaker government delivered by Justice Khairul Haque will have to be reconsidered to bring back the system. It’ll be heard in the third week of January.”

In the verdict, the High Court said the caretaker government system was introduced to ensure impartial elections and foster political stability. The system was introduced through political consensus.

About the referendum, the court said, “The beauty of the constitution lies in empowering the people. The people are the source of all power.”

The High Court, however, did not interfere in the provisions of the 15th Amendment Act which deals with the state principles, including the state region, secularism, socialism, nationalism, father of the nation and the number of reserved seats for women in parliament, saying the future governments will take the decision about these issues.

The court also clarified that the current interim government is not a caretaker government.

It said the present government is totally different as it was formed by the President following the opinion of the Appellate Division of the Supreme Court under Article 106 of the constitution.

On 5 December, the High Court bench fixed 17 December as the date for the announcement of its verdict after concluding hearings on the two writ petitions.

In the public interest, five prominent individuals, including Dr Badiul Alam Majumdar, secretary of Shusashoner Jonnya Nagorik and now the head of the Electoral System Reform Commission, filed one of the writ petitions on 18 August. The four others are -- Tofail Ahmed, M Hafiz Uddin Khan, Zobairul Haque Bhuiyan and Zahra Rahman.

Another writ petition was filed by Mofazzal Hossain, a freedom fighter from Narayanpara in Naogaon.

Several political parties and organisations, including the BNP, Bangladesh Jamaat-e-Islami, Gono Forum and Insaniyat Biplob Party, and some other individuals later joined the petitions.

On 19 October, the HC bench issued a rule asking the government to explain why the Constitution (Fifteenth Amendment) Act, 2011 should not be declared unconstitutional. It also questioned why actions taken under the amendment should not be invalidated.

Earlier on 19 August, the HC bench, led by Justice Naima Haider, who is currently on leave, issued a similar rule following the petition of the five citizens.

The 15th amendment to the constitution was introduced during the Awami League government with the bill passed in parliament on 30 June 2011.

Alongside abolishing the caretaker government system, the amendment also increased the number of reserved seats for women in parliament from 45 to 50.

It also criminalised the unconstitutional seizure of state power as sedition, punishable by the maximum penalty, constitutionally recognised Sheikh Mujibur Rahman as the Father of the Nation, restored secularism and religious freedom, and reintroduced nationalism, socialism, democracy and secularism as state principles.

Additionally, it changed the election timeline, requiring elections to be held within the 90 days preceding the end of parliament’s term, instead of within 90 days after the term’s expiry.

‘Absolute Trust and Faith in Almighty Allah’ has been omitted from the preamble of the constitution.