HC restores voting rights, nullifies caretaker system ban
Staff Reporter :
The High Court on Tuesday issued a landmark judgment, declaring parts of the Constitution’s 15th amendment, which abolished the non-party caretaker government system, to be void and unconstitutional.
The ruling also reinstated the provision for holding referendums on any constitutional amendments, marking a significant development in the country’s constitutional and electoral landscape.
A bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury observed that sections 20 and 21 of the 15th amendment contradicted the Constitution and undermined its fundamental principles, including democracy, the independence of the judiciary, and the mechanism for holding free and fair elections.
The court stated that abolishing the non-party caretaker government system had disrupted the electoral process, which is a cornerstone of democracy. The Bangladesh Nationalist Party (BNP) and Bangladesh Jamaat-e-Islami welcomed the High Court’s decision.
The verdict followed a 23-day hearing arising from a writ petition filed by five prominent individuals, including Badiul Alam Majumdar, Secretary of Shushashoner Jonno Nagorik (SHUJAN).
The petition, submitted on 18 August 2011, challenged the validity of the 15th amendment. Following the initial hearing, the court issued a rule on 19 August, questioning why the amendment should not be declared unconstitutional.
In its ruling, the High Court also annulled Articles 7A, 7B, and 44(2) of the Constitution, which were introduced through the 15th amendment.
Article 7A criminalised the suspension or abrogation of the Constitution, while Article 7B rendered certain constitutional provisions non-amendable. Furthermore, Article 44(2), which allowed courts other than the High Court Division to enforce fundamental rights, was also declared void.
The court criticised the abolition of the referendum provision-originally part of Article 142 under the 12th amendment in 1991-declaring it unconstitutional. Consequently, the referendum system was restored, ensuring that any future constitutional amendment reflects the public’s mandate.
However, while declaring parts of the amendment void, the court clarified that it had not annulled the entirety of the 15th amendment.
It placed responsibility on the next national parliament to address the remaining constitutional issues. The court underscored that, with the public’s mandate, parliament has the authority to amend, rectify, or change constitutional provisions as per the law.
The 15th amendment was passed during the tenure of the Awami League government on 30 June 2011 and received presidential assent on 3 July 2011. It introduced sweeping changes, including the abolition of the non-party caretaker government system, which had previously ensured impartial oversight of parliamentary elections.
Tuesday’s ruling has reignited discussions on electoral reforms and the need for a neutral election-time government. Legal experts and political analysts have described the verdict as a pivotal step towards restoring constitutional balance and ensuring free and fair elections in the country.
With the caretaker government issue and the referendum system back in focus, the next parliament is expected to play a decisive role in addressing the court’s observations and upholding the Constitution’s foundational principles.
BNP Standing Committee member Khandaker Mosharraf Hossain stated that the ruling reflected the aspirations of the people. In his immediate reaction, he remarked that Prime Minister Sheikh Hasina had abolished the caretaker government system to serve her party’s interests, paving the way for “one-party rule” and leading to the Awami League’s eventual downfall.
Meanwhile, Bangladesh Jamaat-e-Islami also expressed approval of the court’s decision. In a statement, its Secretary General, Professor Mia Golam Parwar, hailed the verdict as a significant victory for democracy and the people of Bangladesh.
Professor Parwar stated, “The 15th amendment, passed on 30 June 2011, had completely undermined the people’s voting rights and disrupted the electoral process.
It fostered a tendency to seize power without credible elections, resulting in the absence of genuine elections in 2014, 2018, and 2024. What took place under the guise of elections was nothing short of a farce. This amendment effectively destroyed the democratic process in our country.”
He praised the High Court’s judgment as a milestone for democracy and the rule of law, asserting that it restored the people’s right to vote.
“This verdict is a victory for the nation. We extend our heartfelt congratulations to the people for achieving this important milestone through a legal battle,” he added.