The Appellate Division of the Supreme Court on Tuesday began hearing fresh appeals challenging its 2011 verdict that had annulled the election-time caretaker government system, which paved the way for the Awami League regime to remove the provision from the constitution of Bangladesh.
After the first day鈥檚 hearing, senior lawyer Sharif Bhuiyan told journalists that although the caretaker system might be revived through the review, the forthcoming parliamentary elections would still be held under the interim government, as it was formed under a special constitutional order.
鈥楬owever, the following Jatiya Sangshad elections will be conducted under a caretaker government, since the law requires elections to be completed within 90 days under a caretaker administration after the dissolution of parliament,鈥� he told reporters in reply to a question.
A seven-member bench, led by chief justice Syed Refaat Ahmed, started hearing arguments from senior lawyer Sharif Bhuiyan, who represented five eminent citizens, including Sushashoner Jonno Nagorik secretary Badiul Alam Majumdar.
During the hearing, Sharif Bhuiyan argued that the abolition of the caretaker government system had undermined the basic structure of the constitution.
鈥楤y abolishing the caretaker government system, democracy was destroyed and the basic structure of the Constitution was violated,鈥� he said, stressing that restoring the system was crucial to ensuring the democratic rights of the citizens.
After the first day鈥檚 proceedings, the Appellate Division set Wednesday for the next hearing.
After Tuesday鈥檚 hearing, Sharif Bhuyain, at a press briefing, also said that the bench led by Justice Khairul Haque had abolished the caretaker government system due to a 鈥榤isapplication of constitutional conventions鈥�, through which democracy was effectively killed.
He said that the verdict regarding the caretaker government system failed to take into account the realities of the country, resulting in three consecutive one-sided national elections.
Sharif noted that the 13th amendment had been passed with the consent of all political parties, including the Awami League and the BNP, with participation from experts and civil society representatives.
鈥榊et, without any reasonable explanation, the system was abolished through an arbitrary order. The 700-page verdict was unnecessary and wasteful. We believe that it was harmful to the country鈥檚 overall environment,鈥� he said.
He said that Justice Khairul had argued that an unelected government was unconstitutional, but pointed out that previous governments had appointed unelected advisers, who wielded more influence than ministers.
Referring to the 2014, 2018, and 2024 elections, Sharif also said that all three were controversial and held amid a lack of judicial independence, widespread enforced disappearances, and extrajudicial killings.
鈥楽uch incidents would not have occurred if there had been a truly democratic environment,鈥� he added.
The appellate division, after the ouster of the Sheikh Hasina-led Awami League regime on August 5, 2024 amid a mass uprising, on August 26, 2024 allowed five eminent citizens to file a petition to challenge the verdict.
The BNP and the Bangladesh Jamaat-e-Islami later filed another petition supporting the citizens.
According to the appeals, the previous Appellate Division led by the then chief justice ABM Khairul Haque had observed in open court on May 10, 2011 that the 10th and 11th national elections could still be held under a caretaker government.
However, when the full text of the verdict was released on September 16, 2012, after justice Khairul鈥檚 retirement, those observations were omitted. Instead, the written judgment stated that only elected lawmakers could form a government, effectively ruling out the caretaker system.
In the final judgment, justice Khairul also proposed that the Jatiya Sangsad be dissolved 42 days before an election and a small interim cabinet would run routine affairs until a new government took office. The proposal, critics say, had no constitutional basis.
Justice Md Wahhab Miah, one of the seven judges who heard the case, later commented that the written verdict did not match the 鈥榮hort order鈥� delivered in open court.
The appeals further argued that the caretaker system was struck down by a narrow 4-3 majority, with three judges supporting justice Khairul鈥檚 view and three others, including justice Wahhab Miah, dissenting, raising questions about the legitimacy and democratic implications of the ruling.
