The Supreme Court Appellate Division on Thursday restored the non-party caretaker government provisions, overturning its 2011 verdict in this regard.
The 2011 verdict had allowed the Awami League government to scrap the 15-year-old election-time caretaker mechanism by the 15th Amendment and hold Jatiya Sangsad polls under the ruling political government.
The court clarified that the 鈥榬estored and revived Chapter IIA鈥� relating to non-party caretaker government provisions 鈥榗an operate only prospectively鈥�.
According to the attorney general and lawyers involved in the case, the upcoming elections will still be held under the interim government while the caretaker system will take effect afterward.
A seven-judge bench, chaired by chief justice Syed Refaat Ahmed, delivered the unanimous verdict.
It observed, 鈥楾his court is satisfied that the judgement under the review is tainted by several cited errors apparent on the face of the record.鈥櫬�
The six other judges included Justice Md Ashfaqul Islam, Justice Zubayer Rahman Chowdhury, Justice Md Rezaul Haque, Justice SM Emdadul Hoque, Justice AKM Asaduzzaman, and Justice Farah Mahbub.
The full judgement shall contain the details, according to the bench.
The Appellate Division reviewed its judgement in very rare cases, said lawyers.
The court allowed separate appeals to be filed by Bangladesh Nationalist Party secretary general Mirza Fakhrul Islam Alamgir and Sushasoner Jonno Nagorik secretary Badiul Alam Majumder.
They challenged the nullification of the caretaker government provisions by the then chief justice ABM Khairul Haque-led seven-member AD bench in 2011.
Bangladesh Jamaat-e-Islami secretary general Mia Golam Parwar and several other individuals had filed petition seeking review of the verdict.聽聽聽
All the petitions were filed following the ouster of the Sheikh Hasina-led AL government amid a student-led mass uprising on August 5, 2024.
According to the short verdict read out by the chief justice, the Appellate聽 Division unanimously allowed the civil appeals and disposed of the civil review petitions.
The previous judgement, it said, 鈥榗ontained several obvious errors鈥� and has completely been cancelled.
The caretaker government system, the apex court said, stands automatically restored, but its operation will 鈥榙epend on enforcing the revived Articles 58B(1) and 58C(2) of the constitution鈥�.
Article 58B(1) says, 鈥楾here shall be a Non-Party Care-taker Government聽 during the period from the date on which the Chief Adviser of such government enters upon office after the parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new prime minister enters upon his office after the constitution of parliament.鈥�
Article 58C (2) says, 鈥楾he president shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an adviser under this article.鈥櫬犅�
Attorney general Md Asaduzzaman told reporters at a briefing at his office that the upcoming elections would be held under the interim government, while the following general elections would take place under the revived caretaker government system.
He said that the Supreme Court scrapped its earlier verdict because it was 鈥榯ainted,鈥� alleging that Khairul Haque resorted to fraudulence under Section 219 of the Penal Code by changing the verdict while writing it.
Badiul Alam Majumder said that the verdict would reopen the path to free, fair, and impartial elections, which he said had been lost in the past three national polls under the AL government after abolishing the caretaker government system.聽聽
His lawyer Sharif Bhuiyan said that the 13th JS elections could not be held under a caretaker government as the constitution under the court-revived articles required such a government to be formed within 15 days of dissolving the Jatiya Sangsad.
He noted that the Jatiya Sangsad was dissolved more than a year ago, making the caretaker government system inapplicable for the upcoming elections announced to be held in February 2026.
Earlier, the Appellate Division in a short verdict on May 10, 2011 had observed that the 10th and 11th JS elections could still be held under a caretaker government. It also said that the Sangsad may pass a law excluding retired chief justices and retired Appellate Division judges from the caretaker government system to safeguard the independence of the judiciary.
However, when the full text of the judgement was released on September 16, 2012 -- after chief justice Khairul鈥檚 retirement -- those observations were omitted and replaced with a new opinion that only elected lawmakers could form a government, effectively ruling out any future caretaker government.
In the final judgement, Justice Khairul introduced the idea that the Jatiya Sangsad could be dissolved 42 days before the polls and a small interim cabinet could carry out the routine governance until a new government took office, a proposal critics say lacked constitutional basis.
Justice Md Wahhab Miah, one of the seven judges who had originally disposed of the caretaker government case, later remarked that the final written verdict did not conform to the 鈥榮hort order鈥� announced in the open court.
The attorney general and other lawyers argued that the 2011 verdict, authored by Justice Khairul, who is now in jail, undermined the constitutional integrity and the democratic process.
They claimed that Khairul Haque committed a 鈥榝raud upon the administration of justice鈥� by modifying the judgement 16 months after his retirement.
The sixth parliament added the caretaker government system to the constitution through the 13th Amendment on March 28, 1996, based on the consensus among political parties.
The demand for the system came following 1994 by-election to a Magura constituency which marked huge rigging and February 15, 1996 鈥榰nilateral national鈥� election under the BNP rule.
Lawyer Salimullah later challenged the amendment in a public interest writ petition.
In 2004, a three-judge High Court bench led by Justice Md Joynul Abedin delivered a verdict rejecting the petition.
After Salimullah鈥檚 death, his junior, Abdul Mannan Khan, filed a leave-to-appeal petition in the Appellate Division in this regard.
The Appellate Division, headed by Justice Khairul Haque, allowed the appeal and struck down the caretaker government system prospectively.
The Appellate Division ruled that its inclusion violated the basic structure of the 1972 constitution and risked politicising the judiciary, as chief justices could be influenced for appointment as chief advisers.
Eight amicus curiae 鈥� except Ajmalul Hossain KC 鈥� supported restoring the caretaker government system.
It is essential, they argued, for holding free, fair and credible elections, which form part of the constitution鈥檚 basic structure.
