Attorney general Md Asaduzzaman on Wednesday told the Appellate Division that former chief justice ABM Khairul Haque and four other judges had breached judicial procedure by altering the short verdict on the caretaker government system 16 months after it was delivered.
He said that the act could amount to a criminal offence under section 219 of the Penal Code, which carries a maximum sentence of seven years.
A seven-member bench led by chief justice Syed Refaat Ahmed adjourned the hearing until Thursday, when the attorney general is expected to conclude his arguments.
On October 21, 2025,聽 the Appellate Division 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.
The Appellate Division, after the August 5, 2024 ouster of the Sheikh Hasina-led Awami League regime, on August 26, 2024 allowed five eminent citizens to file a petition to challenge the verdict.
The Bangladesh Nationalist Party and the Bangladesh Jamaat-e-Islami later filed another petition supporting the citizens.
Asaduzzaman argued that Bangladesh鈥檚 democratic journey had faced repeated setbacks since the adoption of the 1972 constitution, but that certain historical events, including the post-1975 martial law period, temporarily restored people鈥檚 political rights.
He described the emergence of martial law after the August 1975 political turmoil as a 鈥榬are incident in world history鈥� that 鈥榬elieved the people鈥� by restoring voting rights, political freedom, and the taste of democracy.
鈥楾oday鈥檚 Awami League and the Bangladesh Nationalist Party grew under that political reality,鈥� he observed.
鈥極nce a judgment is pronounced, it cannot be changed without following the proper legal process. The altered verdict is null and void in the eyes of the law,鈥� the attorney general submitted during the first day of the government鈥檚 arguments.
Supreme Court judges are public servants and can be held accountable for any 鈥榗orrupt or malicious intent鈥� in the exercise of their judicial functions, Asaduzzaman said.
He also described the 2011 verdict, abolishing the non-party caretaker government system, as flawed and subject to review.
鈥楯ustice Khairul Haque included many irrelevant references in the judgment and made substantive changes after his retirement without observing the review procedure,鈥� he told the court.
The attorney general said that the review petitions were 鈥榝ully maintainable鈥� and that the caretaker government system could be restored through the review process.
If democracy fails to serve the people, citizens have the right to reform it through constitutional means, he submitted.
鈥楩ollowing what is good for the people is intra-constitutional, while opposing it would be unconstitutional,鈥� he said.
Tracing the country鈥檚 constitutional history, Asaduzzaman said that democracy and judicial independence began on November 4, 1972, when the constitution was adopted following the Liberation War.
鈥楤ut within two years, democracy was destroyed, freedom of speech was suppressed, and one-party rule replaced the will of the people,鈥� he said.
He argued that public protests and street movements later revived democracy and led to the introduction of the non-party caretaker government system through the 13th amendment.
Calling the 13th amendment 鈥榠n line with the basic structure of the constitution,鈥� he said that the caretaker system was designed to ensure free voting rights and uphold democratic principles.
Asaduzzaman criticised the 2011 verdict that declared the 13th amendment unconstitutional, calling it per incuriam, a judgment made in ignorance of relevant legal principles.
He said that the caretaker system was essential to protect citizens鈥� rights, strengthen democracy, and prevent the misuse of power.
He added that any interpretation of the constitution that disregards people鈥檚 rights and democratic participation amounts to a 鈥榤isconception of constitutional interpretation.鈥�
A 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.
