The Appellate Division of the Supreme Court on Wednesday granted the Bangladesh Nationalist Party permission to appeal its 2011 verdict that abolished the non-party caretaker government system — once seen as crucial to ensuring free and fair national elections in Bangladesh.
A seven-member bench, headed by chief justice Syed Refaat Ahmed, granted leave to appeal after two days of hearings on a series of petitions filed in the wake of the student-led mass uprising that ousted former prime minister Sheikh Hasina on August 5, 2024.
The BNP and Bangladesh Jamaat-e-Islami filed separate petitions following an initial petition filed by five eminent citizens — Shujan president M Hafizuddin Khan, secretary Badiul Alam Majumder, local government expert Tofail Ahmed, and citizens Md Jobirul Hoque and Zahrah Rahman.
The Appellate Division fixed October 21 for the formal hearing of the appeal.
The chief justice wanted to know how the caretaker government provision would invoke if it was reinstated to the constitution.
Attorney general Md Asaduzzaman opined that the apex court might issue observation when and how the caretaker government becomes effective.
He told the court that the 2011 verdict needed to be reviewed and scrapped in order to uphold democratic principles — which form part of the constitution’s basic structure.
He argued that the caretaker government system was a constitutional, not political, matter.
He said that the caretaker government system was introduced by consensus among political parties after the fall of the autocratic Ershad regime, with the aim to ensure neutral elections. Since then, it was a part of the constitution, he added.
The attorney general suggested that the Supreme Court could resolve the caretaker government issue directly, without wasting time by granting leave or requiring further appeals.
BNP lawyer Zainul Abedin told the court that former chief justice ABM Khairul Haque committed a ‘fraud upon the administration of justice’ by altering the final judgment 16 months after his retirement.
According to Zainul, the original bench, chaired by Justice Khairul, had observed in open court on May 10, 2011, that the 10th and 11th parliamentary elections could be held under a caretaker government.
However, those observations were omitted from the final verdict published on September 16, 2012 — after Justice Khairul had retired.
Instead, the written judgment stated that only elected lawmakers could form a government, ruling out any future use of the caretaker system. Justice Khairul also introduced the idea that Parliament could be dissolved 42 days before the polls and a small interim cabinet could carry out routine governance until a new government took office — a proposal many have criticized as lacking constitutional legitimacy.
Justice Md Wahhab Miah, one of the seven original justices on the caretaker case, later remarked that the final verdict did not align with the short order delivered in open court.
