The Appellate Division of the Supreme Court on Wednesday allowed the Bangladesh Nationalist Party to appeal against its 2011 verdict that abolished the non-party caretaker government system.
A seven-member bench, led by chief justice Syed Refaat Ahmed, granted leave to appeal after two days of hearings on five petitions challenging the 2011 verdict.
An initial petition challenging the verdict was filed by five eminent citizens, including Shujan president M Hafizuddin Khan, secretary Badiul Alam Majumder, local government expert Tofail Ahmed, and citizens Md Jobirul Hoque and Zahrah Rahman, on October 20, 2024, following the ouster of the Awami League regime amid a mass uprising on August 5, 2024.
BNP secretary general Mirza Fakhrul Islam Alamgir and Bangladesh Jamaat-e-Islami secretary general Mia Golam Parwar later filed separate petitions following the initial petition of the five eminent citizens.
The Appellate Division granted leave to appeal on two grounds, an apparent error in the previous verdict and other valid legal reasons, which were not spelled out during the hearing.
It fixed October 21 for the hearing of the BNP鈥� appeal together with the four other connected petitions.
The attorney general Md Asaduzzaman suggested that the Supreme Court could resolve the caretaker government issue directly, without wasting time by granting leave or requiring further appeals, as it is a burning issue.
Lawyers Zainul Abedin, Ruhul Quddus Kazal, Sharif Bhuiyan, Imran A Siddiq and Mohammad Shishir Manir echoed the attorney general鈥檚 prayer.
During the hearing, the chief justice wanted to know how the caretaker government system would be invoked if it was revived.
The attorney general opined that the court might issue observation when, how and under what format the caretaker government would become effective if it was revived.
He told the court that the 2011 verdict needed to be reviewed and scrapped to ensure free, fair and credible national election which is basic principle of the democracy.
He argued that the caretaker government system was a constitutional matter and not a political one.
He argued that the caretaker government system was introduced by political consensus after the fall of military dictator HM Ershad after the 90s Anti-Authoritarian Movement to ensure neutral elections, and had since become part of the constitution as an expression of the people鈥檚 will.
He later told reporters that Sheikh Hasina, now in hiding in India, had recently also called for restoring the caretaker government system, which he mocked as 鈥榓 ghost invoking the name of God鈥�.
BNP lawyer Zainul Abedin told the court that former chief justice ABM Khairul Haque committed a 鈥榝raud upon the administration of justice鈥� by altering the final judgment 16 months after his retirement.
According to Zainul, the earlier 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 had criticised as lacking constitutional legitimacy.
Justice Md Wahhab Miah, one of the seven justices on the caretaker case, later remarked that the final verdict did not align with the short order delivered in open court.
Lawyer Sharif Bhuiyan, appearing for the five eminent citizens, urged the court to dispose of the review petition without further hearing, arguing that the 2011 verdict was not a collective decision of the seven-judge Appellate Division, but solely that of Justice Khairul, who is now in jail for manipulating the judgement.
He said that Khairul was praised for the verdict cancelling the caretaker system during the Awami League鈥檚 16-year authoritarian rule, activities of which are now banned.