The Appellate Division of the Supreme Court on Thursday reinstated the much-talked-about caretaker government provision, overturning its 2011 verdict that abolished the system during the Awami League regime for political mileage.
Through this landmark verdict, the caretaker government system has been brought back after a 14-year gap for a credible oversight of national elections.
A seven-member bench led by Chief Justice Syed Refaat Ahmed passed the verdict following petitions filed by BNP Secretary General Mirza Fakhrul Islam Alamgir, Sushasoner Jonno Nagorik, Jamaat-e-Islami and others to revive the system for free, fair and credible national elections.
In its observation, the full court also described the verdict delivered under the leadership of former Chief Justice ABM Khairul Haque as “disgraceful”.
While delivering the verdict, the court said that the 13th parliamentary elections would be held under the interim administration and it would come into effect while conducting the 14th parliamentary elections. Earlier, the Appellate Division concluded the hearing on 11 November.
Briefing reporters after the verdict, Attorney General Md Asaduzzaman saw it as a victory for the people’s voting rights.
He said the court unanimously took the decision for the restoration of the provision.
“Earlier, the Appellate Division had delivered a verdict cancelling the caretaker government system based on the opinions of the majority. That verdict has now been unanimously annulled by the Appellate Division. The Appellate Division has given this ruling a prospective effect. It means the ruling will come into effect after the next parliament is dissolved. As a result, the caretaker government system has been reinstated,” he said.
When asked what the structure of the caretaker government would be, he said, “The next parliament will determine the structure of the caretaker government.”
According to BNP secretary general’s lawyer, Ruhul Quddus Kazal, the court said that under Article 105 of the Constitution and the Appellate Division’s review powers granted by the Constitution, it found the previous verdict was riddled with errors… in other words, it was tainted.
“Tainted with the error apparent on the face of the record. This is the court’s observation,” he said.
Shishir Monir, who pleaded on behalf of Jamaat, said, “The judgment states that the previous verdict was tainted — called kalankita (disgraced) in Bangla — and an error apparent on the face of the record.”
Various political parties have long been demanding the restoration of the caretaker government system.
The issue of the caretaker government once again reached the SC after the fall of the Sheikh Hasina administration through last year’s July–August uprising.
Earlier, on 17 December 2024, the High Court declared the abolition of the caretaker government system unconstitutional.
On 27 August this year, the Appellate Division granted leave to appeal by accepting the petition seeking a review of the verdict that had abolished the caretaker system. The appeal hearing began on 21 October.
Amid growing mistrust between political parties, the AL government led by Hasina brought an amendment to the Constitution and annulled the provision in 2011, citing a verdict of the apex court.
The BNP government was compelled to introduce the caretaker government provision in 1996 through the 13th Amendment to the Constitution amid pressure by opposition parties led by Awami League.
BNP Standing Committee Member Amir Khosru Mahmud Chowdhury hailed the verdict, saying that a free, fair and credible election could be held under the caretaker government administration.
“The caretaker government system has been restored. Now discussion will be held in the next parliament on how it will be formed,” he said.
One of the petitioners, Badiul Alam Majumder, told reporters that the verdict would pave the way for holding a free, fair and credible election.
“Country’s electoral system collapsed due to the verdict of former Chief Justice ABM Khairul Haque. As a result, serious controversies were created over the last three elections,” he said.
At a briefing, Jamaat Assistant Secretary General Ehsanul Mahbub Zobaer said that the verdict which scrapped the caretaker government provision was a controversial and politically motivated one.
“Sheikh Hasina got the opportunity to establish an autocratic regime due to the abolishment of the system,” he said.
The idea of the caretaker government provision in Bangladesh’s electoral politics emerged mainly because questions were repeatedly raised about the credibility of elections held under political governments.
After HM Ershad’s fall, the 1991 election was held under an informal interim administration led by Justice Shahabuddin Ahmed. However, widespread allegations of rigging in the 1994 Magura by-election changed the situation.
The opposition parties led by the Awami League launched an intense movement in 1995, alleging that a free and fair election under the incumbent political government was impossible.
Facing the movement, the caretaker government system was formally incorporated into the Constitution through the 13th Amendment in 1996.
Under that amendment, it was stated that after the term of an elected government ended, a non-partisan and neutral government would take over. The main responsibility of the caretaker government would be to ensure a free, fair, and neutral national election within the next three months (90 days).
Under this system, the elections of 1996 and 2001 were comparatively acceptable, which allowed peaceful transfers of power in both instances.
After 2006, the structure of the caretaker government system in Bangladesh became complicated. In particular, fierce disputes emerged among political parties over the appointment of the chief adviser.
Due to the political deadlock surrounding the formation of the caretaker government in 2006, a state of emergency was declared in the country, and a military-backed caretaker government took power in January 2007.
This government, later known as the 1/11 government, remained in power for nearly two years before AL returned to power in January 2009 through an apparently acceptable national election.
On 10 May 2011, the Appellate Division of the Supreme Court declared the 13th Amendment unconstitutional.
The caretaker system was abolished through a majority opinion delivered by a seven-member Appellate Bench led by then Chief Justice ABM Khairul Haque.
In that verdict, it was stated that the caretaker government system —the 13th Amendment — was undemocratic and in conflict with the basic structure of the Constitution.
Thereafter, the system was permanently abolished through the 15th Amendment to the Constitution.
After the abolition of the caretaker government system, the 2014, 2018, and 2024 elections in Bangladesh were all held under the incumbent government.
The acceptability and transparency of these elections were widely questioned both domestically and internationally.
The major opposition parties have consistently claimed that free and fair elections are not possible under a political government. According to them, due to the ruling party’s influence over the administration and law enforcement agencies, voters cannot exercise their voting rights freely.
