ARTICLE TEXT

No constitutional case in Bangladesh has had a more dramatic history than the challenge to the caretaker government system. In 2011, the Appellate Division declared the system unconstitutional by the narrowest possible margin. In 2025, on review, a differently constituted Appellate Division set that judgment aside without a single dissent. Between those two decisions lie three disputed general elections and a revolution in the country’s politics.

The Caretaker System

The Constitution (Thirteenth Amendment) Act 1996 inserted Chapter IIA, Articles 58B to 58E, into the Constitution. It provided that when Parliament was dissolved, a non-party caretaker government, headed by the most recently retired Chief Justice, would govern for up to ninety days and help the Election Commission hold a free and fair general election. Three elections were held under the system, in 1996, 2001 and 2008.

The Challenge

The amendment was challenged by writ petition. In 2004, a Special Bench of the High Court Division, in M Saleem Ullah v Bangladesh, upheld it. The petitioner, Abdul Mannan Khan, appealed.

The 2011 Judgment

On 10 May 2011, a seven-judge bench of the Appellate Division delivered a short order. By a majority of four to three, it declared the Thirteenth Amendment void, but prospectively. Chief Justice ABM Khairul Haque led the majority, with Md Muzammel Hossain, SK Sinha and Syed Mahmud Hossain JJ. Md Abdul Wahhab Miah J and Nazmun Ara Sultana J dissented, and Md Imman Ali J took the view that the question should be left to Parliament.

The majority held that an unelected government, even for ninety days, was inconsistent with democracy and the republican character of the state, which are basic features of the Constitution (Articles 7, 11, 55 and 56). They also held that linking the office of Chief Adviser to retired Chief Justices damaged the independence of the judiciary. The short order said that the next two parliamentary elections could be held under the caretaker system for the sake of stability, but that Parliament should exclude judges from it.

Within weeks, and before the full judgment was published, Parliament passed the Fifteenth Amendment on 30 June 2011, abolishing the caretaker system entirely. The full judgment appeared in September 2012. Critics noted that it differed in important respects from the short order, particularly on the two further elections. The general elections of 2014, 2018 and 2024 were all held without a caretaker government, and all were bitterly disputed.

The Reversal

After the political change of August 2024, the question returned to court. On 17 December 2024, the High Court Division struck down the provisions of the Fifteenth Amendment that had abolished the caretaker system, along with several other parts of that amendment.

Review petitions against the 2011 judgment were filed by Badiul Alam Majumdar and others, the BNP, Jamaat-e-Islami and another petitioner. On 20 November 2025, a seven-judge bench presided over by Chief Justice Syed Refaat Ahmed allowed the reviews unanimously. It set aside the 2011 judgment in its entirety and restored Chapter IIA. Among its reasons, the court identified errors apparent on the face of the record, including the inconsistency between the short order and the full judgment. The restored system is to apply prospectively, from the fourteenth parliamentary election. On 9 July 2026, the Appellate Division also dismissed appeals against the High Court Division’s December 2024 verdict.

Why It Matters

The case raises some of the hardest questions in constitutional law. Is an unelected interim government a threat to democracy, or a safeguard of it where trust in elections has broken down? How much weight should courts give to a system that the people’s representatives adopted and that commanded broad political support? And what are the limits of review, a remedy normally reserved for clear errors, when used to overturn a landmark constitutional judgment?

For students, the case is a study in the basic structure doctrine applied to electoral design, in the importance of consistency between short orders and full judgments, and in the power of the Appellate Division to correct itself. For the country, it has shaped the conduct of elections for three decades, and will continue to do so.

Sources

1. bdnews24, Full judgment of 13th Amendment published: https://bdnews24.com/bangladesh/full-judgment-of-13th-amendment-published
2. Judgment review (Shishir Manir), 13th Amendment: https://static.shishirmanir.com/uploads/store/judgmentreview/e33850cd-adfd-40d9-bb53-0241b3ba6361/document/b7dfcb9ce4efb0437fd6753ac6d43a5d.pdf
3. The Business Standard, Full verdict published restoring caretaker govt system: https://www.tbsnews.net/bangladesh/full-verdict-published-restoring-caretaker-govt-system-constitution-1387841
4. Dhaka Tribune, SC clears way for caretaker government provisions: https://www.dhakatribune.com/bangladesh/court/414678/sc-clears-way-for-caretaker-government-provision-s
5. bdnews24, review judgment report: https://bdnews24.com/bangladesh/bed39344933c