The High Court yesterday issued a rule questioning the constitutionality of the 15th amendment that scrapped the nonparty caretaker government system and brought some significant changes in the charter.
The 15th amendment bill was passed by the Jatiya Sangsad on June 30, 2011, and signed into law on July 3 the same year. It abolished the caretaker government system introduced by the 13th amendment in 1996.
The law also recognised Sheikh Mujibur Rahman as Father of the Nation and increased the number of reserved seats for women in parliament to 50 from 45.
Following the amendment to the constitution, three general elections were held on January 5, 2014, December 30, 2018 and January 7 this year, with Awami League President Sheikh Hasina in the prime minister’s office. The scrapping of the 13th amendment created huge controversy and sparked outrage among the opposition political parties.
Yesterday, the HC also asked the respondents to the rule to show causes why the Constitution (Fifteenth Amendment) Act, 2011 should not be declared unconstitutional, and why the previous actions and deeds done or taken in any manner under this act should not be treated as transactions past and closed.
Secretaries at the ministry of law and Jatiya Sangsad Secretariat have been made respondents to the rule, which is returnable in 10 days.
The HC bench of Justice Naima Haider and Justice Sashanka Shekhar Sarkar issued the rule following a writ petition challenging the legality and constitutionality of the 15th amendment.
Speaking to reporters after the issuance of the HC rule, Attorney General Md Asaduzzaman said Bangladesh was taken towards non-democratic rule through the 15th amendment to the constitution and a situation like interfering in the judicial functions was created.
During the hearing on the petition, Sharif Bhuiyan, counsel for the petitioners, told the HC bench that the basic structures of the constitution — democracy and election — have been damaged by the 15th constitutional amendment.
The Appellate Division of the Supreme Court in its judgement in the 13th amendment (caretaker government system) case had asked for holding two national elections (10th and 11th) under caretaker governments, but the 15th amendment abolished the caretaker government system and therefore, those elections were held under political governments, he said.
Sharif said the 15th amendment states that the president would conduct a referendum within seven days from the date of the amendment bill presented to him, but no such referendum was held and therefore the 15th amendment is illegal.
The provision of the 15th amendment, which said that basic structures of the constitution cannot be amended, is unconstitutional as it has damaged the sovereignty of parliament which is elected by the people, the lawyer argued.
Five conscious citizens — Badiul Alam Majumdar, secretary of rights organisation Shushashoner Jonno Nagorik, Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan and Zahrah Rahman — submitted the petition as a public interest litigation to the HC on August 18.
They stated in the petition that following the abolition of the nonparty caretaker government system through the 15th amendment act, the nation saw three consecutive failed elections in 2014, 2018 and 2024 and it ultimately led to the July 2024 uprising by students and ordinary people and the fall of the government on August 5, 2024.
The 13th amendment was incorporated in the constitution to ensure free and fair election and strengthen democracy and therefore, the 13th amendment became part of the basic structure of the constitution since 1996.
The 13th amendment represented the “will of the people” and a “political consensus and settlement” as it was made in the context of the demand of major political parties, and the public, including civil society, the petitioners stated in the writ petition.
According to the writ petition, a 15-member special parliamentary committee was formed on July 21, 2010 to amend the constitution. Twelve members of the committee were senior Awami League leaders.
After consulting 104 distinguished citizens, the committee on March 29, 2011, unanimously recommended amending the constitution by retaining the nonparty caretaker government system with a three-month tenure.
After holding a meeting with then prime minister Shiekh Hasina, the committee the following day changed its previous recommendation. It suggested amending the constitution to abolish the nonparty caretaker government system. Thus, it is clear that while the committee and other participants in the special parliamentary committee meetings were in agreement to retain the nonparty caretaker government system, the entire system was abolished only on the recommendation of then prime minister Hasina.
On June 30, 2011, the Jatiya Sangsad passed the 15th constitutional amendment bill. With the passage of the bill, Islam’s status as the state religion was retained and the Arabic phrase “Bismillahir Rahmanir Rahim” with its translation “In the name of Allah, the Beneficent, the Merciful/ In the name of the Creator, the Merciful” was made a part of the constitution.
The amendment also introduced the provisions for holding parliamentary polls in 90 days before the dissolution of parliament, secularism, Bangalee nationalism, more powers for the war crimes tribunal and displaying the portrait of Father of the Nation Sheikh Mujibur Rahman in all government offices.
