HC declares key provisions of 15th amendment partially unconstitutional

The High Court on Tuesday declared key provisions of the 15th amendment to the constitution illegal for undermining the basic structure of the constitution, including democracy, the will of the people, and judicial independence.

The bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury, however, refrained from giving any decision on several other changes brought to the constitution by the 15th amendment, leaving their validity to be decided by successive parliaments in accordance with constitutional and legal principles.

The bench pronounced the verdict scrapping the amendments that abolished the election-time non-party caretaker government system and restricted amendment to certain articles of the constitution, among other changes.

The High Court came up with the verdict in two public interest litigation writ petitions filed 13 years after the amendment was enacted by the parliament during Sheikh Hasina’s Awami League government in 2011.

The petitions were filed following the student-people uprising on August 5, 2024 that led to the ouster of Sheikh Hasina and her subsequent flight to India. 

The petitioners, including five eminent citizens such as Sushashoner Jonno Nagorik secretary Badiul Alam Majumder, argued that the 15th amendment undermined the constitutional framework by abolishing the caretaker government  system, restricting judicial powers and curtailing the scope for amendments.

The writ petitions got support from the Bangladesh Nationalist Party, the Bangladesh Jamaat-e-Islami, the Gonoforum and several other individuals as they intervened in the case.

Petitioners’ lawyer Sharif Bhuiyan highlighted that while the High Court invalidated the repeal of the caretaker government system, its restoration would depend on the outcome of a review petition pending with the Appellate Division.

The review petition challenged the Appellate Division’s May 10, 2011 ruling that declared illegal the 13th amendment to the constitution, which introduced the caretaker government system.

The Appellate Division is scheduled to hear the review petition in January 2025.

Attorney general Md Asaduzzaman interpreted the High Court verdict as the validation of the non-party caretaker government system, suggesting that the interim government could be restructured and renamed to align with the verdict.

He noted that the framework for the caretaker government might ultimately be shaped by the Appellate Division decision on the review petition on the 13th Amendment aligned with the High Court verdict.

The verdict reignited debates over the constitutional role of caretaker governments in ensuring free and fair elections, a critical issue in Bangladesh’s evolving political landscape.

The High Court in the verdict found that several changes brought to the constitution through the 15 amendment by deposed Sheikh Hasina’s Awami League government in 2011 violated the constitution’s fundamental principles.

The court declared the repeal of article 58A and chapter 2A of the constitution, which introduced the non-partisan caretaker government in 1996 through the 13 amendment, beyond the authority of the legislature. 

‘The abolition of these provisions by sections 20 and 21 of the 15th Amendment Act was found to have destroyed the constitution’s basic structure of democracy. These sections were, therefore, declared void,’ the verdict said.

The repeal of the provision for referendum under article 142, which was incorporated through the 12th amendment to constitution in 1991, was declared unconstitutional.

The court held that the abolition of the referendum mechanism negated the people’s right to express their opinion on constitutional amendments.

‘The referendum mechanism under Article 142, which allowed for amendments to fundamental provisions like the Preamble, articles 8, 48(6), and 56, was restored to its original form as introduced in the 12th Amendment,’ the verdict said.

‘The repeal of this democratic safeguard by the 15th Amendment Act was declared repugnant to the basic structure of the constitution,’ it said.

Articles 7A and 7B, introduced through the 15th amendment, were declared null and void for being in direct conflict with article 7 of the constitution, which guarantees the supremacy of the constitution and the will of the people.

‘These provisions restricted future parliaments from amending certain aspects of the constitution, violating the democratic principle of parliamentary sovereignty,’ the court observed.

The court emphasised that these amended articles undermined fundamental rights, including freedom of thought, speech, and conscience.

The court invalidated article 44(2), which allowed courts established under ordinary laws to exercise powers of judicial review that were traditionally vested in the High Court under articles 44(1) and 102(1).

The court held that this provision diluted the authority of the High Court, a creation of the constitution with plenary powers of judicial review over executive and legislative actions.

The court declared section 18 of the 15th Amendment Act, which introduced Article 44(2), inconsistent with the basic structure of the constitution.

While the High Court acknowledged procedural flaws in the 15th Amendment Act 2011, it declined to declare it void in its entirety.

The verdict noted that the Appellate Division, in its ruling on the 16th amendment to the constitution, restored the Supreme Judicial Council for the removal of Supreme Court judges on grounds of misconduct or incapacity, reaffirming judicial independence.

The 15th amendment retained the council, but the 16th amendment abolished it, transferring the authority to the parliament.

The court found a significant contradiction between the 15th amendment and the Appellate Division short order passed on May 10, 2011, which allowed the caretaker government system to remain in place for two more election cycles, 10th and 11th parliamentary elections.

The 15th amendment, passed on June 30, 2011, abolished the caretaker government system despite the short order being in effect, said the verdict.

This inconsistency underscored the flawed legislative process behind the amendment, the court noted.

The court highlighted that the non-party caretaker government system was not part of the original 1972 constitution but was introduced through the 13th amendment to the constitution in 1996 to ensure free and fair elections.

The system emerged from a national consensus among political parties and civil society, becoming a key feature of the constitution’s basic structure to safeguard electoral impartiality.

By repealing this system, the 15th amendment undermined the constitution’s core democratic principles, including the people’s sovereignty as guaranteed under article 7, the court observed.

The court remarked that the abolition of the caretaker government system led to three successive elections in 2014, 2018 and 2024 that failed to garner public trust or demonstrate electoral integrity.

Allegations of voter suppression, rigging, and lack of fairness in these elections eroded public confidence in the democratic process.

This dissatisfaction culminated in a student-led revolution, marked by the tragic loss of thousands of lives and widespread injuries, ultimately forcing the resignation of the previous government, the court observed.

It acknowledged the formation of the current interim government under extraordinary circumstances supported by a decision of the Appellate Division on a presidential reference funder article 106 of the constitution.

While not rooted in the caretaker government framework, the interim government emerged as a necessity to address the national demand for electoral reforms.

The court underscored the urgent need for a system that ensures free and fair elections, paving the way for a ‘new democracy’ and restoring public trust in the electoral process.

The verdict concluded that Parliament, as a legislative body, lacks the authority to amend constitutional provisions that form the basic structure of the constitution.

Consequently, the repeal of the caretaker government system was declared beyond the parliament’s authority and void with prospective effect, the verdict said.

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New Age | HC declares key provisions of 15th amendment partially unconstitutional