In a much-anticipated judgement, the High Court this week declared key provisions of the 15th amendment to the constitution, rammed through parliament in June 2011 on the strength of the Awami League's brute majority, illegal for undermining what is understood to be the 'basic structure' of the constitution, including fundamental issues like 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, that in many ways served as a charter underpinning the Awami League's 15-year spell in power, that many now describe as the era of fascism in Bangladesh. Undoubtedly it was a period of democratic backsliding in the country, something that almost all the international democracy indices, from Freedom House to the V-Dem Institute and the Economist Intelligence Unit can attest to.

That era is now over. By August 5, 2024 the Bangladeshi people, led with unusual aplomb and at times breathtaking chutzpah by a group of young university students, were fed up, and in the end what was remarkable was how quickly and drastically the political landscape turned hostile towards the now deposed prime minister, Sheikh Hasina, who has led Bangladesh for 20 out of its 53 years as an independent nation. Her transformation from the orphaned daughter of Bangabandhu Sheikh Mujibur Rahman, who through years of dedication revived the Awami League and led it back to power, to a hated autocrat, was by then complete. And millions of Bangladeshis on the streets of the capital that morning, ready to march on Ganobhaban, her official residence, weren't having it anymore.

The move to challenge the 15th amendment started almost immediately after Hasina was left with no option but to flee the country. It was particularly close to the heart of the veteran activist, and relentless campaigner for better governance, Badiul Alam Majumdar, secretary of Shujan (Citizens for Good Governance). In fact he was one of the first persons to flag the issue, and then also do something about it. On August 18, less than two weeks after Hasina fled, five prominent individuals, including Majumdar, filed a writ petition challenging the amendment.

Later the BNP, Gono Forum, Bangladesh Jamaat-e-Islami and other organisations and individuals also joined as interveners in this rule.

It is important to note however, that this ruling does not immediately bring back the caretaker government. A hearing on three review petitions pleading for the restoration of the 13th amendment to the Constitution and thereby reinstatement of the poll-time non-party caretaker government system is scheduled for January 19. Depending on what the Appellate Division says, a provision for future elections to be held under the caretaker system is a possibility. We should note however that the next will most likely be held under the current interim government. Although for all intents and purposes, they serve the same purpose of a neutral administrator for elections contested between political parties, legally the two entities would differ.

Attorney General Mohammad Asaduzzaman said, "The review petition regarding the reinstatement of the Caretaker Government system is under consideration in the Appellate Division. The findings of this order (from the HC) will be presented there. Ultimately, the Appellate Division will make the final decision on the caretaker government system."

Dr Sharif Bhuiyan, the lawyer representing the petitioners, said, "A major obstacle to the return of the caretaker government system has been removed. However, it cannot be said that it has fully returned, as it was abolished in two ways-by the court's order and by the constitutional amendment passed by Parliament."

What the High Court said

The 15th amendment was passed in Parliament on June 30, 2011, during the Awami League government, and the gazette was issued on July 3, 2011.

The amendment abolished the caretaker government system and granted constitutional recognition to Bangabandhu Sheikh Mujibur Rahman as the Father of the Nation.

Additionally, the number of reserved seats for women in Parliament was increased from 45 to 50, secularism and religious freedom were reinstated in the Constitution, and nationalism, socialism, democracy, and secularism were restored as state principles.

The 15th amendment abolished the caretaker government system and increased the number of reserved seats for women in Parliament from 45 to 50.

It also declared unconstitutional seizure of state power as an act of sedition and introduced the maximum punishment for those guilty of the offence.

Previously, elections were to be held within 90 days after the end of a parliamentary term, but the amendment stipulated that polls must be organised within the preceding 90 days.

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 the 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, the 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, the court rather astutely observed, 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 against all odds.

Parties raise a toast

The BNP welcomed the verdict, as the party said the High Court has recognised that an elected parliament is the appropriate forum for constitutional amendments.

"We welcome and appreciate this verdict," BNP Secretary General Mirza Fakhrul Islam Alamgir said while addressing a press conference at the BNP Chairperson's office in Gulshan, the day after the verdict.

The court recognised that the next elected parliament will be the only appropriate forum for amending the constitution, Fakhrul added. When asked whether their party had achieved what it wanted from the court's verdict on the 15th Amendment, the BNP secretary general referred to the various proposals they had submitted as interveners during the hearings, but he noted that the court did not fully consider their proposals.

As noted earlier, most of the 15th amendment has been left as is. The High Court bench was not very keen on changing much beyond that which was absolutely necessary, for the sake of democracy.

BNP Standing Committee member Salahuddin Ahmed said the apex court acknowledged that Parliament holds the jurisdiction to amend the Constitution.

He said all the things that truly undermined the basic structure of the Constitution, the principles of democracy, and altered the character of the Constitution were declared unconstitutional and illegal by the court.

Salahuddin said the court also paved the way for reinstating the caretaker government system, recognising it as a fundamental aspect of the Constitution.

He said the verdict also reinstated Article 96, which pertains to the Supreme Judicial Council, as well as the provision on referendums. The BNP leader said the fascist Awami government had declared almost a third of the constitution unamendable, which were nullified by the verdict.

"The Constitution is not such a document that cannot be changed... the court declared those provisions invalid and abolished them. The Supreme Court has the authority to interpret all laws passed by Parliament if they contain unconstitutional elements. The court has left the remaining matters to Parliament, possibly because it may have felt that there are political decisions to be made here," he said.

That clearly works very well for the BNP, who still expect to be by far the strongest force going into the next election, and as time goes by, is acting more and more like a 'government in waiting'. Jamaat-e-Islami, on the other hand, congratulated the nation on the "restoration of voting rights".

In a statement, Professor Mia Golam Parwar, Secretary General of Jamaat and a former MP, termed the court's decision a significant victory for the people of Bangladesh.

"The 15th Amendment, passed on June 30, 2011, in the national parliament, had completely destroyed the people's voting rights and the electoral process," said Parwar.

"It created a tendency to seize power without elections, resulting in no genuine elections being held in 2014, 2018, and 2024. What occurred under the guise of elections was nothing but a farce. This amendment effectively destroyed democracy and the democratic process in the country."

Prof Parwar hailed the High Court's verdict as a milestone for democracy, stating that it re-established the rights of the people.

"This is another victory for the people. We extend our heartfelt congratulations and greetings to the nation for this achievement in restoring voting rights through a legal battle," he added.

An intervener on behalf of Bangladesh Jamaat-e-Islami, senior advocate Mohammad Shishir Manir, said the constitution has a basic structure of doctrine which is not possible to change but the 15th amendment violated it and made some changes in that "fabric of the constitution".

"Democracy is the basic structure of our constitution, and the court said the caretaker government also became a basic structure of the constitution as without such kind of government it is not possible to conduct free, fair and impartial elections," he said.

An old warhorse triumphs

Now heading the electoral system reform commission under the interim government, Badiul Alam Majumdar, in his first reaction to the ruling, expressed satisfaction with the High Court ruling. He said that through this verdict, an important door to return to a democratic system has been opened.

Majumdar, a tireless crusader in the cause of democracy for close to four decades now, said: "I am excited, happy and very satisfied. I feel that this is a historic ruling. This is a seminal judgement."

For more than a decade, he has been railing against the unconstitutionality of the 15th amendment, and even authored a book,'Tatyabdhayak Sarkar Bebostha Batiler Rajniti'(Politics of Cancelling the Caretaker System) detailing the procedural flaws and unscrupulous politics behind the amendment's passage in 2011.

He said he was happy not just for himself, but for the people of the country. This ruling opened an important door to returning to the democratic system. However, this depends on future behaviour. Reverting to democracy meant a change. If everyone changed their behaviour, if politicians changed their behaviour, if everyone carried out their responsibilities, then democracy would be restored. If not, it would not return, he said.

Majumdar said the authoritarian system of government was established in two ways. One was by abolishing the 13th amendment that contained the caretaker provision for elections, that left elections to be held under a partisan government. Bangladesh's experience of three subsequent elections that were held in this manner, in 2014, 2018 and 2024, is its own indictment of how miserably this switch failed to serve the purpose of democracy. The other was by the addition of Article 7(A) to the constitution.

Badiul Alam Majumdar said that he and many others were alert about this. The court has given recognition to him and the others who were active in this regard. He thanked the court and expressed gratitude. He said they had fought on behalf of the people despite the adverse circumstances. They filed the writ on behalf of the truth, justice and to revert to the democratic system. He said he was happy for the people of the entire country.