THE Appellate Division’s 2025 review judgement revisiting the 13th amendment originally adjudicated in Abdul Mannan Khan v government of Bangladesh (64 DLR (AD) (2012) 169) marks a pivotal moment in the constitutional evolution of Bangladesh. The decision is not just a routine exercise of review jurisdiction; it is an ambitious attempt by the court to bring together the text of the constitution of the People’s Republic of Bangladesh 1972, its basic principles, and the realities of electoral politics. It revisits one of the most consequential constitutional controversies in the country’s history: whether the non-party caretaker government, introduced by the thirteenth amendment in 1996 through Article 58B–58E, is an aberration to representative democracy or a necessary institutional safeguard to ensure its integrity.
The 13th amendment emerged from a context of deep political distrust and systemic electoral crises during the 1990s. It was the product of sustained mass movements and a political consensus designed to guarantee free, fair, and credible parliamentary elections under a neutral interim administration. Yet, in 2011, a narrowly divided Appellate Division invalidated the amendment, invoking the basic structure doctrine and reasoning that unelected governance, even if temporary, is incompatible with the democratic character of the constitution. At the same time, the court pragmatically invoked the doctrine of necessity to allow the system’s temporary continuation for two electoral cycles, an acknowledgement of the gap between constitutional idealism and political reality.
The 2025 review judgement in Dr Badiul Alam Majumdar & Ors v Abdul Mannan Khan & Ors completes a remarkable constitutional cycle by setting aside the 2011 decision and restoring the 13th amendment. In doing so, the court not only corrects what it identifies as an ‘error apparent on the face of the record’ but also redefines the conceptual foundations of democracy within the constitutional order. The earlier judgement had equated democracy with uninterrupted elected incumbency. The review judgement, however, shifts toward a substantive conception of democracy, one that prioritises electoral integrity, political participation and public confidence. In this reading, Article 11, which enshrines democracy, human rights and social justice, is not merely institutional but normative, requiring that elections be genuinely competitive and credible.
This doctrinal shift is grounded in a broader interpretation of constitutional supremacy under Article 7 and the entrenchment of fundamental provisions under Article 7B. The court effectively expands the basic structure doctrine, first articulated in the subcontinent in Kesavananda Bharati v state of Kerala, to include free and fair elections as an indispensable feature of the constitutional order. In doing so, it aligns Bangladesh’s jurisprudence with comparative constitutional trends, including the Indian Supreme Court’s recognition of electoral fairness and the rule of law as basic features, and echoes international democratic standards reflected in instruments such as the International Covenant on Civil and Political Rights, particularly Article 25, which guarantees the right to genuine periodic elections.
The ratio decidendi of the 2025 judgement rests on a reappraisal of constitutional fidelity. It holds that the 2011 decision misapplied the basic structure doctrine by adopting an overly formalist understanding of democracy, failing to account for the structural conditions necessary to realise it. The court now concludes that the caretaker government system does not abrogate democracy but rather reinforces it by ensuring neutrality in electoral administration. This marks a transition from procedural constitutionalism to substantive constitutionalism, where the legitimacy of democratic institutions is measured not only by their formal existence but also by their functional credibility.
The judgement’s broader reasoning is enriched by its engagement with constitutional doctrine and political history. It acknowledges that the caretaker system was born out of popular movements, thereby recognising that constitutional change in Bangladesh has often been shaped by the interplay between legal text and popular sovereignty. This invocation of the ‘constitutional conscience or will of the people’ resonates with Article 7, which vests all power in the people, but also raises enduring questions about the limits of judicial reliance on political context. While constitutional interpretation must remain responsive to social realities, it must also maintain doctrinal discipline to avoid being swayed by transient political currents.
A notable feature of the judgement is its reliance on the doctrine of prospective overruling, previously recognised in Bangladesh in cases such as the 5th amendment litigation (Bangladesh Italian Marble Works Ltd v government of Bangladesh, 62 DLR (AD) (2010) 298). By deferring the immediate operationalisation of the restored Thirteenth Amendment, the court attempts to balance constitutional correctness with administrative feasibility. However, the absence of clearly articulated criteria for such temporal modulation leaves doctrinal ambiguity. While Article 102 and 104 provide the Supreme Court with broad remedial powers, the lack of a structured framework for prospective overruling risks blurring the boundary between adjudication and policy-making.
The judgement may well reopen the perennial debate on separation of powers. Article 65 vests legislative authority in parliament, yet the court, exercising judicial review, has effectively reshaped the constitutional architecture of electoral governance. This raises legitimate concerns about judicial overreach. At the same time, the decision can be read as an assertion of the judiciary’s role as guardian of the constitution, particularly where the democratic process itself is perceived to be under strain. The tension between judicial activism and institutional restraint is not unique to Bangladesh; it echoes debates in jurisdictions such as India and Pakistan, where courts have similarly intervened in electoral and constitutional crises.
The positive implications of the judgement are tremendously significant. It restores a mechanism that many see as essential for ensuring electoral credibility in a deeply polarised political environment. It advances a more nuanced understanding of democracy, one that integrates procedural continuity with substantive legitimacy. It also demonstrates the court’s willingness to revisit and correct its own precedent, reinforcing the principle that constitutional adjudication is an evolving process rather than a static pronouncement. For a polity grappling with questions of electoral trust, it represents a form of constitutional redemption and a renewed commitment to democratic values.
Yet, the judgement is not without its challenges and risks. It leaves unresolved the complex relationship between the Thirteenth and Fifteenth Amendments, the latter having abolished the caretaker system and reasserted parliamentary supremacy. The legal status of elections conducted in the intervening period without a caretaker government remains uncertain, raising questions about retrospective legitimacy and constitutional continuity. The standard for overturning constitutional precedent is also left underdeveloped, potentially opening the door to future instability in constitutional interpretation.
Moreover, the expansion of the basic structure doctrine into a tool of constitutional reconstruction rather than merely invalidation marks a significant and largely unprecedented development in South Asian jurisprudence. While this enhances judicial flexibility, it also raises concerns about the limits of judicial power. Is the caretaker government now to be regarded as part of the immutable basic structure, or is it a context-specific safeguard justified by Bangladesh’s unique political conditions? The judgement does not provide a definitive answer, leaving this question to future litigation and scholarly debate.
The decision also underscores the continuing tension between constitutional idealism and political pragmatism. While the court aspires to create conditions for credible elections, the long-term sustainability of democratic governance ultimately depends on the maturation of political institutions, including an independent Election Commission under Article 118, a professional civil service, and a culture of constitutional compliance among political actors. Judicial intervention, however well-intentioned, cannot substitute for institutional reform.
The 2025 review judgement thus stands as both a moment of constitutional optimism and a source of doctrinal uncertainty. It affirms that democracy in Bangladesh must be understood not merely as a formal arrangement of elected offices but as a system grounded in trust, participation and electoral integrity. At the same time, it exposes the challenges of navigating constitutional change in a politically contested environment, where legal principles, historical experience and democratic aspirations intersect.
As Bangladesh moves forward, the true test of this judgement will lie in its implementation and its reception by other constitutional actors. Whether it fosters democratic renewal or invites further contestation will depend on how its unresolved questions are addressed through future judicial decisions, legislative action and political practice. What is clear, however, is that the constitution of Bangladesh, rooted in Article 7, 11, 31 and 32 and the broader framework of fundamental rights and governance, is once again in motion, evolving through a dynamic interplay of doctrine, necessity and the enduring aspirations of its people.
Barrister Md Anwar Hossen is an advocate of the Supreme Court of Bangladesh.
