The Appellate Division’s July 9 order upholding the High Court’s partial invalidation of the 15th Amendment is a constitutional correction of enormous consequence. It restores the non-party caretaker government and referendum provisions, although the court’s full reasons are still awaited. Bangladesh now knows that an impartial election-time government is again constitutionally necessary. However, it still doesn’t know who will head it, how that person will be chosen, or what will prevent the selection process itself from being captured.
The High Court’s judgment, issued in December 2024, shows why this cannot safely be left to ordinary parliamentary arithmetic. In pages 21 and 22 of the full text of the verdict released last year, it records that before the 15th Amendment was passed in 2011, a special parliamentary committee consulted 104 distinguished citizens and initially reached a consensus in favour of retaining the caretaker government system. A unanimous recommendation in this regard was finalised on May 29, 2011. However, when the committee leaders met the then prime minister, the recommendation was reversed. The bill was then scrutinised for only four days and passed in parliament without debate. Clearly, this was not constitutional deliberation but rather executive command dressed as parliamentary amendment.
That history is not merely an indictment of the then-ruling Awami League; it’s also an institutional warning for every governing party. The BNP now has 209 seats—212 along with the allies—giving it a commanding two-thirds majority in parliament. The point here is, a democratic mandate to govern is not a licence to write the rules of one’s own departure, and while the identity of the majority has changed since the 2026 election, the underlying conflict of interest has not.
The High Court, in pages 74 and 75, held that democracy and free and fair elections are inseparable, and that the caretaker government system became part of the basic structure because it gave practical effect to the people’s will. In pages 76 and 77, it connected the system’s abolition with the collapse of public confidence in the elections of 2014, 2018 and 2024, before declaring sections 20 and 21 of the 15th Amendment void. That conclusion was repeated in the operative order in Page 137.
The 13th Amendment review judgment supplied the deeper rule. In pages 44 to 46, the Appellate Division described parliament’s power under Article 142 as a fiduciary trust and held that parliament acts unconstitutionally when it dismantles an institutional safeguard indispensable to representative democracy. This principle must govern not just caretaker abolition but also its redesign. A parliament cannot formally retain a caretaker government while constructing a selection process that allows the governing majority to control it. That would achieve indirectly what the basic structure doctrine prohibits directly.
The old model cannot simply be restored without scrutiny either. Page 26 of the review judgment records the demonstrable risk that making a retired chief justice eligible to become the chief adviser could influence serving judges and weaken judicial independence. Page 27 distinguishes the protected principle of neutral interim government from the mutable form of the 13th Amendment, including its composition and procedure. In Page 41, the court says this distinction helped fortify its own understanding. The lesson is clear: neutrality is constitutionally protected. So the retired chief justice succession ladder is not sacred.
The review judgment also states in pages 62 and 63 that the restored provisions will remain dormant until the dissolution of the present parliament. That provides a window for designing a durable system. But it does not justify postponing the issue until the eve of the next election, when every institutional choice could again be viewed through the lens of immediate partisan advantage.
Arguably, it would therefore be dangerously inadequate for the Supreme Court merely to say that parliament may decide the rest, and the interim-time National Consensus Commission process demonstrates why. Political parties then reached agreement on many reforms but remained divided over the legal status of the July Charter, the timing of a referendum, the use of a constitutional order, and the composition of an upper house. Dialogue remains essential, but unanimity cannot be made a condition for democratic survival. A constitution must therefore contain a lawful answer for the moment when politicians don’t agree.
In the full judgment, the Appellate Division is possibly not going to select the chief adviser by name or write an entire electoral code. It may, however, consider declaring a binding constitutional floor: no outgoing government, parliamentary majority, president, party leader or single constitutional officeholder should have unilateral or decisive control over the appointment.
Serving judges and recently retired judges should be kept outside political succession, a possibility that may require cautious consideration. Conversely, the 13th Amendment model regarding the chief adviser’s selection provides valuable insights, which should not be disregarded in its entirety. In addition, candidates should face strict disqualification for recent party office, electoral candidacy, ministerial position, major state contracts, and undisclosed conflicts of interest. Nominations, assets, objections and reasons for selection should be public. The process should require meaningful participation from government and opposition, but it must also contain an automatic fallback from a previously vetted roster so that disagreement cannot lead to constitutional paralysis. The caretaker government’s tenure must remain short, its functions routine, and any extension or exceptional decision immediately reviewable.
Article 104 of the constitution gives the Appellate Division power to issue directions necessary for complete justice. Complete justice cannot mean reviving the institution while leaving a potential point of capture unaddressed. Any judicial directions should be expressly temporary, transparent and limited to constitutional safeguards until a valid amendment is adopted. If the court considers the pending appeals to be an insufficient vehicle for detailed directions, the president should invoke Article 106 and refer precise questions about the chief adviser’s selection, judicial independence, and a deadlock mechanism to the Appellate Division. Such a reference should be heard openly, with political parties, the Election Commission, the bar, and civil society represented.
The final settlement also requires a democratic double lock. In pages 85 and 86 of the 15th Amendment judgment, the High Court restored Article 142 as introduced by the 12th Amendment, including referendum protection for specified constitutional changes. Parliament should now amend Article 142 to place Article 58(B to E) within that protected category and include the redesigned caretaker government framework in the same amendment bill. Because the bill would amend Article 142 itself, it would have to be referred to the people. A referendum should not be treated as curing a design that violates the court-declared constitutional floor, but it can prevent a two-thirds majority from claiming exclusive ownership of the settlement.
Some may call this judicial overreach. But the greater overreach is allowing an interested majority to appoint the referee for the election in which that majority’s power is at stake. The disaster of 2011 was produced by judicial error followed by legislative opportunism—Bangladesh should not answer it by granting absolute trust to either institution. The court should define the limits, parliament should draft within them, people should ratify the settlement, and an automatic fallback should defeat any deadlock. A caretaker government exists because political competitors cannot credibly referee their own contest; it would be absurd to let the winner alone choose the referee.
Barrister Khan Khalid Adnan is advocate at the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates in Dhaka.
Views expressed in this article are the author's own.
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