Bangladesh now has one idea for election-time governance running on three tracks. The High Court has ruled that the 15th Amendment's abolition of the caretaker system violated the basic structure and revived both referendums and the possibility of a neutral election-time government, in effect reopening the constitution's Chapter IIA that parliament had deleted in 2011. Its December 2024 judgment (full verdict published in July 2025) struck down the provisions that abolished the caretaker system and removed the referendum mechanism. The National Consensus Commission's July National Charter 2025 also offers a political blueprint for that system. Meanwhile, the Appellate Division, reviewing the 13th Amendment case of Abdul Mannan Khan v Bangladesh, has restored the 13th Amendment and branded the 2011 judgment of then Chief Justice ABM Khairul Haque as "tainted," while keeping the next election under the Professor Yunus-led interim government and reserving the caretaker for future polls.
Whether these tracks ultimately align or pull against one another is a core constitutional question.
The starting point of this tension lies in the 2011 verdict. In the original 13th Amendment case, the Appellate Division, led by Chief Justice Khairul Haque, declared the caretaker system inconsistent with democracy, yet allowed two more elections under it through prospective overruling. The then parliament treated that short order as a green light and rushed through the 15th Amendment, abolishing the caretaker provisions and referendums. That sequence enabled three contested elections in 2014, 2018, and 2024, which the High Court now openly links to the July 2024 uprising and the collapse of the Awami regime.
That said, the High Court's December 2024 judgment on the 15th Amendment did more than reopen the door to a caretaker government and restore referendums. It held that the abolition of the caretaker model undermined democracy, free and fair elections, judicial independence, and popular sovereignty, and treated the system as part of the constitution's basic structure. It also struck down Article 7B, amongst others, which had tried to make large parts of the constitution unamendable, and revived the referendum clause in Article 142. The student-led July uprising, the interim government formed after an Article 106 reference, and the six reform commissions under the charter—all pushed in the same direction: a neutral election-time government became politically unavoidable.
The July Charter is the clearest expression of that political consensus, and its caretaker chapter departs sharply from the original 13th Amendment. Instead of automatically appointing the last retired chief justice as chief adviser, it creates a five-member selection committee drawn from the prime minister, opposition leadership, and the presiding officers of parliament. The committee would invite nominations from parties and independents, may search for its own candidates, and must agree on a chief adviser who meets the Article 58C criteria. If that process, including a second round of shortlists, still fails, the charter falls back on the 13th Amendment mechanism but bars the president from serving as chief adviser.
This entire package is what will go to referendum on the same day as the national election under the July National Charter (Constitutional Reform) Implementation Order, 2025, and the Referendum Ordinance, 2025. The question for voters is whether they endorse the inclusion of the July charter in the constitution. It is a blunt instrument. Citizens cannot support term limits, a bicameral legislature, or stronger rights while rejecting this particular caretaker architecture. Nor can they choose between the charter model and whatever institutional design the Appellate Division ultimately reads into the revived 13th Amendment when its full judgment appears. The referendum will generate a single political mandate for the charter; the court is simultaneously generating a judicial mandate for a specific reading of Chapter IIA.
The new Appellate Division short order already signals that it will not be content with a minimalist approach. By calling the Khairul Haque judgment "tainted" and setting it aside "in its entirety," the court has effectively endorsed the High Court's core premise that the caretaker system is compatible with, and possibly required by, the basic structure. It has also chosen to restore Chapter IIA prospectively only, keeping the coming election under the interim government and reserving the caretaker model for the 14th parliament. That sequencing shows a court that views itself as managing the transition rather than simply cleaning up an old doctrinal mistake. A court that sees its role this way is unlikely to avoid saying something about the composition and appointment of the future caretaker government.
This is where the discomfort becomes doctrinal. If the full judgment treats the detailed 13th Amendment model as part of the basic structure, any attempt to constitutionalise the July charter's selection committee will face a basic structure challenge. Parliament cannot use Article 142, even with a referendum, to amend what the court has held to be the basic structure. Yet the charter's drafters have tried to anchor their model in the 13th Amendment by borrowing its eligibility criteria and writing in a last-resort default to the original mechanism. Each side will claim to be the defender of the 13th Amendment's spirit rather than its saboteur.
The two projects, however, do not have to collide. Legally, there are at least two ways to avoid a clash. The Appellate Division could use the full judgment to identify only the core features of the caretaker system as basic structure—neutrality, a limited non-legislative mandate, and a 90-day time limit with a narrow extension—while leaving appointment of the chief adviser to politics. That would provide parliament and the referendum space to adopt the July charter's committee-based model. Alternatively, the caretaker provisions of the charter could first be implemented through ordinary constitutional law operating "subject to the 13th Amendment," treating the charter as a political code of practice rather than an immediate textual rewrite of Chapter IIA.
Politically, Bangladesh is now running two projects of constitutional legitimacy. One is led by judges trying to undo the damage of an earlier court and a discredited partisan decade. The other is driven by a fragile multi-party compromise embodied in the July charter and about to be tested in a binary referendum. Unless the interim government, the main parties, and the court treat both the charter and the forthcoming judgment as starting points, rather than sacred texts, the country risks moving from one era of constitutional conflict into another. After years of arguing over whether there should be a caretaker government at all, we may now be heading for a second argument over which caretaker government the constitution will actually permit.
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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