A reversal process triggered by the August uprising now restores the controversially scrapped constitutional provision of non-party caretaker government for holding elections in Bangladesh.
Also reinstated in the constitution is referendum on issues like fundamental changes to the national constitution -- a must-have now as a constitution commission is 'rewriting' the constitution on the cusp of transition from the deposed regime of Awami League.
Also underway forging national consensus by a proposed National Consensus Commission headed by the head of the interim government, Prof Yunus, himself.
The changes are coming with Tuesday's High Court verdict partly repealing the 15th Constitution Amendment that was done in a way that stoked contentions and bred a grave political crisis through botched elections, petitioners said.
An HC bench comprising Justice Farah Mahbub and Justice Debasish Roy Chowdhury scrapped the major provisions of 15th amendment of the constitution in response to petitions challenging "legality of the constitutionality" of the amendment that scrapped the non-party caretaker government system.
The court observed that this amendment "destroyed the basic structure of the Constitution" and also contradictory to the short verdict of the Appellate Division regarding the 13th amendment.
Besides, it also restored the previous form of Article 142 of the Constitution asking for a referendum for bringing change in the basic structure of the Constitution.
The High Court also declared void and ultra vires to the Constitution Article 7A, 7B and 44(2) incorporated into the charter by the 15th Amendment Act.
The Article 7A provides that if any person, by show of force or use of force or by any other un-constitutional means suspends or repeals this Constitution or any of its article, his such "act shall be sedition and such person shall be guilty of sedition and he shall be sentenced with the highest punishment prescribed for other offences by the existing laws".
The High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict after disposing of two writ petitions filed challenging the legality of 15 Constitutional amendments. The court also declared the rules issued in this regard as absolute in part.
The High Court decision has paved the way for the return of the Non-Party Caretaker Government system in the constitution, said the lawyers concerned.
The court said, "A total of 54 changes were brought through the 15th Constitutional Amendment, but we are not declaring void those as a whole."
The court upheld the provisions of Supreme Judicial Council (SJC) amended by the 15th Amendment Act.
As a writ case is pending before the High Court division regarding the Article 116 of the Constitution, which one was also amended by the 15th amendment, the High Court skipped it, also reads the verdict.
It didn't interfere with the other provisions of the Act giving an observation that the next successive parliament will take decision whether they will bring any change there.
The court said Sections 20 and 21 of the 15th Constitutional Amendment Act 2011 repealed Article 58A of the Constitution holding the Caretaker Government system. This amendment "destroyed the basic structure of the Constitution, i.e. democracy". As a result, these two sections are declared void as they are "unconstitutional".
In its observations, the High Court says the core of the Constitution lies in democracy, which can only be ensured through free, fair and credible elections.
It adds that the Caretaker Government system, introduced on political consensus, by way of ensuring credible elections had become an essential component of the Constitution's basic framework.
"The beauty of the Constitution lies in empowering the people. The people are the source of all power," the court notes in its judgment, reinforcing the necessity of a mechanism to preserve democratic values.
The High Court reiterates that the abolition of the caretaker government system disrupted the nation's democratic structure, as it was originally enacted to ensure impartial elections and foster political stability.
In the judgment, the court says the provision of referendum was repealed, which was part of Article 142 of the Constitution. It was added through the 12th amendment in 1991. Section 47 of the 15th Amendment Act that abolished the provision of referendum under Article 142 of the Constitution has been declared void as it is "inconsistent with the basic structure of the Constitution". As a result, Article 142 of the 12th amendment has been reinstated.
Article 7A describes the Constitutional provisions of sedition and 7B describes inability of the house of parliament to amend some provisions of the Constitution by any means. The court rules these two Articles are directly contradictory to the Article 7 of the Constitution.
According to the Article 44(2) "Without prejudice to the powers of the High Court Division under article 102, Parliament may by law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers." The High Court scrapped the amendment.
Attorney-General Md Asaduzzaman said Caretaker Government system is legal as per the High Court decision.
Dr Sharif Bhuiyan, lawyer for petitioners Dr Badiul Alam Majumder and others, said, "We cannot say that the Caretaker system has already been restored as a petition is pending before the Appellate Division seeking review of the Supreme Court verdict declaring the Caretaker Government system illegal."
Earlier on December 5, the bench fixed December 17 as the date for delivering judgment after concluding hearings on the petitions. The court had heard arguments on the petitions for 12 working days.
One of the writ petitions was filed by Mofazzal Hossain, a freedom fighter from Narayanpara, Naogaon.
The HC bench led by Justice Farah Mahbub on October 19 issued a rule asking the government to explain as to why the Constitution (15th Amendment) Act 2011 should not be declared unconstitutional. It also questioned as to why actions taken under the amendment should not be invalidated.
Earlier on August 19, another HC bench led by Justice Naima Haider, who is currently on leave, issued a similar rule following another writ petition filed by five citizens.
The petitioners include Dr Badiul Alam Majumdar, secretary of Shushashoner Jonno Nagorik, along with Dr Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan, and Zahrah Rahman.
Parliament passed the 15th constitutional amendment on June 30 in 2011 and the President assented to the bill on July 3 that year.
The then Awami League government scrapped Caretaker Government system through the amendment and gave constitutional recognition to Sheikh Mujibur Rahman as father of the nation.
The amendment also increased reserved women seats in parliament from 45 to 50. It also restored secularism and freedom of religion and incorporated nationalism, socialism, democracy and secularism as the fundamental principles of the state policy.
During the hearings, Attorney-General Md Asaduzzaman and Deputy Attorney- General Md Asad Uddin represented the state.
Senior lawyer Dr Sharif Bhuiyan argued on behalf of the petitioners, including Dr Badiul Alam Majumdar of SHUJAN, while BNP's counsel included senior lawyers Zainul Abedin, Barrister Kayser Kamal, Barrister Ruhul Quddus Kajol, and Advocate Farzana Sharmin Putul. Jamaat-e-Islami was represented by Advocate Mohammad Shishir Manir and Barrister Ehsan A Siddique, while Advocate Ishrat Hasan spoke Insaniyat Biplob.
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