Authored By: Dipa Saha Priya
University of Rajshahi
Case Name:
Dr Badiul Alam Mojumder and Others v Abdul Mannan Khan and Others; Mirza Fakrul Islam Alamgir v Abdul Mannan Khan and Others
Citation:
Civil Appeal No 112 of 2025; Civil Appeal No 113 of 2025; with Civil Review Petition Nos 282 of 2024, 313 of 2024 and 248 of 2025 (Appellate Division, Supreme Court of Bangladesh, 20 November 2025)
Court:
Supreme Court of Bangladesh, Appellate Division
Subject Matter:
Review of the constitutionality of the 13th Amendment and restoration of the Non-Party Caretaker Government (NPCG) system
Bench:
Syed Refaat Ahmed CJ, Md Ashfaqul Islam J, Zubayer Rahman Chowdhury J, Md Rezaul Haque J, S M Emdadul Hoque J, A K M Asaduzzaman J and Farah Mahbub J
Author Judge:
Syed Refaat Ahmed CJ
Other Opinions:
Md Ashfaqul Islam J, Zubayer Rahman Chowdhury J, Md Rezaul Haque J, S M Emdadul Hoque J, A K M Asaduzzaman J and Farah Mahbub J concurred with the leading judgment
1.Introduction:
Historians say that Alexander the Great severed the intricate Gordian Knot with a single stroke of his sword. In Bangladesh’s constitutional history, the Thirteenth Amendment was such a knot; law, politics, justice, and public trust were so tightly intertwined that no simple solution remained. The 2011 judgment did not resolve that crisis; instead, it gave rise to a new controversy. It is against that backdrop that the 2025 review judgment emerges as a significant constitutional reconsideration. Here, the Court did not merely assess the validity of an amendment; it sought to rethink the relationship between the democratic structure of the state, the electorate’s confidence, and the living spirit of the Constitution. Thus, the case ultimately rests on a fundamental question: is the true foundation of democracy merely the constitutional continuity of power, or is it the assurance of free and credible expression by the people?
2. Procedural History, and Constitutional Significance:
The constitutional debate surrounding the Thirteenth Amendment arose from Bangladesh’s history of political instability and electoral distrust. The Court viewed the Amendment as a constitutional response to political crisis. The 1990 mass uprising, the fall of the Ershad regime, and the caretaker administration under Justice Shahabuddin Ahmed gave the concept political legitimacy, later constitutionalized through Articles 58B–58E in 1996.
The case originated from Civil Appeal No. 139 of 2005 and Civil Petition for Leave to Appeal No. 596 of 2005. In 2011, the Appellate Division declared the Thirteenth Amendment unconstitutional, while the Fifteenth Amendment later abolished the caretaker system. In 2025, multiple review petitions challenged the earlier ruling for failing to adequately consider political reality and the constitutional significance of free and fair elections.
The Court held that the caretaker system was intended to ensure free and fair elections and prevent abuse of state power. Distinguishing “Formal Democratic Legality” from “Substantive Democratic Constitutionalism,” the Bench emphasized electoral credibility and public trust as essential to democracy.
The ruling described democracy as a “living constitutional practice” and observed that “western models of democracy do not permit of transplantation simpliciter.” It further remarked that the 2011 judgment, in seeking “judicial sanction of a democratic utopia,” had contributed to “dystopian electoral politics.”
3.Short Facts:
For decades, Bangladesh experienced political tension over the neutrality of its electoral system. Following the 1990 mass uprising, the experience of an ad hoc caretaker arrangement led to the incorporation of the Non-Party Caretaker Government system into the Constitution through the Thirteenth Amendment in 1996. Elections held in 1996, 2001, and 2008 under this arrangement were regarded as comparatively more credible and publicly acceptable.
However, in 2011, the Appellate Division of the Supreme Court declared the Thirteenth Amendment unconstitutional, and the caretaker system was later abolished through the Fifteenth Amendment. In response, review petitions and civil appeals were filed in 2025, arguing that the earlier judgment had failed to adequately appreciate the political reality of the country and the necessity of free and fair elections.
The central issue, therefore, was whether a system that had restored public confidence in the electoral process could legitimately be declared unconstitutional within the framework of democratic constitutionalism.
Detailed Facts: Chronological Narrative of Events
4. Detailed Facts
4.1. Political Crisis and Deadlock
The disputed elections of 1973, 1986, and 1988 intensified demands for a neutral caretaker arrangement. Political confrontation during 1991–1996 further renewed such demands, alongside the proposed “Ishtiaq Formula.”
4.2. Interim Legitimacy
Following Ershad’s fall, the interim administration under Justice Shahabuddin Ahmed gained broad public acceptance.
4.3. The Thirteenth Amendment and Institutional Acceptance
In 1996, Articles 58B–58E constitutionally established the caretaker system. The elections of 1996, 2001, and 2008 under caretaker governments gained wider public acceptance.
4.4. The 2011 Judgment and Present Review
The 2011 judgment declared the caretaker system unconstitutional, later abolished through the Fifteenth Amendment, leading to the 2025 review proceedings.
5.Issues of Law:
The case raised broader questions concerning democracy, popular sovereignty, and constitutional interpretation.
Validity of the Non-Party Caretaker Government under the Basic Structure doctrine.
Compatibility of a temporary unelected arrangement with popular sovereignty, republican democracy, and representative government.
Extent to which free and fair elections constitute part of the Basic Structure.
Applicability of review jurisdiction in cases involving “error apparent on the face of the record.”
Constitutional effect of the inconsistency between the short order and the detailed judgment.
Distinction between constituent power and Parliament’s amendment power under Article 142.
Constitutional legitimacy of an amendment adopted through national consensus.
Status of democracy-preserving amendments within the Basic Structure doctrine
Scope of judicial review concerning abuse of constitutional mechanisms.
Nature of the Constitution as a static document or a living constitutional instrument.
Judicial limits in constitutional interpretation and political adjudication.
Impact of the 2011 judgment and the Fifteenth Amendment on Bangladesh’s substantive democratic order.
6. Relevant Constitutional and Statutory Provisions
ed the caretaker government to routine administration and election facilitation.
Article 142: Parliament’s amendment power and its distinction from constituent power.
Article 105: Review jurisdiction of the Supreme Court, broadly interpreted in cases involving constitutional or jurisprudential error.
Order X, Rule 2 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988: Relied upon to challenge inconsistencies between the short order and detailed judgment.
Basic Structure Doctrine: The Constitution’s fundamental structure cannot be altered; the Court observed that democracy-preserving amendments may themselves become part of the Basic Structure.
Social Contract Theory, Constituent Power Theory, and Living Constitution Theory: The Constitution was interpreted as a living constitutional compact capable of adapting to political and democratic evolution.
The Court notably observed:
“An amendment enacted to preserve or strengthen a basic feature may itself become part of the Basic Structure.”
7. Arguments Presented Before the Court:
The case involved significant jurisprudential debates concerning constitutionalism, constituent power, popular sovereignty, and democracy. Dr Sharif Bhuiya described the Constitution as “a living democratic instrument” and defended the caretaker system as a mechanism for ensuring electoral neutrality.
Senior Advocate Ehsan A Siddiq distinguished constituent power from ordinary amendment power and argued that the Thirteenth Amendment was a sovereign constitutional response grounded in national consensus. His notable proposition was:
“An amendment enacted to preserve democracy may itself become part of the Basic Structure.”
Shishir Monir questioned the inconsistency between the short order and the full judgment, while other counsel emphasized constituent legitimacy, constitutional convention, and the limited role of the caretaker government.
The State portrayed the Constitution as a “living instrument” and “social contract,” arguing that abolishing the caretaker system disrupted constitutional continuity. It further contended that the Thirteenth Amendment was a democratic safeguard whose validity required consideration of its practical political consequences.
8.Court’s Reasoning and Analysis
The core significance of the ruling lay in its constitutional realism, where substantive democracy was prioritized over rigid legal formalism. The Bench criticized the earlier majority view for treating democracy as an abstract ideal detached from Bangladesh’s political realities, describing it as “constitutional utopianism.” It observed that the caretaker framework emerged from public distrust surrounding election-time neutrality and reflected a broader social compact between the people and the state.
The Court further held that without free and fair elections, democracy risks becoming merely formal, remarking that:
“Outer constitutional form and inner democratic legitimacy are not always identical.”
The ruling distinguished constituent power from ordinary amendment power, treating Article 142 as a derived authority while recognizing constituent power as the original sovereign authority of the people. As the Court stated:
“The constituent power of the people does not vanish upon the adoption of the Constitution; it remains dormant within the sovereign polity.”
The impugned amendment was therefore viewed not as a mere textual alteration, but as a constitutional response grounded in national consensus.
The judgment also reinterpreted the basic structure doctrine as a principle of constitutional preservation rather than rigid limitation, declaring:
“An amendment enacted to preserve or strengthen a basic feature may itself become part of the Basic Structure.”
The Bench further observed that the earlier judgment failed to adequately consider the practical political consequences of abolishing the caretaker system, particularly its impact on electoral trust and democratic legitimacy. Through this reasoning, judicial self-correction was presented as a constitutional responsibility.
9.Ratio Decidendi &Obiter Dicta
9.1. Ratio Decidendi
The ruling held that free and fair elections form part of the Constitution’s Basic Structure, and that a constitutionally limited caretaker arrangement is not per se unconstitutional. The Bench treated electoral credibility, public confidence, and substantive democratic legitimacy as essential to constitutional governance.
The Court also distinguished constituent power from ordinary amendment power, observing that an amendment grounded in national consensus may attain higher constitutional legitimacy.
Most notably, the Court declared:
“An amendment enacted to preserve or strengthen a basic feature may itself become part of the Basic Structure.”
This interpretation reshaped the basic structure doctrine into a principle of constitutional preservation rather than rigid limitation.
9.2. Obiter Dicta
Chief Justice Syed Refaat Ahmed criticized “constitutional utopianism,” observing that democracy evolves through historical experience and institutional adaptation.
The Constitution was described as a “living instrument” and “social compact,” requiring constitutional interpretation to remain connected to political reality and democratic aspiration.
The ruling further suggested that dissenting opinions may later evolve into authoritative constitutional wisdom through political and constitutional experience.
10.Final Judgment / Decision
After extensive hearings and constitutional debate, the Appellate Division reconsidered the core reasoning of the 2011 majority judgment. The dment of 1996 emerged from Bangladesh’s political turmoil, electoral distrust, and democratic struggle. It was not merely a constitutional insertion, but a constitutional assurance of free elections rooted in national consensus. When the arrangement was declared unconstitutional in 2011, Bangladesh’s democracy entered into a tension between judicial idealism and political reality. The 2025 review decision therefore stands as an important constitutional course correction. Under Chief Justice Syed Refaat Ahmed, the Appellate Division reaffirmed that popular sovereignty lies not merely in holding elections, but in ensuring their credibility.
The greatest strength of the ruling lies in its constitutional realism. Unlike the 2011 judgment, which prioritized procedural legality, the present Bench emphasized substantive democratic legitimacy and recognized that without free and fair elections, constitutional democracy risks becoming mere formalism.
Particularly significant was the observation that the “outer form” of democracy and its “inner legitimacy” are not identical. If the electoral structure fails to command public confidence, formal electoral continuity alone cannot sustain democracy. Likewise, the proposition that “An amendment enacted to preserve or strengthen a basic feature may itself become part of the Basic Structure” adds a significant doctrinal dimension to Bangladesh’s constitutional jurisprudence.
11.Critical Analysis and Personal Evaluation
“Salus Populi Est Suprema Lex” — the welfare of the people is the supreme law.The Thirteenth Amendment emerged from Bangladesh’s democratic struggle and electoral distrust. Its invalidation in 2011 created tension between judicial idealism and political reality, prompting the 2025 constitutional correction.
From a personal evaluative perspective, the constituent power argument advanced by Senior Advocate Ehsan A Siddiq and the constitutional realism reflected in Chief Justice Syed Refaat Ahmed’s reasoning appeared especially persuasive. Siddiq’s distinction between ordinary amendment power and constituent power, and his characterization of the Thirteenth Amendment as a constitutional response grounded in national consensus, strongly reflects Bangladesh’s political reality. Similarly, the Chief Justice’s observation that democracy is not a mechanically transplantable western formula, but an organic constitutional process shaped through historical experience and institutional adaptation, elevates the judgment to a broader constitutional philosophy.
To me, the most powerful line in the decision was: “The Constitution is not a suicide pact.” It reflects the principle that no constitutional interpretation can be accepted if it ultimately weakens democracy itself.
However, the ruling is not free from criticism. The expansive interpretation of constituent power may create risks of judicial subjectivity and judicial overreach. Concepts such as “national consensus” or the “sovereign will of the people” do not always possess precise constitutional boundaries, and excessive constitutional pragmatism may weaken constitutional certainty over time.
Nevertheless, the broader significance of this decision within Bangladesh’s political and electoral context remains undeniable. The ruling moves beyond rigid constitutional formalism and connects constitutional interpretation with political reality, public confidence, and democratic aspiration. It also highlights the constitutional value of minority opinions, as the dissenting reasoning of Justice Wahhab Miah and Justice Muhammad Imman Ali later gained renewed significance through constitutional evolution and political experience.
Taken together, the judgment reflects an important philosophical shift in Bangladesh’s constitutional law, where democratic legitimacy, constitutional realism, and public confidence have been given greater importance than rigid constitutional formalism. Despite possible doctrinal ambiguities, the decision will remain a transformative constitutional milestone in Bangladesh’s constitutional history.
12.Conclusion
Ultimately, this case has demonstrated that no theoretical legal interpretation can endure if it undermines popular sovereignty. The Non-Party Caretaker Government system was not merely a political formula; rather, it was a profound social compact born out of Bangladesh’s long democratic struggle, electoral distrust, and national consensus. The historic ruling of 2025 has, in many respects, restored the constitutional dignity of that compact.
The decision firmly establishes that free elections are not merely a component of democracy; rather, free and credible elections constitute the very existence of democracy itself. In his Politics, Aristotle observed that “The law is reason unaffected by desire.” The 2025 judgment reflects a rare synthesis of constitutional wisdom, reason, and public aspiration.
Taken together, this judgment is not merely the conclusion of a legal dispute; it is the rebirth of constitutional hope.
Reference(S):
1.Constitution of the People’s Republic of Bangladesh, arts 7, 11, 48, 58B–58E, 105 and 142.
2. Aristotle, Politics (translated edition).
3.A V Dicey, Introduction to the Study of the Law of the Constitution.
4.Md Abu Bakar Siddiq and Md Shamim Ahmed, ‘Revisiting the Constitutional and Human Rights Law Mandates for Fair Elections in Bangladesh: A Quest for Democratization’ (2026) Social Sciences & Humanities Open.
5.‘Democratic Renewal and Doctrinal Frontiers’ New Age Bangladesh (28 April 2026).
