Appellate Division
Badiul Alam Mojumder and others v Abdul Mannan Khan and others
Civil Appeal 112/2025 · Appeals allowed; review petitions disposed of · Decided 20 November 2025
Civil appeals and connected review petitions, brought by Badiul Alam Mojumder and others, the Secretary General of the Bangladesh Nationalist Party, the Secretary General of Bangladesh Jamaat-e-Islami and others, challenged the Appellate Division's majority judgment of 10.5.2011 in Civil Appeal No. 139 of 2005, which had declared the Constitution (Thirteenth Amendment) Act, 1996 unconstitutional and ended the Non-Party Caretaker Government system. The Attorney-General also urged review. A seven-judge bench unanimously allowed the appeals and set the 2011 judgment aside in its entirety. The Court found errors apparent on the face of the record, including the departure of the full judgment published in 2012 from the short order of 2011, which had allowed the next two elections under a caretaker system, contrary to Order X rule 2 of the Appellate Division Rules. It held that the caretaker system reinforced democracy, a basic structure, and reflected the people's constituent power. Chapter IIA was automatically revived but can operate only prospectively, at the earliest after dissolution of the 13th Parliament.
- Whether the 2011 majority judgment in Civil Appeal No. 139 of 2005, which struck down the Thirteenth Amendment, suffered from errors apparent on the face of the record warranting review.
- Whether the Non-Party Caretaker Government system introduced by the Thirteenth Amendment damaged or reinforced the basic structure of the Constitution.
- What effect setting aside the 2011 judgment has on the caretaker government provisions of Chapter IIA, and when they can operate.
- The judgment under review was tainted by several errors apparent on the face of the record and was set aside in its entirety.
- Once a short order is pronounced, Order X rule 2 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 restricts the Court from deviating substantially from it, and the full judgment's departure from the 2011 short order was fatal to its legality, integrity and constitutionality.
- A provision introduced by amendment may become part of the basic structure if it operates as a cardinal safeguard or indispensable support to a pre-existing basic feature, and the validity of an amendment is tested substantively by its effect on the basic structure.
- The Non-Party Caretaker Government system strengthened democracy, a basic structure, and evolved into a basic feature of the Constitution; the 2011 majority erred in not applying the impact test.
- The amending power under Article 142 is a fiduciary trust delegated by the people, not original constituent power, and the Thirteenth Amendment was an expression of the people's constituent power.
- Chapter IIA (Articles 58B to 58E) was automatically restored, but because Articles 58B(1) and 58C(2) tie its operation to the dissolution of Parliament, it can be invoked at the earliest under the 13th Parliament and operates only prospectively.
auto-restoration of the non-party care-taker government mechanism will take place forthwith, but such auto-restored provisions cannot be triggered readily, hence, the restored provisions shall lie dormant until enabling circumstances as specified in the restored provisions themselves come into play.
