'Fraud on Constitution': Petitioner's counsel urges Appellate Division to scrap 15th Amendment

Advocate Sharif Bhuiyan, the lawyer representing the writ petitioners challenging parts of the Constitution's 15th Amendment, told the Appellate Division today (7 July) that the amendment amounted to a "fraud" on the Constitution and should be struck down in its entirety.

He made the submission during the hearing of appeals against a High Court verdict that declared several provisions introduced through the 15th Amendment, including the abolition of the caretaker government system, invalid.

The hearing was conducted before the Appellate Division led by the chief justice. Attorney General Barrister Md Ruhul Quddus Kazal represented the state.

The apex court fixed tomorrow (8 July) for the next hearing.

Speaking to journalists after the hearing, Sharif Bhuiyan said the 15th Amendment had effectively rewritten the Constitution and altered its character.

"Through this, the character of the Constitution of Bangladesh has been altered. This is a type of fraud with the Constitution," he said.

He argued that the amendment should be scrapped to prevent similar changes in the future and to protect democratic principles.

However, Sharif said certain provisions introduced through the amendment should remain in force to avoid a legal vacuum.

He noted that the High Court had not struck down the entire amendment and that submissions had been made before the Appellate Division seeking its complete annulment.

According to him, one of the key concerns relates to the Supreme Judicial Council, which oversees inquiries into allegations of misconduct by Supreme Court judges and other constitutional officeholders.

He said the council had originally been incorporated into the Constitution through a military decree and later became part of the Constitution through the Fifth Amendment.

After the Appellate Division declared the Fifth Amendment illegal, the provision lost its constitutional basis and was later reintroduced through the 15th Amendment.

Sharif argued that if the 15th Amendment were struck down in its entirety, the mechanism for judicial accountability would cease to exist until Parliament enacted a replacement.

He said a plea had therefore been made to retain Article 96, which provides for the Supreme Judicial Council, as well as the changes made to Article 102 concerning writ petitions, while declaring the remaining provisions unconstitutional.

On 17 December 2024, the High Court, disposing of a writ petition filed by Badiul Alam Majumdar, secretary of Shushashoner Jonno Nagorik (SHUJAN), and others, declared parts of the 15th Amendment invalid.

The petitioners later appealed against the verdict.

The 15th Amendment, enacted in 2011, introduced additions, modifications and substitutions in 55 areas of the Constitution.

In its verdict, the High Court declared Sections 20 and 21 of the amendment, which abolished the non-party caretaker government system, unconstitutional and void.

The court also declared Articles 7A, 7B and 44(2), which were inserted through the amendment, invalid.

In its observations, the High Court said the amendment had politicised the election system and undermined the constitutional principles of democracy and the sovereignty of the people.

The court, however, did not strike down the entire amendment and said the remaining provisions could be amended, modified or changed by a future parliament in accordance with the law and after taking public opinion into account.

Following the verdict, the petitioners appealed, seeking the complete annulment of the 15th Amendment.

Separate appeals were also filed by BNP Secretary General Mirza Fakhrul Islam Alamgir and Jamaat-e-Islami Secretary General Mia Golam Parwar, both of whom became parties to the case.

The hearings on the three appeals are currently being conducted together.