High Court releases full verdict on restoration of referendum provision

The past three national polls have “eroded public trust” in free and fair elections, the court says in its observation

The High Court has published its full verdict declaring parts of the Fifteenth Amendment to the Constitution illegal, including the abolition of the caretaker government system and the restoration of the referendum provision.

The 139-page verdict, signed by Justice Farah Mahbub and Justice Debasish Roy Chowdhury, was released on Tuesday.

This widely-discussed verdict was delivered on Dec 17 last year, following the final hearing on two writ petitions that challenged the Fifteenth Amendment.

In its observation, the High Court said the past three parliamentary polls have “eroded public trust” in free and fair elections.

The Fifteenth Amendment, enacted in 2011, made additions, modifications, and replacements in 54 areas of the Constitution.

Among them, Sections 20 and 21 of the amendment law, which abolished the non-partisan caretaker government system, have been declared unconstitutional and void by the court.

In addition, newly inserted Articles 7(ka), 7(kha), and 44(2) have also been revoked.

Article 7(ka) criminalised the unconstitutional seizure of state power, categorising it as treason punishable by the highest penalty.

Article 7(kha) stated that the fundamental provisions of the Constitution could not be amended.

Article 44 dealt with the enforcement of fundamental rights, and Clause 44(2) allowed the parliament, without undermining the High Court’s authority under Article 102, to empower other courts to exercise such jurisdiction within their local limits.

The court said that Article 142 of the Constitution originally had provisions for referendums, which were abolished through the Fifteenth Amendment.

Section 47 of the amendment law, which removed the referendum clause, was declared “inconsistent” with the basic structure of the Constitution, and the original Article 142 from the Twelfth Amendment has been reinstated, it added.

However, the court says it is not annulling the entire Fifteenth Amendment. The remaining provisions can be revised, modified, or altered through future legislation by the parliament, based on public opinion.