HC ruling invalidating Fifth Amendment stands; 1972 constitution's revival gathers strength
SC lifts stay on scrapping the amendment that endorsed post- Aug 15 takeover
Dhaka, Jan 3 UNB)-The historic judgment declaring the Fifth Amendment to the Constitution illegal stands effective as the apex court Sunday vacated its order of stay on the High Court verdict, meaning the revival of the fundamentals of the 1972 Constitution.
Legal experts say the lifting of the stay restores the Preamble, Articles 6 (citizenship), 8 (fundamental principles), 9 (promotion of local government institutions), 10 (participation of women in national life), 12 (secularism and freedom of religion), 25 (promotion of international peace, security and solidarity), 38 (freedom of association) and 142 (power to amend any provision of the Constitution) as stipulated in the original 1972 Constitution of the country.
The High Court in its judgment stated that the aforesaid provisions remain as it was in the original Constitution of 1972. Besides, Article 95, as amended by the Second Proclamation Order of 1976, is declared valid and retained, it said.
A five-member bench of the Appellate Division of the Supreme Court passed the order while allowing a pending government plea for withdrawing the leave to appeal against the High Court verdict on the fifth amendment of the Constitution.
The apex court, upon time petitions moved by TH Khan, the counsel for BNP Secretary-General Khandaker Delwar Hossain, and Moudud Ahmed, the counsel for three pro-Jamaat-e-Islami lawyers who became interveners in the case, adjourned the hearing on their applications for leave to appeal against the High Court verdict until January 18.
In an instant reaction over the Supreme Court orders, Barrister M Amir-Ul Islam, one of the framers of the Constitution, told UNB that following the withdrawal of the main appeal by the government as well as the Muktijoddha Kalyan Trust and the vacation of the order of stay, the leave petitions which are not yet filed became “merely an academic exercise”.
“The High Court judgment on the fifth amendment case now remains operative and effective following the vacation of the stay order,” he said.
Another senior advocate, Anisul Huq, said whatever happened on the basis of the fifth amendment now stands “null and void”.
But, he observed, those amendments which are not directly related or dependent upon the fifth amendment remained valid.
Earlier, advocate TH Khan raised the question of the constitution of the bench comprising five members instead of seven.
In reply clarifying the matter, Chief Justice M Tafazzul Islam, who heads the bench, said the bench was reconstituted as the two other judges would go abroad for treatment.
Advocate Khan further raised another question as to how the SC chamber judge earlier had fixed January 3 for hearing the leave-to-appeal applications along with the stay-vacating petition without intimating him.
“The matter is dubious,” Khan told the court and alleged that it was done by the government by “creating pressure on the judge”.
Interrupting TH Khan, Barrister Ajmalul Hossain denied the allegation and said that on instruction of his client he usually went to the chamber court and moved his stay-vacating petition after serving notice to the government.
Attorney-General Mahbubey Alam also opposed the contentions raised by TH Khan and prayed for dismissing the government petition for leave to appeal as being “not pressed”.
On Aug 29 in 2005, the High Court declared the fifth amendment to the constitution “illegal”, meaning the regimes of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem, and Maj General Ziaur Rahman since the August 15, 1975 changeover till April 9, 1979 were unlawful.
The verdict came upon a writ petition filed by Bangladesh Italian Marble Works Ltd company that had challenged the Martial Law Regulation (MLR) 7 of 1977 issued to legalize all extra-constitutional acts of the martial law governments prior to
that time.
In the verdict the HC ruled that martial law as a whole is illegal and unconstitutional and all the actions, laws, and rules made under martial law illegal. “The changes of government between August 15, 1975 and before the national elections of 1991 were not carried out constitutionally.”
The High Court bench of Justice ABM Khairul Haque and Justice ATM Fazle Kabir also said the Constitution does not permit anyone to assume power by any means other than the ones mentioned in it [constitution]. “If anyone does so, it will amount to sedition.”
The court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, the history cannot be altered.
“Many of these illegal acts were done in the public interest. From this perspective, the court condones some of these actions that could have been done in line with the constitution,” said the landmark judgment.
Legal experts say the lifting of the stay restores the Preamble, Articles 6 (citizenship), 8 (fundamental principles), 9 (promotion of local government institutions), 10 (participation of women in national life), 12 (secularism and freedom of religion), 25 (promotion of international peace, security and solidarity), 38 (freedom of association) and 142 (power to amend any provision of the Constitution) as stipulated in the original 1972 Constitution of the country.
The High Court in its judgment stated that the aforesaid provisions remain as it was in the original Constitution of 1972. Besides, Article 95, as amended by the Second Proclamation Order of 1976, is declared valid and retained, it said.
A five-member bench of the Appellate Division of the Supreme Court passed the order while allowing a pending government plea for withdrawing the leave to appeal against the High Court verdict on the fifth amendment of the Constitution.
The apex court, upon time petitions moved by TH Khan, the counsel for BNP Secretary-General Khandaker Delwar Hossain, and Moudud Ahmed, the counsel for three pro-Jamaat-e-Islami lawyers who became interveners in the case, adjourned the hearing on their applications for leave to appeal against the High Court verdict until January 18.
In an instant reaction over the Supreme Court orders, Barrister M Amir-Ul Islam, one of the framers of the Constitution, told UNB that following the withdrawal of the main appeal by the government as well as the Muktijoddha Kalyan Trust and the vacation of the order of stay, the leave petitions which are not yet filed became “merely an academic exercise”.
“The High Court judgment on the fifth amendment case now remains operative and effective following the vacation of the stay order,” he said.
Another senior advocate, Anisul Huq, said whatever happened on the basis of the fifth amendment now stands “null and void”.
But, he observed, those amendments which are not directly related or dependent upon the fifth amendment remained valid.
Earlier, advocate TH Khan raised the question of the constitution of the bench comprising five members instead of seven.
In reply clarifying the matter, Chief Justice M Tafazzul Islam, who heads the bench, said the bench was reconstituted as the two other judges would go abroad for treatment.
Advocate Khan further raised another question as to how the SC chamber judge earlier had fixed January 3 for hearing the leave-to-appeal applications along with the stay-vacating petition without intimating him.
“The matter is dubious,” Khan told the court and alleged that it was done by the government by “creating pressure on the judge”.
Interrupting TH Khan, Barrister Ajmalul Hossain denied the allegation and said that on instruction of his client he usually went to the chamber court and moved his stay-vacating petition after serving notice to the government.
Attorney-General Mahbubey Alam also opposed the contentions raised by TH Khan and prayed for dismissing the government petition for leave to appeal as being “not pressed”.
On Aug 29 in 2005, the High Court declared the fifth amendment to the constitution “illegal”, meaning the regimes of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem, and Maj General Ziaur Rahman since the August 15, 1975 changeover till April 9, 1979 were unlawful.
The verdict came upon a writ petition filed by Bangladesh Italian Marble Works Ltd company that had challenged the Martial Law Regulation (MLR) 7 of 1977 issued to legalize all extra-constitutional acts of the martial law governments prior to
that time.
In the verdict the HC ruled that martial law as a whole is illegal and unconstitutional and all the actions, laws, and rules made under martial law illegal. “The changes of government between August 15, 1975 and before the national elections of 1991 were not carried out constitutionally.”
The High Court bench of Justice ABM Khairul Haque and Justice ATM Fazle Kabir also said the Constitution does not permit anyone to assume power by any means other than the ones mentioned in it [constitution]. “If anyone does so, it will amount to sedition.”
The court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, the history cannot be altered.
“Many of these illegal acts were done in the public interest. From this perspective, the court condones some of these actions that could have been done in line with the constitution,” said the landmark judgment.
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