Leave hearing against HC judgment on fifth amendment begins
Intervener’s counsel challenges HC jurisdiction in outlawing constitutional amendment
Dhaka, Jan 19 (UNB)-Senior advocate TH Khan Tuesday challenged the jurisdiction of the High Court in declaring illegal and void the Constitution Fifth Amendment brought through martial-law proclamations following the August 15 changeover.
Making his argument for leave to appeal against the impugned High Court judgment, he submitted that the High Court under its writ jurisdiction cannot set aside an Act of Parliament--the fifth amendment that ratified usurpation of state power by junta--and make amendment to the Constitution on its own choice.
Khan said, “The powers of the High Court are not boundless; it can issue certain orders and directions but cannot promise the moon.”
To underpin his contentions, the veteran lawyer referred to article 102 of the Constitution (writ jurisdiction of the High Court division).
“It is only the Parliament elected by the people has given power how to amend any provision of the Constitution, the supreme law of the Republic,” he contended.
Citing the article 142 of the Constitution, Khan said Parliament has the authority to amend any provision by way of addition, alteration, substitution or repeal by act of parliament.
Advocate Khan, the counsel for intervener in the case and BNP secretary-general Khandaker Delwar Hossain, further submitted that in 1980 the Appellate Division of the Supreme Court in resolving a case had legalized martial law proclamations, regulations, and orders.
Since the judgment of the Appellate Division is binding on the High Court division as per article 111 of the Constitution, the High Court had no authority to entertain the writ petition by issuing a rule and later deliver the judgment invalidating the fifth amendment of the Constitution.
In a crucial ruling on August 29, 2005 upon a writ petition, the High Court declared illegal the Constitution Fifth Amendment that had endorsed usurpation of power in a row by Khandaker Mushtaque Ahmed, Justice AM Sayem and Maj General Ziaur Rahman since the August 15, 1975 changeover till April 9, 1979.
The hearings remained inconclusive before a six-member Appellate Division bench, headed by Chief Justice M Tafazzul Islam.
Another identical petition filed by three lawyers as interveners in the case will be heard analogous.
The hearing spell resumes Thursday, court sources said.
