Court corridor
Pursuit of a democratic and secular constitution
Samiul Hashim
THE Fifth Amendment passed in 1979 gave constitutional legitimacy to the governments came after the 1975 assassination of the country's founding President Bangabandhu Sheikh Mujibur Rahman. The Fifth Amendment had allowed the religion-based political parties and added the Arabic 'Bismillah-ar-Rahman-ar-Rahim' or in the name of God, the most merciful, benevolent in the preamble of the Constitution.
Fifth Amendment of the constitution was done to accommodate the constitution to give validity to the unlawful taking over of State power after killing of father of the nation Bangabandhu. Fifth Amendment issue arose when the petition regarding ownership of Moon Cinema Hall in Wise Ghat in the capital Dhaka, was filed in the High Court challenging the legality of the Martial Law Regulation of 1977. On 29 August 2005, High Court Division declared Fifth Amendment illegal following that petition
Further, on 2 February 2010, the Appellate Division (hereinafter AD) rejected two separate petitions namely C.P. Nos. 1044 & 1045 of 2009 (5th Amendment), which was filed against a judgment of High Court that declared the Fifth Amendment illegal. The detail judgment with modifications was published 27 July 2010, seventy four days after passing the verdict.
The six-member full bench of the AD, headed by former Chief Justice Mohammed Tafazzul Islam, along with Mr. Justice Mohammad Fazlul Karim, Mr. Justice Md. Abdul Matin, Mr. Justice Bijan Kumar Das, Mr. Justice Md. Muzammel Hossain, Mr. Justice Surendra Kumar Sinha, passed the judgment with modifications.
AD had upheld the High Court verdict. The AD also emphasizes on punishing and taking pre causations to prevent further any further infringement of the Constitution in future. There are some imperative facts of the Judgment which may satisfy many curious minds, as they follow:
(i) Supreme Court declared the fifth Constitutional amendment illegal which had allowed religion-based political parities to flourish in the country. Therefore it will lay concrete on the way for the government to ban Islamic groups. Though, main portion of the verdict makes no reference to use of religion for political purposes,
(ii) Martial law was declared illegal.
(iii) The expressions in the original 1972 constitution, "a historic struggle for national liberation" would substitute the expression "a historic war for national independence", inserted by the 5th Amendment.
(iv) Nationalism would remain 'Bangladeshi'.
(v) It upheld the decision that taking over of State power by Khandaker Mushtaque Ahmed, Abu Sa'dat Mohammad Sayem and Maj Gen Ziaur Rahman from August 15, 1975 to April 9, 1979, was illegal and unconstitutional. However, it exempted certain measures and administrative works of those regimes initiated for public welfare. Other than this, all the changes in government from August 15, 1975 right up to the national elections of 1991 were unconstitutional.
(vi) It upheld the decision of High Court in going back to four principal policy of state by 1972 constitution e.g. Democracy, Nationalism, Secularism and Socialism. AD made no further modification as to this, so the constitution can go back to it former position.
(vii) It did not modify the changes brought by the Fifth Amendment of appointing High Court Judges. So it remains the same i.e. the President will only have the power to appoint the Chief Justice and he can appoint the other justices of the High Court by consulting the Chief Justices.
(viii) AD also upheld the provision by Fifth Amendment of forming Supreme Judicial Council in case of any expulsion of Justices of the Supreme Court.
AD approved the judgment of the High Court Division subject to certain modifications. All the findings and observations in respect of Article 150 (Emergency period) and the Fourth Schedule in the judgment of the High Court Division are hereby expunged, and the validation of Article 95 is not approved. In respect of condonation made by the High Court Division, the following modification is made and condonations are made as under:
(a) all executive acts, things and deeds done and actions taken during the period from 15th August 1975 to 9th April, 1979 which are past and closed;
(b) the actions not derogatory to the rights of the citizens;
(c) all acts during that period which tend to advance or promote the welfare of the people;
(d) all routine works done during the above period which even the lawful government could have done.
(e) (i) the Proclamation dated 8th November, 1975 so far it relates to omitting Part VIA of the Constitution;
(ii) the Proclamations (Amendment) Order 1977 (Proclamations Order No. 1 of 1977) relating to Article 6 of the Constitution.
(iii) the Second Proclamation (Seventh Amendment) Order, 1976 (Second Proclamation Order No. IV of 1976) and the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) so far it relates to amendment of English text of Article 44 of the Constitution;
(iv) the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No.IV of 1978) so far it relates to substituting Bengali text of Article 44;
(v) The Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) so far it relates to inserting Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e provisions relating to Supreme Judicial Council and also clause (1) of Article 102 of the Constitution, and (f) all acts and legislative measures which are in accordance with, or could have been made under the original Constitution.
The constitution's amendment has become a necessity. It seems that pursuit of a democratic and secular constitution for the long ravaged country is becoming an imperative. It is hoped that the country is not to be intruded by any person further to vindicate personal gain.
The writer is a Barrister and an Associate at A Hossain & Associates.
