New Age, Dhaka, July 29, 2010
5th AMENDMENT JUDGEMENT
Some provisions upheld
The Appellate Division of the Supreme Court on Tuesday released its judgement declaring finally the fifth amendment to the constitution illegal but upholding some of its provisions including Bangladeshi citizenship and Supreme Judicial Council.
The judgement also said Bengali nationalism, as it was in the constitution on adoption in 1972, would be restored.
The judgement was released and posted on the Supreme Court’s web site after the six Appellate Division judges, led by former chief justice Tafazzul Islam, had finalised it at a meeting Tuesday evening.
The six-member full Appellate Division bench delivered the order on the February 2 judgement upholding with modifications the High Court verdict that had declared illegal the fifth amendment to the constitution brought about through martial law proclamations after the August 15, 1975 changeover.
The judgement was released on Tuesday, two days before the first meeting scheduled for today of the special parliamentary committee to recommend amendment to the constitution in line of the judgement.
The highest court concluded its 184-page judgement saying, ‘Let us bid farewell to all kinds of extra-constitutional adventures forever.’
It disapproved the martial law and suspension of the constitution or any part thereof in any form.
‘The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their constitution, their government, established by them with their consent,’ the judgement said.
‘However’, the court contended, ‘it is the parliament which can make law in this regard.’
The High Court, in its verdict, condoned the amendments to some of the articles of the constitution and all acts and things done and actions and proceedings taken during the period between August 15, 1975 and April 9, 1979, as past and closed transactions.
The Appellate Division modified the condonations and finally condoned all executive acts, things and deeds done and actions taken during the period between August 15, 1975 and April 9, 1979 which are past and closed, the actions not derogatory to the rights of the citizens, all acts during that period which tend to advance or promote the welfare of the people, all routine works done during the above period which even the lawful government could have done, the amendment to Part VIA of the constitution and Article 6, 44, 96 and 102 of the constitution, and all acts and legislative measures which are in accordance with, or could have been made under the constitution as it was on adoption in 1972.
The High Court had ordered revival of Article 6 of the constitution framed in 1972 that said, ‘Citizenship of Bangladesh shall be determined and regulated by law; citizens of Bangladesh shall be known as Bangalees.’
The Appellate Division, however, ordered retention of the existing Article 6, as amended by the fifth amendment, which said, ‘6(1) The citizenship of Bangladesh shall be determined and regulated by law. (2) The citizens of Bangladesh shall be known as Bangladeshis.’
The Appellate Division judgement said, ‘Regarding nationalism though we expressed the view that being political issue, parliament is to take decision in this regard, but if in place of “Bangladeshi” the word ‘Bangalee’ is substituted in terms of the judgement and order of the High Court Division, then all passports, identity cards, nationality certificates issued by the government and other prescribed authorities, certificates issued by educational institutions, visa forms and other related documents of the government will have to be changed, reprinted or reissued. Moreover, the Bangladeshi nationals who will return to Bangladesh as well as those travelling abroad will also face serious complications with the immigration authorities abroad. Apart from the above and other hackles and harassments, this change of the nationality would also cost millions from the public exchequer. So for wider public interest the substituted Article 6 is to be retained.’
The Appellate Division, however, did not condone the amendment to original Article 9, meaning that the original Article 9 would be restored in accordance with the High Court verdict.
The original Article 9 reads, ‘The unity and solidarity of the Bangalee nation, which, deriving its identity from its language and culture, attained sovereign and independent Bangladesh through a united and determined struggle in the war of independence, shall be the basis of Banglaee nationalism.’
Neither the High Court nor the Appellate Division condoned the amendment to Article 8(1), meaning the restoration of the original Article 8(1) that said, ‘The principles of nationalism, socialism, democracy and secularism, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy.’
The amendment Article says, ‘(1) The principles of absolute trust and faith in the almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy. (1A) Absolute trust and faith in the Almighty Allah shall be the basis of all actions.’
Regarding secularism, the Appellate Division said, ‘... it is very clear that the Proclamations, by omitting secularism, one of the state policy from the constitution, destroyed one of the basis of our struggle for freedom and also changed the basic character of the republic as enshrined in the Preamble as well as in Article 8(1) of the constitution.’
It further observed, ‘From the contents of the proceeding of the constitutional assembly it appears that for days elaborate discussion was made in respect of secularism, nationalism and socialism and then those were incorporated at Chapter II of our constitution which contained the fundamental principles of state policy.’
The court ordered restoration of original Article 12, omitted by the fifth amendment.
Original Article 12 said, ‘The principle of secularism shall be realized by the examination of — (a) communalism in all its forms; (b) the granting by the state of political status in favour of any religion; (c) the abuse of religion for political purposes; any discrimination against, or persecution of, persons practicing a particular religion.’
The High Court, however, had observed, ‘The words, commas and brackets “Bismillah-Ar-Rahman-Ar-Rahim (In the name of Allah, the Beneficent, the Merciful)” were inserted before the word “Preamble”.’
The Appellate Division only mentioned the High Court’s observation, but made no comment, meaning that ‘Bismillah-Ar-Rahman-Ar-Rahim’ would be retained.
Besides, Article 2A inserted by the eighth amendment recognises Islam as the state religion.
According to the judgement, all religion-based political parties have to be banned.
The court ordered restoration of the original proviso of Article 38, omitted by the fifth amendment.
The proviso says, ‘Provided that no person shall have the right to form, or be a member or otherwise taken part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.’
Regarding secularism and socialism, the Appellate Division observed, ‘... omission of secularism and substitution of Articles 6 and 10 by the authorities not competent to promulgate / make those and by those Orders Constitution was also changed in the manner not prescribed by the Constitution and accordingly those Orders are illegal, void and non est, Preamble and the relevant provisions of the Constitution in respect of secularism, nationalism and socialism, as existed on August 15, 1975, will revive.’
The court ordered restoration of original Article 10 that said, ‘A socialist economic system shall be established with a view to ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man.
The fifth amendment substituted a new Article 10 for the original one. The amended article says, ‘Steps shall be taken to ensure participation of women in al spheres of national life.’
The Appellate Division ordered restoration of original Article 95 that said, ‘The Chief Justice of the Supreme Court shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.’
The High Court had ordered retention of Article 95 as amended by Second Proclamation Order IV of 1976 making similar provisions, which as amended by the fourth amendment giving the sole authority to the president for appointment of all judges. The article was, however, amended by the fifth amendment making similar provision made by the fourth amendment.
Regarding the independence of the judiciary, the Appellate Division also ordered retention of Article 44, 96 and 102.
It observed, ‘... Partial restoration of the independence of judiciary (Article 95 and 116) as made by the Second Proclamation (Seventh Amendment) Order 1976. Independence of judiciary was curtailed by the Fourth Amendment. Restoration of the jurisdiction of the High Court Division to enforce fundamental rights as was provided in original Article 44 and 102 of the Constitution. The same was made by the Second Proclamation (Seventh Amendment) Order 1976. Insertion of the provision of Supreme Judicial Council in respect of security of tenure of the judges of the Supreme Court (Article 96).’
According to the judgement, no referendum will require for bringing about amendment to any provision of the constitution, as it ordered restoration of the original Article 142 dropping the provisions inserted into the article by the fifth amendment for a referendum for amendment to some of the constitutional provisions.
The Appellate Division, in the judgment, dismissed the two petitions, filed by the Bangladesh Nationalist Party secretary general Khandaker Delwar Hossain and three Supreme Court lawyers, seeking permission to appeal against the High Court verdict.
The High Court bench of Justice ABM Khairul Huq and Justice ATM Fazley Kabir on August 29, 2005 delivered the verdict declaring illegal and void the fifth amendment and the martial law regulations issued between August 15, 1975 and April 1979.
The High Court had delivered the verdict after hearing a writ petition filed by the Bangladesh Italian Marble Works Limited managing director, Maqsudul Alam, over a dispute over the Moon Cinema Hall at Wise Ghat in Old Town of Dhaka.
The Bangladesh Nationalist Party’s secretary general Khandaker Delwar Hossain and three Supreme Court lawyers — Munshi Ahsan Kabir, Tajul Islam and Kamruzzaman Bhuiyan — filed two provisional petitions on May 3, 2009 as the present government quit the legal battle against the High Court verdict, accepting it.
The Appellate Division on May 4, 2009 allowed Delwar and the three lawyers to file regular petitions seeking permission to appeal against the High Court verdict.