Courtesy: The Daily Star, Dhaka,
http:/Thursday, July 29, 2010
Military takeover never again
SC judgment makes democracy sacrosanct, restores secular spirit of '72 constitution; says JS to decide on nationalism, but the word 'Bangladeshi' should stay in 'wider public interest'
Julfikar Ali Manik and Ashutosh Sarkar
The Supreme Court in its judgment on the fifth amendment to the constitution paved the way for preventing military takeover in future and restoring secular spirit of the original constitution except for a few changes.
Islam, however, shall remain the state religion as per the eighth amendment, which is not covered by the judgment.
The SC released the full text (184 pages) of its judgment on Tuesday, around six months after it upheld the High Court verdict declaring illegal the fifth amendment.
The fifth amendment had legitimised the governments and military rule since killing of then president Bangabandhu Sheikh Mujibur Rahman on August 15, 1975, to April 9, 1979. The governments during the period were led by Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Major General Ziaur Rahman.
The apex court vehemently denounced military rule and suspension of the constitution by martial law proclamation.
"We are putting on record our total disapproval of martial law and suspension of the constitution or any part thereof in any form,” said the six-member bench headed by then chief justice Md Tafazzul Islam said in the landmark judgment. (See accompanying story).
It also said, "Preamble and the relevant provisions of the Constitution in respect of secularism, nationalism and socialism, as existed on August 15, 1975, will revive."
It observed that the martial law 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 the Article 8(1) of the Constitution”.
Ziaur Rahman had brought in the fifth amendment to ratify the fundamental changes made to the constitution after the assassination of Bangabandhu.
He had omitted article 12, which prohibited religion-based politics and communalism in all forms. The SC judgment reinstates that article.
Of the four fundamental principles, secularism and socialism had been replaced with “absolute trust and faith in the Almighty Allah and socialism meaning economic and social justice”.
Though Zia kept the other two principles--"democracy" and "nationalism”--he omitted article 9 which defined nationalism as "Bangalee Nationalism."
Then in article 6, he had included the line “The citizens of Bangladesh shall be known as Bangladeshis” in place of "The citizens of Bangladesh shall be known as Bangalee".
About nationalism, the top court said since it is a political issue, “parliament is to take decision in this regard”.
It however retained article 6, citing wider public interest.
Attorney General Mahbubey Alam told The Daily Star the SC verdict means now there is no legal bar to getting back to the fundamental principles of the original constitution except nationalism.
He said the words Bismillah-Ar-Rahman-Ar-Rahim will continue to be in the preamble to the constitution, as the court did not say anything in that regard.
Besides, he reasoned, the words are in the preamble, not in the main part of the constitution.
Replying to a query, he said there's no way the fourth amendment, which had introduced one-party system BAKSAL, will return as the 12th amendment has already dispensed with that amendment.
Asked if the words "Islam as state religion" contradict secularism, Law Minister Shafique Ahmed yesterday said those too might be struck out if anybody challenges the eighth amendment in the HC.
Former military strongman HM Ershad added the eighth amendment to the constitution in 1988.
Queried if parliament can get rid of that, he said parliament can do it, but it better be done through the apex court.
The Supreme Court judgment came on February 2 this year in response to two petitions for permission to contest the HC verdict.
Of the petitions, one was filed by BNP Secretary General Khandaker Delwar Hossain and the other by three SC lawyers--Tajul Islam, Kamruzzaman Bhuiyan and Munshi Ahsan Kabir--on May 25 last year.
The HC delivered its watershed verdict on August 29, 2005, following a writ petition.
Masudul Alam on behalf of Bangladesh Italian Marble Works Company (BIMWC) filed the petition to reclaim a cinema hall the company lost during the military rule.
The SC has made a number of observations and a few modifications to the HC judgment.
Regarding nationalism, it said, “...though we expressed the view that [it ] 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 judgment 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 “substituted” article 6 states, “The citizens of Bangladesh shall be known as Bangladeshis”.
The SC condoned some actions of the martial law administrations saying that “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; 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.”
It said, “We emphasise each of our generation must be taught, educated and informed about those dark days: the easiest way of doing this is to recognise our errors of the past and reflect this sentiments in our judgment. This will ensure that the sovereignty of 'we, the people of Bangladesh' is preserved forever as a 'pole star'.
“We are of the view that in the spirit of the Preamble and also Article 7 of the Constitution the Military Rule, direct or indirect, is to be shunned once for all.
"Let it be made clear that Military Rule was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever as the same is against the dignity, honour and glory of the nation that it achieved after great sacrifice.”
The judgment continued, "It is against the dignity and honour of the people of Bangladesh who are committed to uphold the sovereignty and integrity of the nation by all means.
"It is also against the honour of each and every soldier of the Armed Forces who are oath bound to bear true faith and allegiance to Bangladesh and uphold the Constitution which embodies the will of the people, honestly and faithfully to serve Bangladesh in their respective services and also see that the Constitution is upheld, it is not kept in suspension, abrogated, it is not subverted, it is not mutilated, and to say the least it is not held in abeyance and it is not amended by any authority not competent to do so under the Constitution."