(The writer was a third year law student of Dhaka University)
Judgment of Bangladesh Italian Marble Works Limited vs. Government of Bangladesh case threatens the constitutional, political and social order of the country. In the 2000, the owner of the Moon Cinema Hall filed a writ petition under Article 102 of the Constitution (WRIT PETITION NO. 6016 OF 2000) claiming that the declaration of Moon Cinema Hall as an abandoned property was unlawful and sought a direction upon the government to hand over the physical possession of the premises known as Moon Cinema Hall at 11, Wiseghat, Dhaka to their original owners. In that writ petition, the petitioners challenged the constitutionality of the Fifth Amendment Act by which various proclamations of the Martial Law were condoned by Parliament in April 6, 1979. By a Judgment and Order dated 29th August 2005, a division bench of the High Court Division constituued by Mr. Justice A.B.M. Khairul Haque And Mr. Justice A.T.M. Fazle Kabir declared the Fifth Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.
On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Awami League came to power in January 2009 and on an application made by the new Government on 3rd January 2010, the Government’s appeal was withdrawn and the stay granted has been vacated. Realizing that the new Government would withdraw its appeal, earlier on two applications were filed: one by the Secretary General of BNP, and another by three advocates of the Supreme Court of Bangladesh, which sought to challenge the judgment passed by the High Court declaring the Fifth Amendment void. These two applications have come up in the list of the Supreme Court on 18th January 2010 for hearing. And now the appeal hearing is going on.
Some key orders of the Judgment:
- The taking over of the powers of the Government of the People’s Republic of Bangladesh with effect from the morning of 15th August, 1975, by Khandaker Mushtaque Ahmed, an usurper, placing Bangladesh under Martial Law and his assumption of the office of the President of Bangladesh, were in clear violation of the Constitution, as such, illegal, without lawful authority and without jurisdiction.
- The nomination of Mr. Justice Abusadat Mohammad Sayem, as the President of Bangladesh, on November, 6, 1975, and his taking over of the Office of President of Bangladesh and his assumption of the powers of the Chief Martial Law Administrator and his appointment of the Deputy Chief Martial Law Administrators by the Proclamation issued on November 8, 1975, were all in violation of the Constitution.
- The handing over of the Office of Martial Law Administrator to Major General Ziaur Rahman B.U., PSC., by the aforesaid Justice Abusadat Mohammad Sayem, by the Third Proclamation issued on November 29, 1976, enabling the said Major General Ziaur Rahman, to exercise all the powers of the Chief Martial Law Administrator, was beyond the ambit of the Constitution.
- The nomination of Major General Ziaur Rahman, B.U., to become the President of Bangladesh by Justice Abusadat Mohammad Sayem, the assumption of office of the President of Bangladesh by Major General Ziaur Rahman, B.U., were without lawful authority and without jurisdiction.
- The Referendum Order, 1977 (Martial Law Order No. 1 of 1977), published in Bangladesh Gazette On 1st May, 1977, is unknown to the Constitution, being made only to ascertain the confidence of the people of Bangladesh in one person, namely, Major General Ziaur Rahman, B.U.
- All Proclamations, Martial Law Regulations and Martial Law Orders made during the period from August 15, 1975 to April 9, 1979, were illegal, void and non est because : i) Those were made by persons without lawful authority, as such, without jurisdiction, ii) The Constitution was made subordinate and subservient to those Proclamations, Martial Law Regulations and Martial Law Orders, iii) Those provisions disgraced the Constitution which is the embodiment of the will of the people of Bangladesh, as such, disgraced the people of Bangladesh also, iv) From August 15, 1975 to April 7, 1979, Bangladesh was ruled not by the representatives of the people but by the usurpers and dictators, as such, during the said period the people and their country, the Republic of Bangladesh, lost its sovereign republic character and was under the subjugation of the dictators, v) From November 1975 to March, 1979, Bangladesh was without any Parliament and was ruled by the dictators, as such, lost its democratic character for the said period. vi) The Proclamations etc., destroyed the basic character of the Constitution, such as, change of the secular character, negation of Bangalee nationalism, negation of Rule of law, ouster of the jurisdiction of Court, denial of those constitute seditious offence.
- As such, all acts and things done and actions and proceedings taken during the period from August 15, 1975 to April 9, 1979, are condoned as past and closed transactions, but such condonations are made not because those are legal but only in the interest of the Republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.
- Condonations of provisions were made, among others, in respect of provisions, deleting the various provisions of the Fourth Amendment but no condonation of the provisions was allowed in respect of omission of any provision enshrined in the original Constitution. The Preamble, Article 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condonation is allowed in respect of change of any of these provisions of the Constitution.
Analysis of the Judgment:
This is for the second time, the Court declared the Amendment to the Constitution passed by the Parliament as void. First one is the Eighth Amendment case (Anowar Hossain Chowdhury Vs. Bangladesh). The Court declared its judgment on the basis of some principles like-Doctrine of unconstitutionality, doctrine of basic structure of the state, principle of judicial review, principle of taking oath of the Justices under Constitution. There are different of opinions among the Judges of this sub-continent regarding those doctrines and principles. Even in the judgment of Fifth Amendment case, there are many contradicting and paradoxical opinion; some of those are:
- In many points of judgment, the learned judges compared the Fifth Amendment to the constitution with the original Constitution of Bangladesh. But the Fifth Amendment was not made directly from the original constitution. A series of Amendments have been made before it. The basement of the Fifth Amendment was surely the Fourth Amendment. By the Fourth Amendment, the structure of the Constitution, state, politics; all were destroyed. But in the anywhere of judgment, it is absent.
- The case is a writ petition which is recognized by the Article 102 and 44 of the Constitution. By the Fourth Amendment, both Articles were deleted. In 1976, the then President Justice Sayeem restored Article 102 and 44. If it would not restore; the present case can never be filed. So without declaring the Fourth amendment as void; the declaration of Fifth Amendment as void will create constitutional crisis and hegemony. And all the writ petitions filed in the last 31 years and all judgments and orders made become automatically unconstitutional. Those crucial questions were not discussed in the judgment.
- Though the Court mentioned about undemocratic features of the Fourth Amendment; but it’s was not in the hands of Court to declare Fourth Amendment void. Because of three reasons: there wasn’t any suit regarding the Fourth Amendment, any matter of the Fourth Amendment was not an issue before the Court, and the third one is, the Fourth Amendment was passed by a sovereign Parliament by the huge support of elected representative of the people. First two reasons are satisfactory. But it was held in the Eighth Amendment case that the basic feature of the constitution can not be altered even by the Parliament; which was made by the Fourth Amendment.
- Article 95, as amended by the Second Proclamation Order No. IV of 1976, is declared valid and retained; which is paradoxical to the judgment. Because it is subject matter of Fifth Amendment.
Why Fifth Amendment?
The First Martial Law (15 August, 1975-7 April, 1979) in Bangladesh was headed by three different persons of different background, the first one is a politician (Khandaker Moshtaque Ahmed), the second a Chief Justice (Justice A. M. Sayem) and third an Army General (Major General Ziaur Rahman). The Fourth Amendment was the pillar for Fifth Amendment. The Fourth Amendment came into force on the 25th January, 1975. A new part VIA was inserted in the Constitution, providing for the formation of a National Party to the exclusion of all other parties. Bangladesh Krishak Sramik Awami League (BAKSAL) was formed in pursuance of the Constitutional provisions. All newspapers and periodicals, except a designated few lost their declaration. Besides this many other undemocratic provisions were inserted which destroyed the basic structure of the Constitution and Democracy. It is a great irony of the history that while the elected representative of the people in a democratic dispensation banned all political parties except one, it was a Judge and later a General, who restored the multi-party system. It can be said that the Fifth Amendment was an indispensable one which got it pillar by the Fourth Amendment.
Consequences:
- Second Paragraph of the Preamble: 1972 was like this-Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the constitution;
This was replaced by the Fifth Amendment as- Pledging that the high ideals of absolute trust and faith in the almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicated themselves to, and our brave martyrs to sacrifice their lives in, the war for national independence, shall be the fundamental principles of the Constitution;
If the Appellate Division of the Supreme Court upholds the judgment of the High Court Division, the earlier will be restored.
- Change of Citizenship: An anomaly which was present in the original Constitution of 1972 has been re-introduced. Under Article 6 of the 1972 Constitution, the citizens of the Bangladesh were known as Bangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The Bangalees are one such ethnic group. As such the term Bangalee as used in the Constitution had the undesired effect of prima facie excluding other ethnic groups from Bangladeshi citizenship. The Constitution (Fifth Amendment) Act, 1979 having described/defined citizens of Bangladesh as Bangladeshis and not as Bangalees does not exclude other ethnic groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division.
- Article-12 was deleted by the Fifth Amendment which will be reintroduced as like 1972 Constitution- 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.
- By operation of the original Article 38, no citizen had the right to form or take part in the activities of any organisation which has been formed on the basis of religion with a view to pursuing a political purpose. The High Court, by declaring the Fifth Amendment unlawful, has revived the old Article 38.
Original Article 38
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order:
Provided that no person shall have the right to form, or be a member or otherwise take 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.
Amended Article 38
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of public order or public health.
The judgment of Fifth Amendment case created lots of uncertainties in the politics and serious crisis in the Constitution of Bangladesh. The Constitutional smooth journey has been interrupted. Religion based political parties will be banned. Government’s some other desire may be implemented without any political hazards. The whole country is looking forward to the Appellate Division of the Supreme Court, what they decide, what they direct; can they safe our country from a haphazard situation? Let them keep on going to a smooth constitutional journey.
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