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Monday, June 13, 2011

Constitutional Amendments in Bangladesh

Parliament House (Sangsad Bhabon) of Bangladesh

The constitution of the People's Republic of Bangladesh has been adopted as the highest law of the country on 16 December, 1972 after passing it on November 4, 1972 in the Constituent Assembly of Bangladesh. After that it has been amended sixteen times. The following is a brief account of these acts and orders.

First Amendment Act:

The Constitution (First Amendment) Act 1973 was passed on 15 July 1973.

It amended Article 47 of the constitution by inserting an additional clause which allowed prosecution and punishment of any person accused of 'genocide, crimes against humanity or war crimes and other crimes under international law'.

After Article 47 it inserted a new Article 47A specifying inapplicability of certain fundamental rights in those cases.

Second Amendment Act:

The Constitution (Second Amendment) Act 1973 was passed on 22 September 1973. This act resulted in the:

(i)      Amendment of Articles 26, 63, 72 and 142 of the constitution;
(ii)    Substitution of Article 33 and
(iii)   The insertion of a new part i.e. IXA in the constitution.

Provisions were made through this amendment for the suspension of some fundamental rights of citizens in an emergency.

Third Amendment Act:

The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in changes in Article 2 of the constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh.

Fourth Amendment Act:

The Constitution (Fourth Amendment Act 1975) was passed on 25 January 1975. Amidst of the violent uprising of the so called leftist parties and the bad impact of 1974 famine, the anarchism prevailed everywhere in the country, the Awami League Government declared state of emergency in January 1974. Later it amended the constitution (4th Amendment) to control the immense political and economic crises in the country. Though they declared this act as for the short term only, it created a deep negative impact on the leadership of Sheikh Muzib and his party. Major changes were brought into the constitution by this amendment like below:

1)   The presidential form of government was introduced in place of the parliamentary system.
2)   A one-party system in place of a multi-party system was introduced.
3)   The powers of the Jatiya Sangsad (National Assembly) were curtailed.
4)   The Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights.

The fourth Amendment Act amended the articles and parts as below:

1)   The Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the constitution had been amended;
2)   It substituted Articles 44, 70, 102, 115 and 124 of the constitution;
3)   It amended part III of the constitution out of existence;
4)   It altered the Third and Fourth Schedule;
5)   It extended the term of the first Jatiya Sangsad;
6)   The fourth Amendment made the special provisions relating to the office of the president and its incumbent;
7)   It inserted a new part, i.e. part VIA in the constitution, and
8)   It inserted articles 73A and 116A in the constitution.

Fifth Amendment Act:

This Amendment Act was passed by the Jatiya Sangsad on 6 April 1979.

This Act amended the Fourth Schedule to the constitution by adding a new paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever.

Barrister  Moudud Ahmed
The cool-headed actor, all rounder in Bangladesh-Politics & principle aid to Maj. Gen. Zia and Maj. Gen. Ershad and their military regimes & the principle sculptor of 5th, 7th & 13th Amendments.

Barrister Nazmul Huda
One of the main aid to Maj. Gen. Zia & another sculptor of 5th Amendment

According to the 5th Amendment of the constitution which adopted on 6th April 1979, the major obligations had been protected as below:

1)   The Capture of power by Khandakar Mustaque Ahmad as President (15th August, 1975 - 6 November 1975) declared as legal.
2)  The appointment of Chief Justice Abu Sadat Mohammad Sayem as President (6 November, 1975 - 1977) declared as legal.
3) The post of Chief Martial Law Administrator as held by Major Gen. Ziaur Rahman (7 November 1976 - June 1978) and successive captured Presidency post of him declared as legal.
4)   Nobody would challenge the murder of Sheikh Muzibur Rahman and his family members (of 15 August 1975) and all other related killings in the court under any circumstances (Indemnity Bill).
5)   Multiparty system had been re-instead instead of one party system, like Baksal (Bangladesh Krishak Shramik Awami League).
6)  The provisions of Secularism and Socialism had been abolished from the constitution.
7) The provisions to settle the right to form political parties under the sign board of religion (Islam) like Pakistan.

HC verdict Summary on 5th Amendment Act

The High Court Division Bench (consisted with Justice Mr. A.B.M. Khairul Haque and Justice Mr. A.T.M. Fazle Kabir) declared (on 29th August 2005, against the hearing of write petition# 6016/2000) this 5th Amendment was as a total violation of the constitution and law and so it was illegal. Apart from declaring this Amendment illegal and ineffective, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between 15th August, 1975 and April 1979. The court held that usurpation of the state power through martial law proclamation, particularly by Khandaker Mustaque Ahmad, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional. The judgment as it was reported in BLT Special Issue 2006 contains 242 pages with 22 points in its operative part. The judgment was largely based on some doctrines under constitutional jurisprudence:

a)   Doctrine of illegality or unconstitutionality,
b)   Doctrine of basic structure,
c)   The power of judicial review under a written constitution (constitutional ultra vires), and
d)   Principle of oath of office under the constitution.

Apart from the scrutiny of limits of some of these doctrines, there are some jurisdictional and constitutional continuation issues which the Appellate Division should examine in detail.

The summary of the verdict are as below. The HC declared the 5th amendment as illegal and unconstitutional based on below points:

1)    On the murder of Bangabandhu Shiekh Mujibur Rahman, President of the People’s Republic of Bangladesh, on August 15, 1975, Khandaker Mushtaque Ahmed in total violation of the Constitution, illegally seized the office of President of Bangladesh, as such, he was a usurper.

2)    He had no authority to function as the President, as such, the Proclamation of Martial Law on August 20, 1975, and his tenure as the purported President for 82 (eighty-two) days was illegal.

3)    The assumption of office of a President of Bangladesh by the then Chief Justice of Bangladesh on November 6, 1975 and the assumption of powers of the Chief Martial Law Administrator by the Second Proclamation issued on November 08, 1975 was in total disregard of the Constitution.

4)    Appointment of Major General Ziaur Rahman, as the Chief Martial Administrator by the Third Proclamation issued on November 29, 1976, was made, beyond the ambit and in total disregard of the Constitution.

5)    Appointment of Major General Ziaur Rahman as the President of Bangladesh on April 21, 1977, was made in violation and in total disregard of the Constitution.

6)    As such, all the Martial Law Proclamations, Martial Law Regulations including the Martial Law Regulation No.VII of 1977 and the Martial Law Orders, were made by the usurpers of the office of President in violation and in total disregard of the Constitution, as such, illegal, void ab initio and nonest in the eye of law.

7)    Provision for amendment of the Constitution is provided for in Article 142 and can only be done in the manner provided therein but since the Fifth Amendment validated all illegal acts of the usurpers, under the clout of Martial Law, not only changing the basic structure as well as the character of the Constitution in its totality but rather, uprooted the Constitution, it was no amendment in the eye of law, but destruction of the Constitution altogether, as such, ultra vires in the Constitution. And the Rule was issued in the following terms:

The Supreme Court (the Appellate Division) upheld the HC verdict with some modifications and observations. The details of the modifications and observations of the Supreme Court as below:


The full text of the Appellate Division judgment on the 5th amendment of the Constitution on two petitions was released on July 27 2010.

The Supreme Court authorities released the copy of the judgment after the five judges’ panel lead by Retd. Justice Md. Tafazzul Islam of the apex court signed the verdict.
In the full verdict they have dismissed the leave petitions and approved the judgment of the High Court Division with some modification.

The High Court in a verdict on August 29, 2005 declared the 5th amendment illegal and unconstitutional.

The Summary of the SC Verdict on 5th Amendment

1)   Both the leave petitions are dismissed
2)   The judgment of the High Court Division is approved subject to the following modifications:
a)   All the findings and observations in respect of Article 150 and the Fourth Schedule in the judgment of the High Court Division are hereby expunged, and
b)   The validation of Article 95 is not approved.
3)   In respect of condonations made by the High Court Division, the following modifications are 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 tended 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.

Sixth Amendment Act:

The Sixth Amendment Act was enacted by the Jatiya Sangsad with a view to amending Articles 51 and 66 of the 1981 constitution.

Seventh Amendment Act:

This Act was passed on 11 November 1986. It amended Article 96 of the constitution; it also amended the Fourth Schedule to the constitution by inserting a new paragraph 19 thereto, providing among others that all proclamations, proclamation orders, Chief Martial Law Administrator's Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other laws made during the period between 24 March 1982 and 11 November 1986 (both days inclusive) had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever.

Seventh Amendment also almost repealed

The Supreme Court on Sunday (15th May 2011) declared “illegal” Ershad`s military regime up till the 1986 transition through parliamentary elections.

In doing so, the apex court upheld the HC verdict declaring illegal the 7th amendment to the constitution legitimizing the Ershad regime, with some modifications condoning the works that had gone in public interest.

“The High Court verdict said the military rule imposed by Ershad on Mar 24, 1982, all the military ordinances passed since then to Nov 11, 1986, chief military law administrator's orders, martial law order and directions were illegal.”

“It also had declared illegal the regimes of Khondker Moshtaq Ahmed, Abu Sa'adat Mohammad Sayem and Ziaur Rahman between Aug 15, 1975 and 1979.”

A six-member bench of the Appellate Division, headed by Chief Justice ABM Khairul Haque, pronounced the verdict, virtually driving the last nail into the covers of legitimacy to military rules since 15 August, 1975 changeover brought through a bloody coup.

The apex court in its verdict declared “illegal” and “void” the paragraph 19 in the Fourth Schedule of the Constitution which has been used as the safeguard for the Martial Law regime.

“All the proclamations, Martial Law Regulations and Martial Law Orders promulgated during the period of March 24, 1982 and the date (November 11, 1986) of commencement of the Constitution (Seventh Amendment) Act 1986 are hereby declared illegal and void ab initio,” says the abridged version of the verdict.

But the AD provisionally condoned all acts, things, deeds, transactions which are “past and closed”.

The court in its verdict also condoned all international treaties made during the time.

At the same time, the SC exonerated the appeal petitioner, Siddique Ahmed, from his conviction and life-term imprisonment given by the Martial Law court during the Ershad regime.

The conviction stands “illegal and void”, the apex court gave the ruling and granted bail to the lifer, under its inherent power, till the commencement of trial in the normal court of law concerned.

But the case has to be continued in the concerned court from the stage it was transferred to the Special Martial Law Court.

But another petition of Siddique Ahmed for the cancellation of the case was rejected as “misconceived”.

In an instant reaction, petitioner’s lawyer Barrister Hasan MS Azim told journalists that the SC verdict “erased the history of military rule from the constitution and blocked the way of military takeover in the future”.

Attorney-General Mahbubey Alam in his reaction to the journalists said, “The Appellate Division has given verdict on the amendment like the one given on the Fifth Amendment. It has affirmed the High Court verdict which has declared the 7th amendment illegal.”

Replying to a question about any punitive measure against Ershad, the chief government law officer said it would be possible to make comment after publication of the full verdict of the AD.

About the future of the verdicts which indirectly legalized Martial Law he said, “I hope the Appellate Division will review these verdicts in the complete verdict.”

Earlier on May 10, the Appellate Division kept the appeal as “case awaiting verdict’ for hearing.

Syed Amirul Islam and Hasan MS Azim participated in the hearing on behalf of the petitioner. Attorney-General Mahbubey Alam moved for the state.

Earlier on May 8, the Appellate Division appointed Barrister Rafiq-ul Haque, former Attorney-General Mahmudul Islam and Barrister Ajmalul Hossain QC as Amicus Curiae (friend of court) to give opinions during hearing.

On August 26, 2010, the High Court declared illegal the seventh constitutional amendment that had legalized former army chief HM Ershad’s takeover and his military rule, moving further forward the current work on rewriting the national constitution.

The 7th amendment ratified the proclamation of martial law and other regulations, orders and instructions by General Ershad between March 24, 1982 and November 11, 1986, the time when transition to civilian rule began through parliament elections.

Following the verdict, on April 11, Siddque Ahmed filed civil appeal against some parts of the verdict that include imprisonment of the petitioner of the case during the Ershad regime.

Eighth Amendment Act:

This Amendment Act was passed on 7 June 1988. It amended Articles 2, 3, 5, 30 and 100 of the constitution.

This Amendment Act:

i)     Declared ‘islam’ as the state religion;
ii)    Decentralized the judiciary by setting up six permanent benches of the High Court Division outside Dhaka;
iii)   Amended the word 'Bengali' into 'Bangla' and 'Dacca' into 'Dhaka' in Article 5 of the constitution;
iv)   Amended Article 30 of the constitution by prohibiting acceptance of any title, honours, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the president.

It may be noted here that the Supreme Court subsequently declared the amendment of Article 100 unconstitutional since it had altered the basic structure of the constitution.

Ninth Amendment Act:

The Constitution (Ninth Amendment) Act 1989 was passed in July 1989.

This amendment provided for the direct election of the vice-president; it restricted a person in holding the office of the president for two consecutive terms of five years each; it also provided that a vice-president might be appointed in case of a vacancy, but the appointment must be approved by the Jatiya Sangsad.

Tenth Amendment Act:

The Tenth Amendment Act was enacted on 12 June 1990. It amended, among others, Article 65 of the constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad.

Eleventh Amendment Act:

This Act was passed on 6 August 1991.

It amended the Fourth Schedule to the constitution by adding a new paragraph 21 thereto which legalized the appointment and oath of shahabuddin ahmed, Chief Justice of Bangladesh, as the vice-president of the Republic and the resignation tendered to him on 6 December 1990 by the then President hussain m ershad.

This Act ratified, confirmed and validated all powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the vice-president as acting president during the period between 6 December 1990 and the day (9 October 1991) of taking over the office of the president by the new President abdur rahman biswas, duly elected under the amended provisions of the constitution.

The Act also confirmed and made possible the return of Vice-president Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh.

Twelfth Amendment Act:

This Amendment Act, known as the most important landmark in the history of constitutional development in Bangladesh, was passed on 6 August 1991.

It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142.

Through this amendment:

a)   The parliamentary form of government was re-introduced in Bangladesh;
b)   The president became the constitutional head of the state;
c)   The prime minister became the executive head;
d)   The cabinet headed by the prime minister became responsible to the Jatiya Sangsad;
e)   The post of the vice-president was abolished;
f)    The president was required to be elected by the members of the Jatiya Sangsad.

Moreover, through Article 59 of the constitution this act ensured the participation of the people's representatives in local government bodies, thus stabilizing the base of democracy in the country.

Thirteenth Amendment Act:

The Constitution (Thirteenth Amendment) Act 1996 was passed on 26 March 1996 in the so called Parliament. This parliament was actually elected in a fake (voter-less) election of February 1996, arranged by the BNP-Government.

It provided for a non-party caretaker government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad peacefully, fairly and impartially. The non-party caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the president and would stand dissolved on the date on which the prime minister entered upon his office after the constitution of the new Sangsad.

Supreme Court’s Verdict on 13th Amendment Act: 

On May 10, 2011 the Supreme Court of Bangladesh repealed the 13th amendment to the Constitution declaring the Non-party caretaker government of three months duration for holding national elections void and ultra vires to the constitution.

However, Supreme Court allowed holding two more parliamentary elections under the caretaker government excluding the provision of appointing the former Chief Justices and Appellate Division Judges as the Chief Adviser. It is now for current Parliament to decide on it which has been taken up by the Special Committee working to bring in amendments to the Constitution following verdicts of Supreme Court. As usual, AL and BNP taken up opposing stand, reported in national dailies, which have raised reasonable questions, how it would end, would it be repetition of 1996 when AL and its allies forced BNP enact 13th amendment by short lived 6th Parliament, or something else? What is the state of Election Commission now, as the main Opposition wants a new? 

Fourteenth Amendment Act:

The Constitution (Fourteenth Amendment) Act, 2004 was passed on 16th May, 2004.

This amendment amends the several articles:

1)   Insertion of new Article 4 A after Article 4 for preservation and display of the portraits of the President and the Prime Minister.
2)   Amendment of clause (3) of Article 65 in the Constitution regarding reserved number of seats exclusively for women members in the Parliament.
3)   Amendment of Article 96(1), 129 and 139 of the constitution enhancing the retirement age of the Judges of the Supreme Court, Auditor General and Chairman and other members of Public Service Commission.
3)   (i) Enhancement of retirement age of the supreme Court Judges. It becomes very controversial later.
3)   (ii) Enhancement of retirement age of the Auditor General and Chairman & Member of P.S.C.
4)   Amendment of Article 148 of the Constitution making provision for administering oath of the newly elected members of the Parliament by the Chief Election Commissioner is unprecedented.

Fifteenth Amendment Act:

It has been passed on 30 June 2011 in the 9th Parliament. This Amendment has been done on the basis of the HC/SC verdicts on 5th, 7th and 13th Amendments of the Constitution.

Key issues of the 15th Amendment of the Constitution

1)    Caretaker system abolished
2)    Elections to be held under incumbent cabinet
3)    Islam as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ retained above the preamble.
4)    Removal of 'Absolute Faith and Trust in Allah' from the constitution.
5)    Revival of Article 12 to restore Secularism and freedom of religion.
6)    Maintains the provision allowing religion-based politics.
7)    Denies recognizing the indigenous people, will be termed as tribal and ethnic minorities
8)    The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis
9)    Inserted articles 7A and 7B in the Constitution after Article 7 in a bid to end take-over of power through extra-constitutional means and highest level of punishment would be awarded for those power capturers by extra-constitutional means.
10)  Basic provisions of the constitution are not amendable.
11)  In the case of a dissolution Parliament by any reason, election should be held within 90 days of such dissolution.
12)  Increasing the number of women reserve seats to 50 from existing 45.
13)  The Supreme Command of the defense services shall vest in the President and the exercise thereof shall be regulated by law.
14)  The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President in consultation with the Chief Justice.
15)  The portrait of the Sheikh Mujibur Rahman shall be preserved and display at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.
16)  Incorporation of speech of Sheikh Mujibur Rahman on March 7, 1971, declaration of independence by Mujibur Rahman after midnight of March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10, 1971.

NEWS / FEATURES (taken from Newspapers):

After 5th Amendment: Constitution lost basic character

Shakhawat Liton (February 3, 2010. Source: The Daily Star)

The fifth Amendment ratified all actions including those that destroyed the basic character of the country's constitution and made it subordinate to martial law proclamations, orders and regulations made during around four years after August 15, 1975.

Amendments, additions, modifications, substitutions and omissions were indiscriminately made to the constitution during the martial law regime that began immediately after the brutal assassination of Bangabandhu Sheikh Mujibur Rahman on that day.

These actions changed the fundamental principles of state policy, destroyed the secular character of the constitution, allowed politics based on religion, and provided political rights to the anti-Liberation War forces and war criminals.

Besides, Bangalee nationalism was replaced by Bangladeshi nationalism through the fifth amendment passed during the regime of military ruler Ziaur Rahman.

According to the 2005 High Court verdict, the amendment undermined the very sovereign character of the republic.

Article 1 of the constitution says Bangladesh is a unitary, independent, sovereign republic to be known as the People's Republic of Bangladesh.

Interpreting the article, former chief justice Mustafa Kamal says in his book "Bangladesh Constitution: Trends and Issues", "Article 1 distinguishes Bangladesh from a dependency or a colony or a federating unit. Bangladesh has opted for a republican form of government. So, any kind of monarchy, oligarchy, aristocracy or dictatorship is an anathema to its republican character."

In the case centring the eighth amendment, Justice Shahabuddin Ahmed said sovereignty belongs to the people, and supremacy of the constitution as the solemn expression of the will of people, democracy, republican government, unitary state, separation of powers, independence of judiciary and fundamental rights are basic structures of the constitution.

"These are the structural pillars of the constitution and they stand beyond any change by amendatory process," he observed.

Trial of war criminals stopped and their political rehabilitation began with the scrapping of the Bangladesh Collaborators (Special Tribunal) Order 1972 by Khandaker Mushtaque Ahmed, who assumed presidency and put the country under martial law.

By the second proclamation order on May 3, 1976, Justice AM Sayem, who became the president later, omitted the proviso to article 38 of the constitution, which barred politics based on religion.

In light of the proviso, the Special Powers Act provides provisions for punishment against usage of religion for political purpose.

But omission of the provision radically altered the character of political activities in the country with the rise of religion-based political parties, which had been constitutionally banned immediately after the country's independence for their anti-Liberation War role.
The constitutional bar on war criminals convicted under Bangladesh Collaborators (Special Tribunal) Order 1972 from becoming voters and contesting in parliamentary elections was also lifted during the regime of Zia who restored multi-party democracy under the cover of martial law.

Grabbing state power, General HM Ershad later made Islam the state religion by amending the constitution.

The first martial law lastly led by Major General Ziaur Rahman brought some fundamental changes to the constitution by a proclamation order on April 23, 1977.

The preamble to the constitution was preceded by "Bismillah-ar-Rahman-ar-Rahim" (in the name of Allah, the Beneficent, the Merciful).

The preamble also underwent two changes--the words "a historic struggle for national liberation" were replaced with "a historic war for national independence", and "nationalism, socialism, democracy and secularism" as the "high ideals" in the second paragraph was replaced with "absolute trust and faith in Almighty Allah, nationalism, democracy and socialism meaning economic and social justice".

Analogous changes were made in the fundamental principles of state policy "to bring them in conformity with the changed preamble", observes Justice Mustafa Kamal in his book.

Article 8 of the original constitution, which speaks of the four fundamental principles of state policy--nationalism, socialism, democracy and secularism, was amended to omit secularism and insert the words "absolute trust and faith in Almighty Allah".

The principle of socialism was also given a new explanation, saying "socialism would mean economic and social justice".

Bangalee nationalism and socialism and freedom from exploitation in articles 9 and 10 were substituted by the concepts of promotion of local government institutions and participation of women in national life.

The amendment totally omitted article 12, which contained secularism and freedom of religion.

"These changes were of fundamental in nature and changed the very basis of our war for liberation and also defaced the constitution altogether," the High Court observed in its verdict, which, it said, transformed secular Bangladesh into a "theocratic state" and "betrayed one of the dominant causes for the war of liberation of Bangladesh".

HC verdict summary on 5th Amendment

Source: The Daily Star online.

The Appellate Division has upheld the High Court judgment, but will add some modifications and observations of its own. Following is what the HC said in its 2005 verdict.

1)    Bangladesh is a Sovereign Democratic Republic, governed by the Government of laws and not of men.

2)    The Constitution of Bangladesh being the embodiment of the will of the Sovereign People of the Republic of Bangladesh, is the supreme law and all other laws, actions and proceedings, must conform to it and any law or action or proceeding, in whatever form and manner, if made in violation of the Constitution, is void and non est.

3)    The Legislature, the Executive and the Judiciary are the three pillars of the Republic, created by the Constitution, as such, are bound by its provisions. The Legislature makes the law, the Executive runs the government in accordance with law and the Judiciary ensures the enforcement of the provisions of the Constitution.

4)    All Functionaries of the Republic and all services of the Republic, namely, Civil Service, Defence Services and all other services, owe its existence to the Constitution and must obey its edicts.

5)    State of emergency can only be declared by the President of the Republic on the advice of the Prime Minister, in case of imminent danger to the security or economic life of the Republic.

6)    The Constitution stipulates a democratic Republic, run by the elected representatives of the people of Bangladesh but any attempt by any person or group of persons, how high so ever, to usurp an elected government, shall render themselves liable for high treason.

7)    A proclamation can only be issued to declare an existing law under the Constitution, but not for promulgating a new law or offence or for any other purpose.

8)    There is no such law in Bangladesh as Martial Law and no such authority as Martial Law Authority, as such, if any person declares Martial Law, he will be liable for high treason against the Republic. Obedience to superior orders is itself no defence.

9)    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.

10)  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.

11)  The handing over of the office of Martial Law Administrator to Major General Ziaur Rahman BU, 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.

12)  The nomination of Major General Ziaur Rahman, BU 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, BU, were without lawful authority and without jurisdiction.

13)  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, BU.

14)  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.

15)  Paragraph 3A was illegal, firstly because it sought to validate the Proclamations, MLRs and MLOs which were illegal, and secondly, Paragraph 3A, made by the Proclamation Orders, as such, itself was void.

16)  The Parliament may enact any law but subject to the Constitution. The Constitution (Fifth Amendment) Act, 1979 is ultra vires, because:

Firstly, Section 2 of the Constitution (Fifth Amendment) Act, 1979, enacted Paragraph 18, for its insertion in the Fourth Schedule to the Constitution, in order to ratify, confirm and validate the Proclamations, MLRs and MLOs etc. during the period from August 15, 1975 to April 9, 1979. Since those Proclamations, MLRs, MLOs etc., were illegal and void, there were nothing for the Parliament to ratify, confirm and validate.

Secondly, the Proclamations etc, being illegal and constituting offence, its ratification, confirmation and validation, by the Parliament were against common right and reason.

Thirdly, the Constitution was made subordinate and subservient to the Proclamations etc.

Fourthly, those Proclamations etc. destroyed its basic features.

Fifthly, ratification, confirmation and validation do not come within the ambit of 'amendment' in Article 142 of the Constitution.

Sixthly, lack of long title which is a mandatory condition for amendment, made the amendment void.

Seventhly, The Fifth Amendment was made for a collateral purpose which constituted a fraud upon the People of Bangladesh and its Constitution.

17) The Fourth Schedule as envisaged under Article 150 is meant for transitional and temporary provisions, since Paragraph 3A and 18, were neither transitional nor temporary, the insertion of those paragraphs in the Fourth Schedule are beyond the ambit of Article 150 of the Constitution.

18)  The turmoil or crisis in the country is no excuse for any violation of the Constitution or its deviation on any pretext. Such turmoil or crisis must be faced and quelled within the ambit of the Constitution and the laws made thereunder, by the concerned authorities, established under the law for such purpose.

19)  Violation of the Constitution is a grave legal wrong and remains so for all time to come. It cannot be legitimised and shall remain illegitimate forever, however, on the necessity of the State only, such legal wrongs can be condoned in certain circumstances, invoking the maxims, Id quod Alias Non Est Licitum, Necessitas Licitum Facit, salus populi est suprema lex and salus republicate est suprema lex.

20)  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.

21)  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. Besides, Article 95, as amended by the Second Proclamation Order No IV of 1976, is declared valid and retained.

We further declare:

i)       The Constitution (Fifth Amendment) Act, 1979 (Act 1 of 1979) is declared illegal and void ab initio, subject to condonations of the provisions and actions taken thereon as mentioned above.

ii)    The "ratification and confirmation" of The Abandoned Properties (Supplementary Provisions) Regulation, 1977 (Martial Law Regulation No VII of 1977) and Proclamations (Amendment) Order, 1977 (Proclamation Order No 1 of 1977) with regard to insertion of Paragraph 3A to Fourth Schedule of the Constitution by Paragraph 18 of the Fourth Schedule of the Constitution added by the Constitution (Fifth Amendment) Act, 1979 (Act 1 of 1979), is declared to have been made without lawful authority and is of no legal effect.

We further direct the respondents to handover the physical possession Hall at 11, Wiseghat, Dhaka, in favour of the Petitioners, within 60 (Sixty) days from the date of receipt of the copy of this Judgment and Order.

In the result, the Rule is made absolute but without any order as to costs.

Before parting with the case, I would like to express my deep gratitude to the learned Advocates appearing in this case for their unfailing assistance to us. I have enriched my knowledge by their profound learning and experience. I would like to put it on record my deep appreciation for all of them.

Ershad’s martial law illegal

Supreme Court upholds HC verdict declaring 7th amendment void on 15th May, 2011.

The military rule of HM Ershad stands illegitimate as the Supreme Court on Sunday upheld the High Court verdict that had declared the seventh amendment to the constitution, which had approved the regime, illegal.

The SC also declared all proclamations, martial law regulations and orders promulgated from 24 March 1982 to 1986 illegal and void.

The Appellate Division bench headed by Chief Justice ABM Khairul Haque, however, provisionally condoned all acts, things and deeds done, actions and proceedings taken, and all transactions—past and closed—during the period.

The short order of the court did not mention the conditions for condoning the military ruler’s activities. “The Judgment in detail would follow,” it said.

The SC at the same time unconditionally condoned all international treaties made during the said period. On 26 August 2010, the HC bench of justices AHM Shamsuddin Chowdhury and Sheikh Md Zakir Hossain declared the seventh amendment to the constitution illegal.

The verdict came upon hearing a writ petition filed by murder case convict Siddique Ahmed of Chittagong, who challenged his conviction by a martial law court.

The SC in its judgment declared the punishment illegal too, but it ordered fresh trial of the case in sessions’ court from where it had been transferred to the military court.

The SC granted bail to Siddique until initiating of the case in sessions’ court.

Then army chief Lieutenant General (retd) HM Ershad proclaimed martial law on 24 March 1982, overthrowing president Justice Abdus Sattar’s government.

The seventh amendment was adopted by parliament on 11 November 1986, ratifying the promulgation of martial law and all other proclamations and orders under the martial law.

Barrister Syed Amir -ul Islam and Hasan MS Azim participated in the hearing on behalf of the petitioner. Attorney General Mahbubey Alam moved for the state.

In an instant reaction, barrister Hasan MS Azim said, “The Supreme Court verdict swept out the history of military rule from the constitution.”

The SC had earlier declared illegal the regimes of Khandoker Mushtaq Ahmed, Abu Sayem and Ziaur Rahman between 15 August 1975 and 1979.

Constitution to get back on '72 track

Source: The Daily Star

The Supreme Court yesterday dismissed two petitions contesting the High Court verdict that declared the constitution's fifth Amendment illegal.

In so doing, it upheld the historic HC judgment delivered around four and a half years back.

Chief Justice Md Tafazzul Islam pronounced the one-sentence ruling at 10:00am.
In a courtroom filled to the brim, he read, “The petitions are dismissed with modification and observations."

On August 29, 2005, the bench of Justice ABM Khairul Haque and Justice ATM Fazle Kabir delivered the landmark HC judgment.

The verdict meant the governments between August 15, 1975, and April 9, 1979, were in power without lawful authority. Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Major General Ziaur Rahman led the regimes adjudged unlawful.

Yesterday's SC decision came after six days' hearing on the petitions for permission to appeal against the HC verdict.

The other judges of the chief justice-led six member bench of the Appellate Division are Mohammad Fazlul Karim, MA Matin, BK Das, Md Muzammel Hossain and SK Sinha.

Keen to hear a potentially watershed ruling from the top court, lawyers, politicians and journalists had been crowding the court premises from early morning.

Talking to The Daily Star in the afternoon, former chief justice Mostafa Kamal said, "There is no doubt that the Appellate Division of the Supreme Court has upheld the High Court judgment. It will however add some modifications and observations of its own."

Neither the state side nor the petitioners' counsels could give complete reactions yesterday, as they were yet to have in hand the copy of the SC judgment. They might have to wait for weeks to know the court's modification and observations.

Speaking initially, lawyers for the petitioners said they were disappointed to see their petitions get rejected, but claimed the SC did not quite uphold the HC verdict.

That the Appellate Division opted to modify the HC verdict means it found merit in their arguments, they added.

On the other hand, the state counsels said the apex court ruling comprehensively upheld the HC judgment. They however acknowledged they had been expecting the petitions to be turned down without any modifications to the 2005 verdict.

Now they would have to wait tensely to know the modifications.

In his instant reaction, Law Minister Shafique Ahmed said the SC ruling has in fact restored the spirit of the 1972 constitution.

Attorney General Mahbubey Alam said the implications of the court's decision could be known once the judgment's copy is available.

It is however sure that the constitution would have nothing called “martial law”, he noted.

The HC verdict asserts that imposing martial law or usurping power by any extra-constitutional means would always be illegitimate.

Replying to a query, Mahbubey Alam said there would be no need for parliament to pass any bill in this regard, as reprinting the constitution as per the SC judgment would suffice.

Some legal experts said that had the court not upheld the HC verdict, it would have allowed the petitioners to file regular appeal.

They said the fifth Amendment being illegal does not denote revival of the fourth amendment, which had introduced presidential form of government and a one-party system in January 1975. The 12th and other amendments scotched that possibility.

TH Khan, a petitioner's counsel, said it would have been better if the SC had held full hearing after granting leave to appeal.

“Amid disappointments, we however see a ray of hope in the court's uttering the words 'modifications and observations',” he observed.

When the HC delivered the judgment in 2005, the BNP-Jamaat led four-party alliance was in power, and the government had sought to appeal against the verdict.

But the Awami League-led grand alliance government last year decided not to challenge the verdict.

Of the two 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.

None of the petitioners was party to the original case.

TH Khan stood for Delwar and barristers Moudud Ahmed and Abdur Razzaq for the three lawyers.

The HC in its verdict said the constitution does not permit anyone to assume power by any means other than the ones mentioned in it. If anyone does so, it will amount to sedition.

It observed that martial law as a whole is illegal and unconstitutional, and all the actions, laws and rules made under martial law are illegal.

The changes of governments between August 15, 1975 and the national elections of 1991 were not carried out constitutionally.

The court, however, noted that though all government activities between August 15, 1975, and April 9, 1979, have been declared illegal, the history cannot be altered.

Many of these acts were done in public interest. From this perspective, the court condones some of these actions that could have been done in line with the constitution.
The verdict came in response to a writ petition filed by Masudul Alam on behalf of Bangladesh Italian Marble Works Company (BIMWC) to reclaim a cinema hall at Waizghat in Dhaka that the company lost during the military rule.


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