By Julfikar Ali Manik and Ashutosh Sarkar in The Daily Star, July 29
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.
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."
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 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.
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.http://www.thedailystar.net/newDesign/news-details.php?nid=148532
2. No to ‘extra-constitutional adventure’ forever
By Shakhawat Liton in The Daily Star, July 29
The Appellate Division of Supreme Court in a landmark verdict strongly denounced martial law and suspension of the country’s constitution, and recommended meting out suitable punishment to the perpetrators.
Upholding the High Court Division’s historic ruling of 2005 that had declared the fifth amendment to the constitution illegal, the apex court also said it is up to the parliament to enact laws to prevent martial law.
"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 Appellate Division verdict.
"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 apex court concluded.
It also said military rule was wrongly justified in the past, and it should not be justified in future on any ground.
"Let us bid farewell to all kinds of extra constitutional adventure forever," it observed.
Extra constitutional usurpation of state power happened twice in Bangladesh.
Following the brutal assassination of Bangabandhu Sheikh Mujibur Rahman on August 15, 1975, Khondaker Moshtaque Ahmed assumed the office of president, and placed the whole country under martial law for the first time in independent Bangladesh.
The regime began with overthrowing the government led by Bangabandhu, and on November 6, 1975 it dissolved the first parliament formed through the 1973 election.
During the first martial law regime, the constitution was made subordinate to martial law proclamations, regulations, and orders for around four years.
During the second martial law regime since March 24 of 1982, the constitution remained totally suspended for around four years. http://www.thedailystar.net/newDesign/news-details.php?nid=148533
3. Parties using religion face ban
By Shakhawat Liton in The Daily Star, July 29
Political parties and other organisations using religion as their guidelines now stand banned with cancellation of the fifth amendment to the constitution, says the law minister.
Their activities are now punishable offence, Law Minister Shafique Ahmed told The Daily Star yesterday.
Following the Appellate Division’s decision upholding the High Court’s landmark verdict that declared the constitution’s Fifth Amendment illegal, restrictions on formation of organisations based on religion were restored.
The existing article 38 of the constitution allows every citizen to form associations or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order.
But during the first martial law regime began after brutal assassination of Bangabandhu Sheikh Mujibur Rahman, the proviso of article 38 was omitted opening the door again for political parties based on religion. http://www.thedailystar.net/newDesign/news-details.php?nid=148538
