Barrister Nazir Ahmed: The Fifth Amendment was one of the most notable Amendments in the constitutional history of Bangladesh. Bangladesh, through the Fourth Amendment, entered into a dark chapter of one party system in the mid 1975. The Fifth Amendment abolished the one party system and, in its place, introduced much wanted a multi-party system. It saved the judiciary from it subjugatative nature. It gave freedom to the press and media. The Fifth Amendment gave the nation a national identity and a sense of direction in terms of nationality and religious value, the wish and aspiration of at least 85% of the population. Brief background on how Fifth Amendment came into being In a military coup led by a group of army officers, Sheikh Mujibur Rahman was brutally killed along with his almost entire family members on 15th August 1975. Khondoker Mustaque Ahmed, a senior leader of Bangladesh Awami League (BAL), assumed the office of the President and imposed martial law in the country. Though martial law was declared on 15th August 1975, the Constitution was not abrogated. On 20th August 1975, Khondoker Mustaque Ahmed issued a proclamation providing that the Constitution would, subject to the proclamation and martial law regulations and orders made by him, continue to remain in force, but no court including the Supreme Court or any tribunal or authority would have any power to call in question or declare void the proclamation or any martial law regulation or order made by him. On 6th November 1975, by the Proclamation (Second Amendment) Order 1975 Khondoker Mustaque Ahmed assumed power to hand over the office of the President to any person and accordingly he handed over the office of the President to the Chief Justice ASM Sayem. Justice Sayem issued the proclamation of 8th November 1975 in his capacity as the President and the Chief Martial Law Administrator (CMLA) modifying the proclamation of 20th August 1975. Thereafter by successive proclamation orders, various amendments were made in the Constitution. By the third proclamation dated 29th November 1976, the President appointed Ziaur Rahman as the CMLA. In 1977, Ziaur Rahman became the President and in his capacity as the President and CMLA issued proclamations and orders. This pattern continued until 1979. The second parliamentary election was held in 1979 and the Bangladesh Nationalist Party (BNP), the President’s and CMLA’s party, got a two-third majority. The first session of Parliament was convened on 1st April 1979 and on 6 April the Constitution (Fifth Amendment) Act was passed which legalised all the activities of the martial law governments made and done during the period between 15 August 1975 and 9th April 1975. It amended the Fourth Schedule to the Constitution by an addition a new Paragraph 18 thereto which provided, inter alia, that all amendments, additions, modifications, substitutions and omissions made in the Constitution during the period between the 15th August 1975 and 9th April 1979 by any proclamation or proclamation order of the martial law authorities were ratified and confirmed and were declared to have been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The changes made by the Fifth Amendment The Fifth Amendment brought in, among others, the following changes in the Constitution: 1. Part VIA of the Constitution dealing with the one party system introduced by the Fourth Amendment was completely omitted. 2. Provisions of referendum in respect of amendment of certain provisions of the Constitution were inserted and to that end a new clause IA was created in Article 142. 3. The religious expression “Bismillahir Rahmanir Rahim” was inserted at the beginning of the constitution, just above the Preamble. 4. The ‘Secularism,’ one of the fundamental principles of State policy, was omitted and in its place a new one called “the principle of absolute trust and faith in the Almighty Allah” was inserted (Article 8). 5. The ‘Socialism,’ another principle of the fundamental State policies, was redefined to the effect that ‘socialism’ would mean economic and social justice (Article 8). 6. Under Article 6 of the original 1972 Constitution, the citizens of Bangladesh were known as ‘Bangalees.’ The Fifth Amendment changed this provision by providing that “the citizens of Bangladesh would be known as Bangladeshis.” 7. The independence of judiciary, which was completely destroyed by the Fourth Amendment, was restored partially, (Article 96 and 116). 8. The original and inherent jurisdiction of the High Court Division of the Supreme Court to enforce fundamental rights was restored to its original position as was in the original Constitution (Article 44 and 102). 9. The provision of the Supreme Judicial Council in respect of security of tenure of the Judges of the Supreme Court was inserted (Article 96). 10. The provision of absolute veto power of the President introduced by the Fourth Amendment was abolished (Article 80). 11. A new Article 145A was created where it was provided that all international treaties would be submitted to the President who should cause them to be laid before Parliament. 12. Another new Article was created whereby the President was given the power to expend public moneys in certain ways. 13. Article 58 was amended to the effect that four-fifth of the total number of Ministers should be taken from among the Members of Parliament. It was also provided that the President would appoint as Prime Minister the Member of Parliament who appeared to him to command the support of the majority Members of Parliament. 14. The idiom ‘historic struggle for national liberation’ in the introduction was replaced by ‘a historic war for national independence.’ The strike out of the Fifth Amendment In August 2005, a High Court Bench comprising of Justice ABM Khairul Haque and ATM Fazle Kabir declared the Fifth Amendment to the Constitution of Bangladesh illegal. The High Court judgement had also rendered illegal the regimes of Khandaker Moshtaque Ahmed, Justice ASM Sayem alongside that of late President Ziaur Rahman between August 15, 1975 and April 9, 1979. The aggrieved parties sought leave to appeal to the Appellate Division of the Supreme Court and, upon application, the High Court judgment was stayed by the Appellate Division on 1 September 2005. The matter remained stayed for five years. After coming to power, the Grand Alliance Government led by the BAL took initiatives to settle the matter. Accordingly, a six-member bench of the Apex Court’s Appellate Division headed by then retiring Chief Justice Md Tafazzul Islam in 2010 upheld the High Court verdict after six days of hearing on the two leave-to-appeal petitions filed by the BNP Secretary General Khondker Delwar Hossain and three lawyers from its key ally Bangladesh Jamaat-e-Islami (BJI). Some inconsistencies of the Fifth Amendment judgment Wherever the Apex Court found any alteration of the Fourth Amendment by the Fifth Amendment, it condoned the provisions of the latter Amendment for the sake of public interest and state necessity. But no such condonation appeared to have been made with regard to those provisions of the Fifth Amendment which had substituted or amended the provisions of the 1972 original Constitution. The Supreme Court observed that such provisions were void ab initio and not suitable for condonation as they had attacked the basic structure of the Constitution. However, on reading the whole judgment, it appears that the Apex Court had not invalidated each and every provision of the Fifth Amendment which was inconsistent with the 1972 Constitution. For example, the authority of investigating complaints against the Judges of the Supreme Court was granted to the Supreme Judicial Council (a body comprising the Chief Justice and two other most senior Judges of the Apex Court) under the Fifth Amendment, although this authority belonged to Parliament under the 1972 Constitution. In this case, the Supreme Court retained the provision of the Supreme Judicial Council. The Supreme Court, in the Fifth Amendment judgment, has not only “picked and chosen” the provisions to be retained or deleted from the Constitution, it has also placed the constitutional provisions in contradiction with each other on at least two accounts. It has retained Article 6 as modified by the Fifth Amendment according to which our nationality is Bangladeshi while the reinstated Article 9 of the 1972 Constitution has described us as Bangalee nation. Again, the reinstated Article 8 described secularism as one of the fundamental principles of State policy and Article 12 defines secularism, as a policy which, among other things, requires elimination of “granting by the State of political status in favour of any religion.” These two Articles, therefore, should not and cannot co-exist with Article 2A, which has unambiguously granted such political status to Islam by declaring it as the State religion. As long as Article 2A remains in the Constitution, it is doubtful whether automatic reinstitution of Article 8 and 12 of the 1972 Constitution is logical or sensible. The Fifth Amendment judgment is misleading with regard to Article 142 of the Constitution. The High Court has denied condonation of the changes in this Article along with Preamble and some other Articles (Art 6, 8, 9, 10, 12, 38 and Clause 1A, 1B, 1C of Article 142) of the Constitution and declared that these Articles must “remain as it was in the original Constitution.” However, Article 142, which the High Court has described in the Fifth Amendment judgment as an Article of the original Constitution, is not actually so; rather, it is an amended version done by the Second Amendment in 1973. The difference between these two versions is not at all trivial. Original Article 142, along with Article 26, means the State cannot curtail or circumscribe the provisions of the Constitution concerning fundamental rights of the citizens by amending the Constitution. In contrast, Article 142, as altered by the Second Amendment, denotes that this could be done by constitutional amendment! The question might be raised as to which version of Article 142 the High Court Division of the Supreme Court has sought to reinstate in the Constitution. The Appellate Division has not addressed this lacuna. Confusion and controversy The Fifth Amendment judgment has given rise to some confusion as well as controversy. Why did the High Court Division, which gave the first and original judgement, not give leave on its own motion to appeal to the Appellate Court of the Supreme Court of Bangladesh, for this case involved serious and complex constitutional matter? Article 103(2) of the Constitution says “An appeal to the Appellate Division from a judgement, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division – (a) certifies that the case involves a substantial question of law as to the interpretation of this Constitution….” The Fifth Amendment has shaken the entire Constitution, the repeal of it has, in turn, shaken the entire nation, both constitutionally and politically. It touched upon dozens of Articles and declared reinstitution of original Articles, some of which contradicted the existing Articles and at least one of which did not have any clear meaning. If this was not considered as involving a substantial question of law as to the interpretation of the constitution, then what is and what else could be? Even the maneuvours and actions of the Appellate Division also caused concerns and controversies. The then Chief Justice Md Tafazzul Islam was the retiring Chief Justice and, in fact, he retired from the office of the Chief Justice within days of hearing the leave petitions of Fifth Amendment case and then wrote the judgment months after being retired. Why this was so? Why did he feel completed to finish the leave petitions when he knew well that he would not be able to write the judgement under oath, before his retirement? Despite the Fifth Amendment case being apparently involved a substantial question of law as to the interpretation of this Constitution, why did the Appellate Division of the Supreme Court headed by Chief Justice Md Tafazzul Islam not grant leave so that the matter is fully heard at the Apex Court? Granting leave is not at all a final judgment given in favour of the leave seekers. Country’s senior most and leading lawyers like TH Khan and Barrister Moudud Ahmed argued six days continuously for leave to be granted, but leave was rejected. Instead, a six-member bench of the Apex Court’s Appellate Division headed by then retiring Chief Justice Md Tafazzul Islam gave a full judgment consisting of 184 pages upholding the High Court judgment and rejecting the leave petitions. This is unprecedented even in the world’s history. I have searched thoroughly but not found a single US Supreme Court or UK Supreme Court judgement where the leave petition was refused, yet a full judgment was given and again of 184 pages! While giving the full and final judgment after the leave petitions hearing, the Supreme Court, interestingly kept some provisions while repealing other provisions of the Fifth Amendment. They condoned some provisions of the Fifth Amendment for the sake of public interest and state necessity as they saw fit. Now the question is: who gave them authority or where did they get power to keep some or delete others or vice versa without a full and proper hearing? How could they pick and chose as they wished. This is nothing but a judicial dictatorship. Any future challenge or review application might find this approach of the Apex Court indefensible and untenable. Justice ABM Khairul Haque was elevated to the Appellate Division from the High Court after the Fifth Amendment Judgement superseding other senior Judges. He was later made the Chief Justice superceding two other senior Judges. After retirement, he was made the Chairman of the Law Commission, a rank equivalent to the Chief Justice. The Second Judge, who despite being this an important constitutional judgment did not write a line other than agreeing with the presiding Judge with a couple of words “I Agree,” was later made the Chairman of the International Crimes Tribunal (ICT) and then, on retirement, made a member of the Law Commission, equivalent to the position of a Judge of the Supreme Court. Justice Md Tafazzul Islam was elevated to the Appellate Division of the Supreme Court from the High Court and entrusted with the responsibility of disposing the appeals of Bangabandhu Murder case. Upon the completion of this case, he was made the Chief Justice. Immediately before the retirement, he disposed of the leave petitions of the Fifth Amendment Case. No matter how competent the relevant Judges were or how bona fide the intention of the government was, the above apparently ill-motivated maneuvours by the government would be perceived and considered with doubt, suspicion and scepticism. Conclusion The Fifth Amendment was the most important basis for the BNP’s politics. In fact, it laid down the foundation of the BNP’s politics of nationalism and religious value. The High Court declared this Amendment unlawful when the BNP was in power and, in fact, they remained so more than a year. They did not try to get these important constitutional issues of the Fifth Amendment settled at the Apex Curt of Bangladesh while they were in power. All lawyers and conscious citizens know that if the government and Attorney General want and become serious, any matter could be raised and settled in the highest court of land within three to six month maximum. When the BAL Government wanted to settle the issues of Fifth Amendment in their favour, they did so within less than three months! Unfortunately, the BNP did not try whole heartedly at all while they were in power. Rather, they appeared happy by getting the matter stayed from the Supreme Court! Cure is always better than containment. During that time, there were some skilled, sharp, impartial and talented Judges in the Apex Court. If the BNP settled those constitutional issues at the Apex Court while they were in power, the history would have been different now. The nation in general and the BNP in particular have been paying a heavy price for the inaction, slow in action and lack of seriousness of the BNP government in the last decade in relation to the Fifth Amendment. Barrister Nazir Ahmed: a UK based Legal expert, analyst, writer and columnist. sheikhnews/2014/09/01/nazirahmed-20/
Posted on: Sat, 06 Dec 2014 07:57:43 +0000
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