The Appellate Division of the Supreme Court (SC) Tuesday dismissed the petitions seeking leave to file regular appeal against a High Court (HC) verdict that declared illegal the 5th Amendment to the constitution, report agencies.
The amendments brought in 1979 had allowed the religion- based politics and legitimized the post 1975 regimes after a coup in 1975 toppled the country's post independent government.
A six-judge bench of the Appellate Division headed by the Chief Justice Md. Tafazzul Islam pronounced the order Tuesday morning after hearing the petitions for six days.
"The petitions are dismissed with modifications and observations," the Chief Justice delivered the order, which took only two minutes.
The other judges of the bench are Justice Mohammad Fazlul Karim, Justice M A Matin, Justice Bijan Kumar Das, Justice Md. Mozammel Hossain and Justice Surendra Kumar Sinha.
However, petitioners' counsels claimed that the judgement indirectly accepted their arguments.
Petitioners' counsels TH Khan and Moudud Ahmed said, "It was our hope that the leave will be granted which will pave the way for elaborate discussion on the subject, as it is a very important issue".
"In any way the Appellate Division in its order mentioned that modifications and observations will be laid down in the judgement and this is in-fact indirectly accepting our arguments submitted before the court which we think were proper in seeking the leave to appeal."
Moudud Ahmed further said: "As the Appellate Division pronounced the word 'modification' it cannot be said that the High Court ruling is being upheld fully."
"The ruling has also proved the veracity of our rationale," Moudud, also a BNP leader, said.
TH Khan, said: "The court has pronounced the word 'modification' because our reasoning was actually rational."
He said the government should bring a bill in parliament to change the constitution accordingly.
The BNP Secretary General Khandaker Delwar Hossain and three other advocates of the SC brought two separate leave petitions as interveners while the present government sought permission to pick up its earlier petition seeking leave to file the regular appeal against the HC verdict.
A two-member HC bench comprising Justice ABM Khairul Haque and Justice ATM Fazle Kabir on August 29, 2005 pronounced the verdict declaring the 5th Amendment to the constitution illegal while disposing of a writ petition challenging the government authority to declare the Moon Cinema hall as an abandoned property.
Attorney General (AG) Mahbubey Alam, after pronouncement of the order expressed his reaction to the press saying, "it (order) is no doubt a great victory for the country's judiciary".
"The full picture will be clear after getting the full judgement, but we can assume that the four pillars of the 1972 constitution-democracy, socialism, nationalism and secularism- will be restored as the leave was not granted on an unanimous decision," Alam said.
Replying to a question, AG said the HC judgement was absolutely not based on political considerations, but it was fully reflected the constitutional prospect.
Mahbubey Alam told reporters the SC ruling essentially upheld the previous HC judgment. He said it meant that the possibility of the military taking over power had been stopped forever.
Asked if there was any need to amend the constitution in parliament, Alam said: "No bill should be brought in parliament. The constitution will be reprinted the way it was, after the Eighth Amendment."
He said: "This rule is a great victory in the country's history."
"Bangladesh has been promoted to the level of those civilised countries where Martial Law does not exist," Alam said.
The Fifth Amendment was meant to provide constitutional legitimacy to the governments in power - military or otherwise - following the 1975 assassination of the founding president Sheikh Mujibur Rahman.
But the HC gave a ruling in August 2005, declaring the Fifth Amendment illegal, in response to a petition challenging the legality of the Martial Law Regulation of 1977.
In its ruling, the HC declared three regimes between August 15, 1975 and 1979, headed by Khandaker Mushtaque Ahmed, Abu Sa'dat Mohammad Sayem and Ziaur Rahman as illegal.
The ruling exempted certain measures of those regimes initiated for public welfare. But the court in its judgment said all the changes in government from August 15, 1975 right up to the national elections of 1991 were also unconstitutional.
The present Awami League-led government's withdrawal from a petition made by the previous BNP-led regime, against the High Court ruling, prompted petitions by BNP secretary general Khandaker Delwar Hossain and three pro-Jamaat lawyers last month.
Meanwhile, Law Minister Shafique Ahmed said Tuesday's SC rulings would help restore the true spirit of the Liberation War and the rule of law and institutionalize a non-communal democratic Bangladesh.
"This verdict demonstrates that the Constitution is the supreme law and it will remain as a milestone in establishing the rule of law," he told reporters at his ministry on Tuesday noon after meeting with US Ambassador James Moriarty.
The Law Minister said that there is no scope for creating debate on religious point of view over this verdict, which affirmed the HC verdict declaring void the 5th amendment with some changes. Only those constitutional provisions which were scrapped by military promulgations would now be restored.
SC dismisses 5th amendment petitions with observations
FE Team | Published: February 03, 2010 00:00:00 | Updated: February 01, 2018 00:00:00
Share if you like