SC lifts stay on verdict

The Supreme Court (SC) yesterday lifted its four-year old stay order on a High Court (HC) verdict that had declared illegal and unconstitutional the fifth amendment to the country's constitution.

The amendment had legitimised all governments that had been in power following the coup of August 15, 1975 till April 9, 1979 including late president Ziaur Rahman's ascension to the presidency.

The SC Appellate Division yesterday also allowed withdrawal by the incumbent government and Muktijoddha Kalyan Trust of two leave to appeal petitions against the HC verdict.

The two petitions were filed by immediate past BNP-Jamaat-led alliance government and Muktijoddha Kalyan Trust in September 2005. Those two are among four such leave to appeal petitions aiming to protect the fifth amendment.

Dealing with the two remaining petitions, the apex court yesterday fixed January 18 for hearing arguments of the petitioners. BNP Secretary General Khandaker Delwar Hossain filed one of those petitions while three SC lawyers Tajul Islam, Kamruzzaman Bhuiyan, and Munshi Ahsan Kabir jointly filed the other, both of which were filed in May last year.

A five-member bench of the Appellate Division headed by Chief Justice Md Tafazzul Islam came up with the orders after hearing arguments of the incumbent attorney general, and counsels of the writ petitioner and appellants.

On August 29, 2005 the HC in a landmark verdict declared illegal and void the fifth amendment to the constitution, rendering illegal the regimes of Khandaker Moshtaque Ahmed, Abu Sadaat Mohammad Sayem, and Maj Gen Ziaur Rahman between August 15, 1975 and April 9, 1979.

The same day at midnight the Attorney General's Office, under the erstwhile BNP-Jamaat-led regime, urgently moved a petition to impose a stay on the HC verdict. The SC also issued the stay order the same night.

At that time, the erstwhile law minister Moudud Ahmed termed the HC verdict as 'valueless' saying it just created a 'temporary sensation', while leading lawyers hailed the verdict saying it proved that martial laws cannot change the constitution.

Incumbent Attorney General Mahbubey Alam told reporters yesterday that the HC judgement will remain upheld unless the apex court takes a decision contrary to the current one during adjudication of the remaining two leave to appeal petitions.

He said he will communicate the SC order to the government, so it may proceed to implement the HC verdict.

The attorney general said the fifth amendment is no more effective since yesterday's SC decision.

Replying to a question he said the government now has to reprint the constitution omitting the part of the fifth amendment.

He said the words Bismillahir Rahmanir Rahim however will not be removed from the preamble of the constitution.

Counsel for Khandaker Delwar Hossain, TH Khan however said the stay order on the effectiveness of the HC verdict will continue since two other leave to appeal petitions against the verdict are pending.

Constitution expert Dr M Zahir told The Daily Star that the HC verdict has been upheld by the SC order, but it is still under challenge until the remaining leave to appeal petitions are adjudicated.

Chairman of the Law Commission Justice MA Rashid said "If the High Court's judgement of declaring unconstitutional and illegal the fifth amendment to the constitution is upheld, the constitution should be read and enforced according to the directions given in the judgement until the constitution is amended in light of it."

The HC in its verdict noted that although all government activities during the said period are being declared illegal, the history cannot be altered. Many of those illegal acts were carried out in public interest. From that perspective, the court 'condones' some of the actions which could also have been carried out in line with the constitution.

The court said assumption of power by Khandaker Moshtaque Ahmed with effect from the morning of August 15, 1975 by placing Bangladesh under a martial law, and his assumption of the office of president of the People's Republic of Bangladesh by the Proclamation of August 20, 1975 were in clear violation of the constitution, and without lawful authority.

"Consequently, all his subsequent actions as the president of Bangladesh were illegitimate and void," it observed.

Taking over of the office of the president on November 6, 1975 by Justice Abu Sadaat Mohammad Sayem, his assumption of the powers of chief martial law administrator (CMLA), his act of appointing Ziaur Rahman as the deputy CMLA, and the Proclamation of November 8, 1975 were all in violation of the constitution, which means all his functions and actions as the president or CMLA were illegitimate, the verdict observed.

The HC verdict also directed the authorities to handover the property of the erstwhile Moon Cinema Hall in Waizghat in Dhaka to its original owner, who actually initiated the case through filing of a writ petition.

Masudul Alam, on behalf of Bangladesh Italian Marble Works Company (BIMWC), filed the writ petition in 1994 to reclaim ownership of Moon Cinema Hall which the government right after the country's independence announced as abandoned property and awarded to Muktijoddha Kalyan Trust.

The petition also challenged the legality of the Martial Law Regulation of 1977.