Fifth amendment was a historical necessity

The fifth amendment to the constitution of Bangladesh was made in order to maintain the continuity of the acts of the republic, barrister Moudud Ahmed told the Appellate Division of the Supreme Court yesterday.
This amendment was brought to the constitution for the historical necessity of the country and the nation, Moudud said while placing his arguments before the apex court during the second day's hearing on the leave-to-appeal petitions challenging the High Court verdict declaring the fifth amendment illegal and void.
It 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.
On August 29, 2005, the HC in a landmark verdict declared illegal and void this amendment, 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.
Moudud said the fifth amendment has now become a part of the constitution, since the people and the parliament have accepted this amendment, and that is why this amendment cannot be cancelled.
He placed the arguments on behalf of three SC lawyers Tajul Islam, Kamruzzaman Bhuiyan and Munshi Ahsan Kabir, who filed one of the leave to appeal petitions with the SC against the HC verdict on May 25 last year.
BNP Secretary General Khandaker Delwar Hossain also filed a similar petition on the same day.
The six-member full bench of the Appellate Division headed by Chief Justice Md Tafazzul Islam started hearing on the petitions on Tuesday. After concluding yesterday's hearing, the Appellate Division bench fixed January 24 for further hearing.
Moudud argued that the seventh amendment to the constitution had legitimised the rule of martial law by HM Ershad and its 11th amendment legitimised the government of Justice Shahabuddin Ahmad.
The nature and language of all the fifth, seventh and 11th amendments to the constitution were almost similar, but the HC has nullified only the fifth amendment, he added.
Earlier in the day, advocate TH Khan, counsel for the BNP secretary general, told the apex court that the parliament has passed the fifth amendment to the constitution but the constitution has not empowered the HC to interfere in the parliament decision.
The HC verdict that declared illegal the constitution's fifth amendment was an extra-judicial adventurism, he added.