Shahabuddin govt slightly exposed | The Daily Star
12:00 AM, May 16, 2011 / LAST MODIFIED: 12:00 AM, May 16, 2011

Shahabuddin govt slightly exposed

JS body mulls ways to plug constitutional loopholes

The parliamentary special committee on constitutional amendment is looking for ways to ratify afresh the interim government led by Justice Shahabuddin Ahmed that was formed after the end of an autocratic rule in 1990.
The committee made the move as the interim regime might lose the constitutional protection for not being ratified and validated properly in 1991, some members of the committee told The Daily Star citing the Supreme Court's two recent landmark verdicts.
Military ruler HM Ershad stepped down on December 6, 1990 in the wake of a popular uprising, appointing the then chief Justice Shahabuddin Ahmed as the vice-president, since the then vice-president had resigned earlier.
Justice Shahabuddin Ahmed exercised the powers and performed the functions of the president, and a parliamentary election was held under his supervision in February 1991.
The fifth parliament, constituted through the 1991 election, passed the Eleventh Amendment Act in August the same year to ratify Justice Shahabuddin's appointment as the vice-president, the powers exercised by him, and the laws and ordinances made during his tenure.
The amendment also allowed him to resume his duties and responsibilities as the chief justice after a new president was elected under the constitution.
To ratify his interim regime, a new clause was inserted in the fourth schedule of the constitution through the passage of the Eleventh Amendment Act, using the constitution's transitional and temporary provisions.
But in recent developments, the SC in two separate verdicts on the constitution's fifth and seventh amendments announced that the necessity for a transitional period ended with the enactment and commencement of the constitution on December 16, 1972.
According to the verdicts, the parliament by amending the constitution cannot insert anything afresh in the fourth schedule, after December 16, 1972.
Article 150 of the constitution provided the transitional provisions in the fourth schedule to protect various laws, actions and decisions made, taken or pronounced between the Declaration of Independence on March 26, 1971 and the commencement of the constitution on December 16, 1972, according to the SC verdicts.
But military usurpers of state power, Gen Ziaur Rahman and HM Ershad, abused the transitional provisions to ratify and validate their extra-constitutional takeovers of state power and all related illegal activities.
In doing so, they made parliaments pass the fifth and seventh amendment acts, and inserted separate clauses in the fourth schedule in 1979 and 1986 respectively.
Later, the eleventh and twelfth amendment acts also inserted new clauses in the fourth schedule in 1991 to ratify Justice Shahabuddin's regime, and the formation of the fifth parliament.
Justice Shahabuddin's regime was somewhat different from the two generals' regimes, as he became the vice-president on the basis of a political consensus among all parties.
The government, by shutting the window of the fourth schedule, now wants to bring amendments to the constitution to block the process of ratifying extra-constitutional takeovers of state power and related illegal activities.
Participating in talks with the special committee on April 27, ruling Awami League chief Sheikh Hasina also proposed for inserting stringent provisions in the constitution to stop extra-constitutional takeovers of state power, and the process of validating illegal power grabs.
After the talks, in a press briefing in Gono Bhaban, Hasina, also the prime minister, said her party made the proposals to consolidate people's power.
Immediately after the formal briefing, this correspondent talked to her seeking the details about her party's proposal.
In response, the AL chief said the fourth schedule should be cleaned by deleting all inserted clauses from it, excepting those which were inserted before December 16, 1972.
Asked what will be the fate of the clause inserted to ratify the interim regime led by Justice Shahabuddin, the premier said, "The special committee will work on it and find ways in this regard."
The parliamentary special committee already agreed in principle to propose for necessary changes in the constitution for blocking illegal usurpation of state power, and ex post facto legalisation of such extra-constitutional takeovers and all related illegal activities.
In light of the SC's observations made in the verdicts on the fifth and seventh amendments, the special committee is in favour of deleting the clauses from the fourth schedule which were inserted after December 16, 1972.
Cancellation of the fifth and seventh amendment acts by the SC made it easy for the special committee to move to clean the fourth schedule, but only the eleventh amendment creates a major concern regarding the matter.
Contacted by The Daily Star, some members of the special committee said, the clause inserted by the eleventh amendment act still has effects, and they are concerned about it as it ratified the regime of Shahabuddin Ahmed.
"We will examine how the regime and Justice Shahabuddin Ahmed can be legally protected from any adverse situation after deleting the specific clause from the fourth schedule," said a committee member.

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