South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

The Appellate Division of the Supreme Court in an amended ruling on the High Court verdict, which had declared illegal the Fifth Amendment to the constitution, has commented that the nationalism will be ‘Bangladeshi’ instead of ‘Bengali’.

The highest appeals court’s verdict on two petitions challenging the repeal of the Fifth Amendment was published on Tuesday.

The six-member full bench of the Appellate Division, headed by former chief justice Mohammed Tafazzul Islam, published the verdict after a long meeting.
Attorney general Mahbubey Alam told journalists after getting a copy of the verdict: “The Appellate Division has upheld the High Court verdict terming illegal the usurping of power by Khandaker Mushtaque Ahmed, Abu Sa’dat Mohammad Sayem and Ziaur Rahman.”

“However, the Appellate Division has commented that despite the mention of Bengali nationalism in the High Court verdict, nationalism should be Bangladeshi,” he pointed out.

The attorney general also said that the main portion of the latest verdict did not make any reference to the four foundations of the constitution. It strongly criticised unconstitutional takeover of power and expressed the resolve that such power grab needs to be stopped once for all.

Responding to a query, Alam said, “The main portion of the verdict makes no reference to secularism and use of religion for political purposes.”

“The Appellate Division has amended the High Court verdict on transition period. The Appellate Division also expressed its support for administrative works carried out from 1975 to 1979 that did not infringe on citizen’s rights. The Supreme Court has declared completely illegal martial law,” he added.

On Feb 2, the bench dismissed the petitions after six days of hearings that began on Jan 19.

It said in the rejection, “Petitions are dismissed with modification and observation.”

Law minister Shafique Ahmed told reporters after that ruling that the order laid the foundation for reviving the spirit of the independence war which was at the core of the country’s constitution.

Regarding the amendment to the constitution, he had said they would take measures after receiving the copy of the order.

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 High Court 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 High Court declared illegal three regimes between August 15, 1975 and February 1979, headed by Khandaker Mushtaque Ahmed, Abu Sa’dat Mohammad Sayem and Ziaur Rahman.

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 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 the two petitions by BNP secretary general Khandaker Delwar Hossain and three pro-Jamaat-e-Islami lawyers last month.

The court said that by rejecting the two leave petitions, “We are completely disapproving of military rule and stay of constitution. Those involved in these illegal acts should be trialled and criticised so that in the future, no over-eager or illegal power usurper can show the impudence to remove the people’s constitution and the government they have elected.

It also said in the verdict, “Even though the parliament can implement a law for this, we are saying goodbye forever to all actions outside the constitution.”

Source: BD News 24 – 27.07.2010