In a landmark decision, the Bangladesh Supreme Court upheld a ruling given by the High Court in 2005, which threw out the 1979 5th Amendment to the constitution.
This amendment had allowed formation of religion-based political parties as well as legitimized the acts of the Martial Law governments between August 15, 1975 to April 7, 1979.
The Supreme Court proclaimed that here is “no such law in Bangladesh as Martial Law and no such authority as Martial Law Authority, as such, if any person declares Martial Law, he will be liable for high treason against the Republic. Obedience to superior orders is itself no defense”.
While declaring some of the provisions and changes made to the constitutions to have been made without lawful authority, it condoned them as past and closed transactions, but declared that “such condonations are made not because those are legal but only in the interest of the republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.
Full text of the 2005 HC verdict:
1. Bangladesh is a Sovereign Democratic Republic, governed by the Government of laws and not of men.
2. The Constitution of Bangladesh being the embodiment of the will of the Sovereign People of the Republic of Bangladesh, is the supreme law and all other laws, actions and proceedings, must conform to it and any law or action or proceeding, in whatever form and manner, if made in violation of the Constitution, is void and non est.
3. The Legislature, the Executive and the Judiciary are the three pillars of the Republic, created by the Constitution, as such, are bound by its provisions. The Legislature makes the law, the Executive runs the government in accordance with law and the Judiciary ensures the enforcement of the provisions of the Constitution.
4. All Functionaries of the Republic and all services of the Republic, namely, Civil Service, Defence Services and all other services, owe its existence to the Constitution and must obey its edicts.
5. State of emergency can only be declared by the President of the Republic on the advice of the Prime Minister, in case of imminent danger to the security or economic life of the Republic.
6. The Constitution stipulates a democratic Republic, run by the elected representatives of the people of Bangladesh but any attempt by any person or group of persons, how high so ever, to usurp an elected government, shall render themselves liable for high treason.
7. A proclamation can only be issued to declare an existing law under the Constitution, but not for promulgating a new law or offence or for any other purpose.
8. There is no such law in Bangladesh as Martial Law and no such authority as Martial Law Authority, as such, if any person declares Martial Law, he will be liable for high treason against the Republic. Obedience to superior orders is itself no defence.
9. The taking over of the powers of the Government of the People’s Republic of Bangladesh with effect from the morning of 15th August, 1975, by Khandaker Mushtaque Ahmed, an usurper, placing Bangladesh under Martial Law and his assumption of the office of the President of Bangladesh, were in clear violation of the Constitution, as such, illegal, without lawful authority and without jurisdiction.
10. The nomination of Mr Justice Abusadat Mohammad Sayem, as the President of Bangladesh, on November, 6, 1975, and his taking over of the office of President of Bangladesh and his assumption of the powers of the Chief Martial Law Administrator and his appointment of the Deputy Chief Martial Law Administrators by the Proclamation issued on November 8, 1975, were all in violation of the Constitution.
11. The handing over of the office of Martial Law Administrator to Major General Ziaur Rahman BU, PSC, by the aforesaid Justice Abusadat Mohammad Sayem, by the Third Proclamation issued on November 29, 1976, enabling the said Major General Ziaur Rahman, to exercise all the powers of the Chief Martial Law Administrator, was beyond the ambit of the Constitution.
12. The nomination of Major General Ziaur Rahman, BU to become the President of Bangladesh by Justice Abusadat Mohammad Sayem, the assumption of office of the President of Bangladesh by Major General Ziaur Rahman, BU, were without lawful authority and without jurisdiction.
13. The Referendum Order, 1977 (Martial Law Order No 1 of 1977), published in Bangladesh Gazette on 1st May, 1977, is unknown to the Constitution, being made only to ascertain the confidence of the people of Bangladesh in one person, namely, Major General Ziaur Rahman, BU.
14. All Proclamations, Martial Law Regulations and Martial Law Orders made during the period from August 15, 1975 to April 9, 1979, were illegal, void and non est because:
i) Those were made by persons without lawful authority, as such, without jurisdiction,
ii) The constitution was made subordinate and subservient to those Proclamations, Martial Law Regulations and Martial Law Orders,
iii) Those provisions disgraced the Constitution which is the embodiment of the will of the people of Bangladesh, as such, disgraced the people of Bangladesh also,
iv) From August 15, 1975 to April 7, 1979, Bangladesh was ruled not by the representatives of the people but by the usurpers and dictators, as such, during the said period the people and their country, the Republic of Bangladesh, lost its sovereign republic character and was under the subjugation of the dictators,
v) From November 1975 to March, 1979, Bangladesh was without any Parliament and was ruled by the dictators, as such, lost its democratic character for the said period.
vi) The Proclamations etc., destroyed the basic character of the Constitution, such as, change of the secular character, negation of Bangalee nationalism, negation of Rule of law, ouster of the jurisdiction of Court, denial of those constitute seditious offence.
15. Paragraph 3A was illegal, firstly because it sought to validate the Proclamations, MLRs and MLOs which were illegal, and secondly, Paragraph 3A, made by the Proclamation Orders, as such, itself was void.
16. The Parliament may enact any law but subject to the Constitution. The Constitution (Fifth Amendment) Act, 1979 is ultra vires, because:
Firstly, Section 2 of the Constitution (Fifth Amendment) Act, 1979, enacted Paragraph 18, for its insertion in the Fourth Schedule to the Constitution, in order to ratify, confirm and validate the Proclamations, MLRs and MLOs etc. during the period from August 15, 1975 to April 9, 1979. Since those Proclamations, MLRs, MLOs etc., were illegal and void, there were nothing for the Parliament to ratify, confirm and validate.
Secondly, the Proclamations etc, being illegal and constituting offence, its ratification, confirmation and validation, by the Parliament were against common right and reason.
Thirdly, the Constitution was made subordinate and subservient to the Proclamations etc.
Fourthly, those Proclamations etc. destroyed its basic features.
Fifthly, ratification, confirmation and validation do not come within the ambit of ‘amendment’ in Article 142 of the Constitution.
Sixthly, lack of long title which is a mandatory condition for amendment, made the amendment void.
Seventhly, The Fifth Amendment was made for a collateral purpose which constituted a fraud upon the People of Bangladesh and its Constitution.
17. The Fourth Schedule as envisaged under Article 150 is meant for transitional and temporary provisions, since Paragraph 3A and 18, were neither transitional nor temporary, the insertion of those paragraphs in the Fourth Schedule are beyond the ambit of Article 150 of the Constitution.
18. The turmoil or crisis in the country is no excuse for any violation of the Constitution or its deviation on any pretext. Such turmoil or crisis must be faced and quelled within the ambit of the Constitution and the laws made thereunder, by the concerned authorities, established under the law for such purpose.
19. Violation of the Constitution is a grave legal wrong and remains so for all time to come. It cannot be legitimised and shall remain illegitimate forever, however, on the necessity of the State only, such legal wrongs can be condoned in certain circumstances, invoking the maxims, Id quod Alias Non Est Licitum, Necessitas Licitum Facit, salus populi est suprema lex and salus republicate est suprema lex.
20. As such, all acts and things done and actions and proceedings taken during the period from August 15, 1975 to April 9, 1979, are condoned as past and closed transactions, but such condonations are made not because those are legal but only in the interest of the republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.
21. Condonations of provisions were made, among others, in respect of provisions, deleting the various provisions of the Fourth Amendment but no condonation of the provisions was allowed in respect of omission of any provision enshrined in the original Constitution. The Preamble, Article 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condonation is allowed in respect of change of any of these provisions of the Constitution. Besides, Article 95, as amended by the Second Proclamation Order No IV of 1976, is declared valid and retained.
We further declare:
i) The Constitution (Fifth Amendment) Act, 1979 (Act 1 of 1979) is declared illegal and void ab initio, subject to condonations of the provisions and actions taken thereon as mentioned above.
ii) The “ratification and confirmation” of The Abandoned Properties (Supplementary Provisions) Regulation, 1977 (Martial Law Regulation No VII of 1977) and Proclamations (Amendment) Order, 1977 (Proclamation Order No 1 of 1977) with regard to insertion of Paragraph 3A to Fourth Schedule of the Constitution by Paragraph 18 of the Fourth Schedule of the Constitution added by the Constitution (Fifth Amendment) Act, 1979 (Act 1 of 1979), is declared to have been made without lawful authority and is of no legal effect.
We further direct the respondents to handover the physical possession Hall at 11, Wiseghat, Dhaka, in favour of the Petitioners, within 60 (Sixty) days from the date of receipt of the copy of this Judgment and Order.
In the result, the Rule is made absolute but without any order as to costs.
Before parting with the case, I would like to express my deep gratitude to the learned Advocates appearing in this case for their unfailing assistance to us. I have enriched my knowledge by their profound learning and experience. I would like to put it on record my deep appreciation for all of them.