Appeal hearing on HC verdict referred to CJ
Wednesday, 26 March 2008

5th amendment

A three-member appellate bench of the Supreme Court on Monday referred to the Chief Justice for ordering the crucial hearing in a bigger bench on government appeal against the High Court judgment proscribing the Fifth Amendment to the Constitution, reports UNB.

When the long-pending government appeal came up for hearing, the bench, headed by Justice M Fazlul Karim, suo moto passed the order of referral of the appeal hearing that involves important constitutional interpretations, as the Fifth Amendment had ratified regimes since the August 15, 1975 changeover till April 9, 1979.

Court sources said the Appellate Bench took the decision since the matter involves constitutional interpretations and the bench felt the necessity of hearing such matter of great importance by a greater bench.

On August 29, 2005, the High Court declared ''illegal'' the fifth amendment to the constitution, adopted in Parliament, meaning the rules by Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj General Ziaur Rahman since August 15, 1975 till April 9, 1979 were unlawful.

The verdict had come upon a decades-old writ petition challenging the Martial Law Regulation (MLR) 7 of 1977, issued to legalize all acts of the martial-law governments up till then. In the verdict, the HC had observed that martial law as a whole is ''illegal and unconstitutional'' and all the actions, laws, and rules made under martial law are ''illegal''.
"The changes of government between August 15, 1975 and before the national elections of 1991 were not carried out constitutionally," the HC verdict had said.

A High Court bench comprising Justice ABM Khairul Haque and Justice ATM Fazle Kabir also had observed that the constitution does not permit anyone to assume power by any means other than the ones mentioned in the constitution. "If anyone does so, it will amount to sedition."

The court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 had been declared illegal, the history cannot be altered. "Many of these illegal acts were done in public interest." From this perspective, the court ''condones'' some of these actions that could have been done in line with the constitution.

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