Fifth Amendment to the Constitution of Bangladesh

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The Fifth Amendment to the Constitution of Bangladesh ratified and confirmed all proclamations, orders, regulations and laws, and amendments, additions, modifications, substitutions and omissions made in the constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by the authorities when the country was under martial law. [1] [2] It was passed on 6 April 1979 by the newly convened parliamentary session led by President Ziaur Rahman. [1]

Contents

Background

With the assassination of President Sheikh Mujibur Rahman on 15 August 1975, his autocratic one-party state was to put to an end and democratic republicanism was restored by a military-backed presidency with proclamation of martial law in a state of emergency. Khondaker Mostaq Ahmad, the new president, under martial law, issued a proclamation to amend the Constitution in order to omit the provision for the legal basis of one-party system. [3] His successor, former chief justice President Abu Sadat Mohammad Sayem issued a number of proclamations. The first one on 31 December 1975 amended Articles 66 and 122 of the Constitution, which disenfranchised those convicted under the Bangladesh Collaborators (Special Tribunal) Order 1972 from being elected as members of parliament and registered as voters. [3] This notably included Shah Azizur Rahman, who later was prime minister under President Ziaur Rahman and his vice-president and successor Abdus Sattar.

The next two proclamations amended Article 6 and omitted the proviso to Article 38 to officially include the non-Bengalis of the country as citizens, and Muslim nationalist and far-right political parties as legal associations. [3] The final proclamation restored the enforcement of fundamental rights through the power of the High Court Division and substituted the parts regarding the judiciary. [3]

When Ziaur Rahman assumed acting presidency on Sayem's resignation, he made a proclamation amending the Preamble to the Constitution based on his omission of Article 12 and amendment of Article 8 to de-secularise state policy, substituting Articles 9 and 10 with new articles to remove proposals for Bengali nationalism and economic socialism, and inserting a clause to encourage fraternal policy towards Muslim nations. [3] When elected as president in 1978, he issued a second proclamation that removed the provision of absolute veto power of the president introduced by Mujib, inserted authorization of presidential expenditure in some cases with or without parliamentary approval, amendments regarding the power of the judiciary, as well as addition of a proviso of referendum regarding fundamental amendments to the Constitution. [3]

In 1979, after full restoration of multi-party democracy by President Ziaur Rahman, the country's second parliamentary term convened in 1979 which passed the amendment.

Effects

The following lists the effects of the amendment: [4]

Supreme Court decision and controversy

On 29 August 2005, the High Court Division of the Supreme Court of Bangladesh, in a landmark verdict, decided that the amendment is illegal. On 25 May 2009, two leave-to-appeal petitions, one of which was filed by three SC lawyers and the other by the secretary-general of Zia's party, the BNP, were filed with the SC against the verdict. [7] On 2 February 2010, with Mujib's party, the Awami League, in power during the second Hasina ministry, the verdict was upheld by the SC's Appellate Division with some exceptions. [5] [8] Moudud Ahmed, barrister, law minister of the Bangladesh Nationalist Party government, and former Prime Minister of Bangladesh, said that he feared a constitutional vacuum would be created by the SC decision and told the court that Zia made the necessary amendment to the constitution in accordance with law, as the people of the country had given him the mandate for it through a referendum. [7] He also believed that the judgment reflects the judges' personal political views. [7]

Fifteenth amendment

Regarding the changes made by the fifth amendment, the fifteenth amendment, passed without a referendum or serious deliberations on 25 June 2011, [9] omitted paragraph 18 of the Fourth Schedule, [10] regarding the actions taken under martial law, thus technically legalising Mujibur Rahman's one-party state and outlawing the martial law governments, along with making the judiciary and parliament subservient to the President and eliminating fundamental rights, and proceeded to

Notes

  1. ↑ In the name of God, the Merciful and the Compassionate

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References

  1. 1 2 Islam, Sirajul; Miah, Sajahan; Khanam, Mahfuza; Ahmed, Sabbir, eds. (2012). "Constitutional Amendments". Banglapedia: the National Encyclopedia of Bangladesh (Online ed.). Dhaka, Bangladesh: Banglapedia Trust, Asiatic Society of Bangladesh. ISBN   984-32-0576-6. OCLC   52727562. OL   30677644M . Retrieved 19 September 2024.
  2. ↑ Karzon, Sheikh Hafizur Rahman. "Law and Our Rights: The Fifth Amendment". The Daily Star. Retrieved 2021-04-16.
  3. 1 2 3 4 5 6 Islam, Sirajul; Miah, Sajahan; Khanam, Mahfuza; Ahmed, Sabbir, eds. (2012). "Proclamation". Banglapedia: the National Encyclopedia of Bangladesh (Online ed.). Dhaka, Bangladesh: Banglapedia Trust, Asiatic Society of Bangladesh. ISBN   984-32-0576-6. OCLC   52727562. OL   30677644M . Retrieved 19 September 2024.
  4. ↑ 5th Amendment Case
  5. 1 2 Liton, Shakhawat (22 July 2010). "The depth of 5th amendment". The Daily Star. Retrieved 16 April 2021.
  6. ↑ Wohab, Abdul (27 May 2021). ""Secularism" or "no-secularism"? A complex case of Bangladesh". Cogent Social Sciences. 7 (1). doi: 10.1080/23311886.2021.1928979 . Retrieved 31 August 2024.
  7. 1 2 3 "Moudud fears constitutional vacuum". The Daily Star. 28 January 2010.
  8. ↑ Manik, Julfikar Ali (2010-08-25). "5th amendment verdict paves way for justice". The Daily Star. Retrieved 2021-04-16.
  9. ↑ Majumdar, Badiul Alam (8 February 2023). "The Constitutionality of 15th Amendment". The Daily Star.
  10. ↑ Fourth Schedule
  11. ↑ "The Constitution of the People's Republic of Bangladesh". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  12. ↑ "The Constitution of the People's Republic of Bangladesh - 8. Fundamental principles". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  13. ↑ "The Constitution of the People's Republic of Bangladesh - 142. Power to amend any provision of the Constitution". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  14. ↑ "The Constitution of the People's Republic of Bangladesh - 6. Citizenship". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  15. ↑ "The Constitution of the People's Republic of Bangladesh - 9. Nationalism". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  16. ↑ "The Constitution of the People's Republic of Bangladesh - 12. Secularism and freedom of religion". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  17. ↑ "The Constitution of the People's Republic of Bangladesh - 10. Socialism and freedom from exploitation". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  18. ↑ "The Constitution of the People's Republic of Bangladesh - 66. Qualifications and disqualifications for election to Parliament". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  19. ↑ "The Constitution of the People's Republic of Bangladesh - 122. Qualifications for registration as voter". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  20. ↑ "The Constitution of the People's Republic of Bangladesh - 38. Freedom of association". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
  21. ↑ "The Constitution of the People's Republic of Bangladesh - 25. Promotion of international peace, security and solidarity". Laws of Bangladesh. Legislative and Parliamentary Affairs Division, Government of Bangladesh.
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