Secularism--one of the four principles of the state to be restored in the constitution

5th Amendment Illegal
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Govt seeks withdrawal of appeal against HC verdict
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The attorney general's office yesterday prayed to the Supreme Court for withdrawing the pending leave-to-appeal petitions against the High Court judgment that had declared illegal the fifth amendment to the constitution which endorses late president Ziaur Rahman's takeover and all acts since August 15, 1975.

Attorney General Mahbubey Alam made the prayer on behalf of the government while Additional Attorney General M Enayetur Rahim moved a similar prayer on behalf of Bangladesh Muktijoddha Kalyan Trust.

The BNP-Jamaat coalition government and Bangladesh Muktijoddha Kalyan Trust had filed two separate leave-to-appeal petitions with the SC against the HC verdict, which came on August 29, 2005 following a writ petition filed by Bangladesh Italian Marble Works Company (BIMWC).

Meanwhile, BNP Secretary General Khandaker Delwar Hossain yesterday filed an application with the apex court to make him an intervener of this case so that he can run an appeal with the court against the HC verdict.

The seven-member full bench of the Appellate Division, headed by Chief Justice MM Ruhul Amin, held hearing on the question whether Khandaker Delwar can be made an intervener of this case after withdrawal prayers have been filed. The SC will hold further hearing on the issue today.

Attorney General Mahbubey Alam told the court that the present government has decided not to proceed with the leave-to-appeal petitions against the HC verdict as it believes that the HC judgment, which was delivered on facts, documents and correct information, was correct, legal and justified.

He told reporters at his office that if the HC verdict is upheld following their withdrawal prayers, secularism--one of the four principles of the state--will automatically be restored in the constitution.

He, however, said incorporation of Bismillahir Rahmanir Rahim or resting trust on the Almighty Allah in the preamble of the constitution will remain upheld since the HC in its judgment had not objected to incorporation of these in the fifth amendment to the constitution.

If the HC verdict is kept valid, nobody will dare to illegally occupy state power in the future, he said.

The top law officer of the state said a certain quarter has been trying to mislead the people by saying that Bismillahir Rahmanir Rahim will not remain in the constitution if the HC verdict is upheld.

A few BNP lawyers have moved an application with the SC aimed at allowing BNP Secretary General Khandaker Delwar Hossain to serve this purpose, he said, urging all to remain cautious about their moves.

Earlier yesterday, barrister Ajmalul Hossain, counsel for the writ petitioner, argued before the SC that the nation has been hijacked every time military has ruled the country.

He said after the prayer for withdrawing the leave-to-appeal petitions, none can pray to the court to be an intervener of the case.

Advocate TH Khan and barrister Moudud Ahmed, counsels for Delwar, told the court yesterday that if the HC verdict is upheld, the continuation of governments and their actions from August 15, 1975 to April 9, 1979 will be hampered and a serious constitutional vacuum will be created.

TH Khan said the SC has already settled all the disputes regarding the rules from August 15, 1975 to April 9, 1979 in its historic judgement of the eighth amendment case. After the Appellate Division's verdict, the HC had no authority to declare and cancel the fifth amendment to the constitution, he said.

He also said the fifth amendment to the constitution should be upheld for the continuation of the rules and actions of the then governments.

On August 29, 2005, the HC declared the fifth amendment to the constitution illegal, which meant the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.

The court passed the verdict in response to a writ petition filed by Masudul Alam on behalf of the BIMWC to reclaim a cinema hall at Waizghat in Dhaka it had lost during the martial law rule.

The BIMWC once owned the Moon Cinema Hall at Waizghat. After the independence, the cinema hall was announced abandoned and the government handed it over to the Muktijoddha Kalyan Trust.

Following a prayer from the then BNP-led government the Appellate Division stayed the HC verdict on September 1, 2005.

Monday, May 4, 2009
The Daily Star