Full observation of High Court on Fifth Amendment

The High Court made 22-point observations in its historical verdict that declared the fifth amendment to the constitution illegal. The Daily Star was provided with the observations by A Hossain and Associates, the counsel firm of the petitioners.

1. Constitution of Bangladesh is the embodiment of the will of the people of the Republic of Bangladesh.
2. Constitution is the supreme law and all other laws and actions must confirm to it.

3. Any law or action made in violation of the constitution is void.
4. All functionaries of the republic owe its existence to the Constitution.
5. 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.
6. Likewise, the defence services, the civil services and all other services of the republic owe its existence to the constitution and must obey its commands.
7. Proclamation of emergency can only be made by the president of the republic on the advice of the prime minister, in case of imminent danger to the security of the republic.
8. No person can declare martial law; if any body does, he will be liable for high treason against the republic.
9. 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 them liable for high treason.
10. The taking over of powers of the Government of People's Republic of Bangladesh with effect from the morning of August 15, 1975 by Khandaker Mustaque Ahmed, an usurper, placing Bangladesh under martial law and his assumption of the office of the president of Bangladesh on August 20, 1975, were in clear violation of the constitution, as such, illegal, without lawful authority and without jurisdiction, consequently all his subsequent actions as the president of Bangladesh were illegitimate and void.
11. The making over of the office of president of Bangladesh, in favour of Justice Abu Sadaat Mohammad Sayem, on November 6, 1975, was beyond the ambit of the constitution.
12. The taking over of the office of president of Bangladesh and his such entering in the said office on November 6, 1975, by Justice Abu Sadaat Mohammad Sayem and his assumption of the chief martial law administrator and appointment of the deputy chief martial law administrators and the proclamation of November 8, 1975, were all in violation of the constitution, as such, all his subsequent functions and actions as such president and or the chief martial law administrator were illegitimate.
13. The handing over of the office of martial law administrator to Major General Ziaur Rahman BU, PSC, by the aforesaid Abu Sadaat Mohammad Sayem by the Third Proclamation on November 29, 1976, enabling the said Major General Ziaur Rahman to exercise all the powers of the chief martial law administrator being beyond the ambit of the constitution, was illegal, without lawful authority and without jurisdiction. Consequently, all his subsequent functions and actions as such (chief martial law administrator were illegitimate.
14. The nomination of Major General Ziaur Rahman, BU, to become the president of Bangladesh by Abu Sadaat Mohammad Sayem, the nominated president of Bangladesh, on April 21, 1977, and also the handing over of the office of president to him, being beyond the ambit of the constitution, was illegal, without lawful authority and without jurisdiction.
15. The assumption of office of the president of Bangladesh by Major General Ziaur Rahman, BU, on April 21, 1977, on nomination being beyond the ambit of the constitution was illegal, without any lawful authority. Consequently, all his subsequent functions and actions as such president of Bangladesh, without lawful authority and without Jurisdiction.
16. Since addition of Paragraph 3A to the fourth schedule to the constitution by the Proclamations (Amendment) Order 1977 (Proclamations Order No. 1 of 1977) dated April 23, 1977, and as amended by the Second Proclamation Order No. IV of 1978, was made by a usurper and a nominated president, the Paragraph 3A to the fourth schedule is illegal, void…in the eye of law.
17. The Referendum Order, 1977 (Martial Law Order No 1 of 1977) published on May 1, 1977, 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.
18. Since Paragraph 18 to the fourth schedule (Transitional Provisions) of the constitution precluded judicial review defying and undermining the supremacy of the constitution, this provision is unconstitutional being beyond the power of parliament under Article 142 of the constitution.
19. MLRs including the MLR VII of 1977 are also illegal.
20. 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 a legal wrong can be condoned in certain circumstances, invoking the doctrine of Salus Populiest suprema lex.
21. Condonation of certain acts and provisions has been made as stated above but such condonations are made not because those are legal but only in the interest of the republic, those shall remain illegitimate forever.
22. Condonations of provisions were made, among others, in respect of provisions, deleting the different provisions of Fourth Amendment. Condonation of provisions were also made in respect of the words "Bismillah-hir-Rahmanir Rahim" but the provision deleting the original four fundamental principles of the republic as enshrined in the original constitution was not condoned.
The Daily Star
Thu. September 01, 2005