The Supreme Court (SC) yesterday permitted BNP Secretary General Khandaker Delwar Hossain to file a leave-to-appeal petition with the SC against the High Court (HC) judgment declaring the fifth amendment to the constitution illegal that endorsed takeover of late president Ziaur Rahman and all his acts sinceAugust 15,1975.
The seven-member full bench of the Appellate Division headed by Chief Justice MM Ruhul Amin also permitted three SC lawyers -Munshi Ahsan Kabir, Tajul Islam and Kamruzzaman Bhuiyan -- to file a similar petition with the SC.
The apex court asked Delwar and the lawyers to file separate leave-to-appeal petitions with the SC against the HC judgment within four weeks.
The court also said the government prayers for withdrawal of the pending leave-to-appeal petitions filed in
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2005 would be considered during the hearing of the petitions to be filed by Delwar and three SC lawyers.
After the delivery of the SC orders Attorney General (AG) Mahbubey Alam told the newsmen at his office the Appellate Division's earlier stay order on the HC judgment would continue till hearing of the leave-to-appeal petitions of Khandaker Delwar Hossain and the three Jamaat-e Islami lawyers- Munshi Ahsan Kabir, Tajul Islam and Kamruzzaman Bhuiyan.
He expressed frustration over the SC orders saying that he was seriously unhappy since the SC did not dismiss leave-to-appeal petitions filed by BNP-Jamaat government and Bangladesh Muktijoddha Kalyan Triist although he had prayed to the court for dismissal of those.
The AG commented that if the HC verdict on the fifth amendment to the constitution is not upheld highly ambitious army officers would get inspiration to usurp state powers and it would pave the way for martial law again in future.
Meanwhile Supreme Court Bar Association (SCBA) leaders protested the SC order and decided at an urgent meeting yesterday to fight a legal battle with the SC for upholding the HC verdict.
Khandaker Delwar Hossain filed an application on Sunday to become an intervener of the case to run an appeal with the SC against the HC verdict.
Earlier on March 4 this year, Munshi Ahsan Kabir, Tajul Islam and Kamruzzaman Bhuiyan jointly filed an application with the SC to become a party in this case against the HC verdict.
The Attorney General's office on Sunday prayed to the SC to withdraw the leave-to-appeals filed by BNP-Jamaat government and Bangladesh Muktijoddha Kalyan Trust after the HC delivered the verdict in 2005.
After hearing on the prayers the Appellate Division yesterday passed the orders.
At one stage of the hearing yesterday the SC asked advocate TH Khan, counsel for Delwar, to get his application corrected by making him (Delwar) a petitioner rather than an 'intervener' of the case.
Attorney General Mahbubey Alam then told the court that they had earlier approached this court for hearing the Bangabandhu Sheikh Mujibur Rahman murder case where some judges felt embarrassed but
the sajne SC .today asked Delwar to convert his application of intervener into a petition.
Mentioning the SC verdicts in the Halima Khatun, Dr Mohiuddin Faruk and Berubari cases TH Khan said there are a number of examples of granting leave to appeal to a third party against any HC verdict.
Senior legal expert Advocate Mahmudul Islam told the court that the SC has discretionary power as per article 103 of the constitution to grant the leave-to-appeal of a third party but the court should not go to that extent in this case.
Barrister M Amirul Islam told the court that if the leave is granted as per the decision of Halima Khatun case, the martial law would be upheld.
Barrister Ajmalul Hossain said, "If the SC grants the leave-to-appeal filed by a third party after so much long time of the HC verdict, a bad precedence will be established in the judiciary as the elected government has already prayed to the court to withdraw the pending leave-to-appeals."