HC scraps part
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Nation Sheikh Mujibur Rahman at all government offices.
The historic speech of Sheikh Mujibur Rahman on March 7, 1971, was placed in the fifth schedule of Bangladesh Constitution through the 15th amendment.
Yesterday, the HC bench also struck down articles 7 (A), 7 (B), 44(2) and 58A of the constitution, declaring them void and unconstitutional.
Article 7(A) of the constitution is regarding the use of force and other unconstitutional means to “abrogate, repeal or suspend” the constitutions or any of its articles.
Article 7(B) makes certain parts of the constitution unamendable “by way of insertion, modification, substitution, repeal or by any other means”.
Article 44(2) says, “Without prejudice to the powers of the High Court Division under article 102, parliament may by law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.”
In the judgement yesterday, the HC bench said even though article 142 of the 12th amendment ensured the provision for referendums, it was abolished by the 15th amendment.
The HC reinstated article 142, saying its scrapping went against the basic structure of the constitution.
In the verdict, the HC said a total of 54 changes, modifications, and substitutions have been brought to the constitution through the 15th amendment.
The court did not delve into other provisions of the 15th amendment that deal with state principles, including secularism, socialism, state religion, nationalism; the issues of displaying the portrait of father of the nation, historic speech of Bangabandhu Sheikh Mujibur Rahman on March 7, 1971; increasing the number of reserved seats for women in parliament from 45 to 50; protection and development of culture and tradition of the tribes, minor races, ethnic sects and communities; protection and improvement of environment and biodiversity; and article 116 of the constitution regarding presidential control over lower court discipline.
The future parliament will decide on these issues on the basis of people’s opinions, said Justice Farah Mahbub.
Article 116 says: “The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”
The HC bench said it would not say anything about article 116 as a rule questioning its constitutionality was pending with the court.
The court also clarified that the interim government is not a caretaker government.
It said the current government is different as it was formed by the president after he sought the opinion of the Appellate Division under article 106 of the constitution.
Article 106 says, “If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.”
Replying to a question, Attorney General Asaduzzaman, however, said the interim government can be renamed a caretaker government as the Appellate Division has given legitimacy to this government.
“For example, the district judges are termed as district judges when they deal with civil cases and the same judges are termed as district and sessions judges when they deal with the criminal cases. In the same way, when the persons of this interim government will function for the caretaker government the government will be termed caretaker government,” the attorney general said.
The HC earlier heard arguments on the three petitions for 12 working days.
One of the writ petitions was filed by Mofazzal Hossain, a freedom fighter from Narayanpara of Naogaon.
On October 19, the HC bench issued a rule asking the government to explain why the 15th amendment should not be declared unconstitutional. It also questioned why actions taken under the amendment should not be invalidated.
On August 19, another HC bench led by Justice Naima Haider, now on leave, issued a similar rule following a writ petition filed by five Badiul Alam Majumdar, Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan, and Zahrah Rahman.
Apart from them and the state, a few political parties, including the BNP, Jamaat, Gono Forum, and some SC lawyers placed arguments before the HC against the 15th amendment.
LAWYERS’ REACTIONS
After the HC delivered the judgment yesterday, Attorney General Md Asaduzzaman demanded the trial of former chief justices ABM Khairul Haque and Syed Mahmud Hossain for their role in abolishing the caretaker government system.
He said, “They ruined the judiciary. They must be punished.”
Briefing the press at his office, Asaduzzaman said a seven-member bench led by Justice ABM Khairul Haque announced that the caretaker system was unconstitutional, but two more elections could be held under such a government.
“But 16 months later, he reversed his judgment when parliament amended the constitution omitting the caretaker government system,” he said, adding that Justice Syed Mahmud Hossain supported Justice ABM Khairul Haque.
He said Justice Mahmud was instrumental in the destruction of the judiciary.
Due to the judges’ roles, he said, democracy was exiled, crimes against humanity and enforced disappearances happened, and cases were filed against dead people.
The attorney general said it is possible to conduct the next two elections under the caretaker government system even if review petitions remain pending with the Appellate Division.
“There were two parts of Khairul Haque’s judgment. One was about whether the caretaker government was legal or illegal. In that part, there was a divided judgment, but there was no disagreement among judges on the issue of conducting the next two elections under caretaker government,” he added.
Quoting the HC observation, Sharif Bhuiyan, principal lawyer for a writ petitioner, said as democracy and elections are basic structures of the constitution, the caretaker government system became a part of it.
“We filed a review petition on the judgment of Justice Khairul Haque with the Appellate Division which is pending and scheduled for a hearing in the third week of January. If the Appellate Division delivers a verdict in our favour, only then we would be able to say the caretaker government system has been restored,” he said.
BNP’s Vice-Chairman Zainul Abedin said, “People’s will is the basis for changing the constitution, but the previous government did not bother with the people’s will while making the 15th amendment. They made the amendment by putting pressure on the court.”
Barrister Kaiser Kamal said, “The 15th amendment was the final solution for the Awami League to stay in power and for Sheikh Hasina to stay as prime minister forever.”
Lawyer Mohammad Shishir Manir said, “Democracy is the basic structure of our constitution, and the court said the caretaker government also became a basic structure of the constitution since it is not possible to conduct free, fair and impartial elections without such a government.”