Definition of constitution and fifth amendment

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Definition of constitution and fifth amendment

  1. 1. 1. Introduction:The establishment of the People’s Republic of Bangladesh has been amendednumber of times. The following is a brief explanation of those amendments. FirstAmendment was written in 1973, the Constitution Act 1973 was approvedinserting sub-art (3) in Article 47 whereby any law providing for the custody andtrial of war criminals was kept out of the purview of the terms of Part III relating tobasic rights.Second Amendment is the unique Constitution did not have provisionfor proclamation of state of emergency and preventive detention. By theConstitution of Second Amendment Act 1973, Article 33 was amended given thatdefensive detention and Part IXA was inserted conferring control on Parliamentand the supervisory to deal with emergency situations and provided that forsuspension of enforcement of the original rights during the time ofemergency. Third Amendment act was written in 1974, the Constitution (ThirdAmendment) Act 1974 was approved to give effect to the agreement with Indiagiving up the claim in respect of Berubari and retaining Dahagram andAngorpota. Fourth Amendment of The Constitution Act 1975 was passed on 25January 1975. key changes were brought into the Constitution by thisadjustment.The presidential form of government was introduced in point of theparliamentary method a one-party method in place of a multi-party system wasintroduced; the powers of the Parliament were reduced; the Judiciary lost much ofits freedom; the Supreme Court was rundown of its jurisdiction over the defenseand enforcement of basic rights. Last but not the list Fifth Amendment of theConstitution Act was passed by the Jatiya Sangsad on 6 April 1979. This Actamended the Fourth agenda to the establishment by adding a new section 18 thereto, which provided that all amendments, trappings, modification, substitution andomission made in the establishment during the period between 15 August 1975 and9 April 1979 by any Proclamation or Proclamation Order of the Martial Lawestablishment had been genuinely made and would not be called in question in orbefore any court or tribunal or authority on any ground whatsoever. The expression‘BISMILLAH-AR RAHMAN-AR-RAHIM’ was added before the preface of theConstitution. The expression ‘historic fight back for national liberation’ in theintroduction was replaced by the expression ‘a historic war for nationalindependence.’ One party system was replaced by combined system. Basicmorality of state policy was made as ‘complete trust and faith in the AlmightyAllah, independence, equality and socialism meaning financial and societal justice.In April 1979, the Parliament, by two-thirds majority passed the Fifth AmendmentAct to the Constitution. It brought many changes: restored fundamental rights,multiparty democracy and among others, gave Bangladesh Constitution an Islamiccharacter by deleting secularism and socialism from the Constitution. To give the
  2. 2. Constitution an Islamic character, the Preamble of the Constitution was changed inthe following manner. Pledging that the high ideals of absolute trust and faith inthe Almighty Allah shall be the fundamental principle of the Constitution. Byoperation of the original Article 38, no citizen had the right to form or take part inthe activities of any union which has been formed on the basis of religion with aview to pursuing a political purpose. The High Court, by declaring the FifthAmendment unlawful, has revived the old Article 38. For clear and betterconsiderate, we are quoting below the unique Article 38 and the amend one.Definition of Constitution:About the definition of constitution Aristotle Says, "Constitution is the way ofthe life the state has chosen for herself."According to the Lord Bryce "The aggregate off laws and customs under whichthe life of the state goes on."(Book-Essay on Flexible and Rigid Constitutions)Austin Ranney Says " A constitution is the whole body of fundamental rules,written and unwritten, and extra-legal, according to which a particular governmentoperates."According to K.C Wheare-"The constitution is the body of rules which and theorgans through which government power is exercised."C.F Strong says: “A constitution may by said to be a collection of principlesaccording to which powers of government, the rights of the government and therelation between the two are adjusted."Considering the above definitions we can say-"Constitution is the some basicrules that tell us how the country will be governed, how the citizens will be dealtwith, what will be the relations among they pillars of government.Fifth Amendment of Constitution, Bangladesh:Fifth, amendment was passed to establish the legality of the work of then chiefmartial law Administration from 15 January to 6 April 1979. The Amendment waspassed 6th April 1979. This Act amended the Fourth agenda to the constitution bycalculation a original subsection 18 thereto, which provided that all amendments,accompaniments, modifications, substitutions and omissions completed in theestablishment for the duration of the period between 15 August 1975 and 6 April
  3. 3. 1979. Fifth Amendment: The Fifth Amendment Act was passed by the JatiyaSangsad on 6 April 1979. This Act amended the Fourth Schedule to theConstitution by inserting a new paragraph 18. The effect of the amendment wasthat all amendments or repeals made in the Constitution from 15 August 1975 to 9April 1979 (inclusive) by any proclamation or Proclamation Order of the MartialLaw Authorities were deemed to have been validly made, and could not be calledinto question before any court or tribunal or other authority. (See also the SeventhAmendment.)Secularism in Bangladesh as prescribed in the constitution was never allowed to bepracticed in during Sheikh Mujibur Rahmans Awami League government. Undersecularism, Bangladesh suffered socially, culturally and politically. AfterNovember 1975 to 1977, when Bangladesh was under martial law, President andChief Martial Law Administrator Lieutenant General Ziaur Rahman passed apresidential decree that removed the principle of secularism from the permeable ofthe constitution and set in "absolute trust and faith in the Almighty Allah". Thedecree was later legitimized by the second parliament of Bangladesh.In January, 2010, the Bangladesh Supreme Court observed that parliament does notpossess any authority to suspend the constitution and proclaim martial law andhence, it cannot legitimize actions of martial law regimes. The judgment pavedway for restoring the original four fundamental principles declared in thepermeable of the constitution, including secularity.The Supreme Court followed with a July 2010 ruling scrapping provisions whichallowed political parties with a manifesto based on faith doctrine to flourish after1979. The ruling is expected to pave the way for a return to complete secularism inBangladeshi law.2. Part A: The Judgment of 5th Amendment:The judgment in 5th Amendment case declaring the 5th Amendment to theConstitution illegal delivered in 2005 by a Division Bench of the High CourtDivision has so far raise small hue and cry until May 4th 2009 when the AttorneyGeneral surprisingly moved a petition for withdrawing the leave-to-appeal petitionin such a case having grave lawful implications and interpretation. As the presentgovernment has decided not to continue the appeal any more, the AppellateDivision has allowed filing of petition for leave to petition by Khandker DelwarHossain and other two interveners. This write-up is intended to explore someconstitutional issues involved in the decision of 5th Amendment case and the
  4. 4. pitfalls in withdrawal of the appeal. Apart from declaring the 5th Amendmentillegal and unproductive, the judgment has also declared illegal and void themartial law proclamations, including the Martial Law Regulation 7 of 1977 thatdeals with deserted property, and all actions done under the martial law between15th August, 1975 and April 1979. The court held that usurpation of the statepower through martial law public statement, particularly by Khondoker MostaqueAhmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahmanwas unconstitutional. The judgment as it is reported in BLT Special Issue 2006contains 242 pages with 22 points in its functioning part. The judgment is mainlybased on a few doctrines under lawful jurisprudence policy of blunder orunconstitutionality, principle of vital structure, the power of judicial assess under awritten constitution and belief of oath of office under the establishment. Separatelyfrom the scrutiny of limits of some these doctrines; there are some jurisdictionaland lawful continuation issues which the Appellate part should examine in quality.Proclaiming the Fifth Amendment constitutional on the foundation of the raisedconcerns and penalty would equal to making a legal decision based on extra-legalkindness and the necessary finish turning the banned means into a permissible onea outstanding challenge in any justice method. Its effect would be to condone manyunacceptable elements of the Fifth Amendment. It would validate all acts of themartial law regimes, as well as those that vandalized and customized theconstitution to supply for their political ambition, distant the constitutionally fixedideals of the liberation war, recommend politics, stultified the development ofsupporting foundation, made policy difficult for politicians by creating politicalturncoat, installed pliable parliament through rigged election, introduced militaryoligarchy with democratic outfits, confined the rule of law for the rule of the jungleto prevail, and pursued sectarian interests.a) Constitutional Issues for Fifth Amendment:By declaring the Fifth Amendment illegal, the High Court has also interfered withthe connection of Bangladesh with other Muslim countries based on Islamicsolidarity. Article 25(2) of the creation provided as follows. For the last 33 years,this was the Constitutional basis for the Government of Bangladesh upon which itsrelations with the Muslim countries were established. The Fifth Amendment Casehas deleted this provision. This may indirectly affect the relationship ofBangladesh (which is the home of almost 10% of the entire Muslim population ofthe world, with the rest of the Islamic world. Finally, an anomaly, which waspresent in the original Constitution of 1972, has been re-introduced. Under Article6 of the unamended Constitution, the citizens of the Bangladesh were known asBangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The
  5. 5. Bangalees are one such ethnic group. As such the term Bangalee as used in theConstitution had the undesired effect of prima facie excluding other ethnic groupsfrom Bangladeshi citizenship. The Constitution Fifth Amendment Act, 1979having defined citizens of Bangladesh as Bangladeshi and not as Bangalees doesnot exclude other national groups from the citizenship of Bangladesh. However,the High Court Division deleted this beneficial amendment. The notion ofsecularism, being opposing to the history of the region and its nation, reference tosecularism in the bill were removed and in its place, unlimited trust and faith inAlmighty Allah were inserted. As such, in the 38 years since the framing of theConstitution, the citizens of the country have spoken their complete trust and faithin Almighty Allah for over 34 years. This place was changed by the High Courtjudgment. Every national shall have the right to form links or union, subject to anysensible limits imposed by law in the benefit of ethics or public order provide thatno being shall have the right to form, or be a element or if not take part in theactions of, any common or other involvement or union which in the name or on thebase of any religion has for its entity, or pursues, a political reason.b) The Constitutional Status of Fifth Amendment:The constitutional status of the martial law regime in the Fifth Amendment isidentical with that of the Yahya regime. In a offer to prevent the Asma Jilanipenalty, these regimes overly sought impunity under the same constitution thatthey proudly defied by force. It is a legal narrative to say that they consequent theirpower from martial law and to justify that authority under the constitution, whichoutlaw the past. The Supreme Court of Bangladesh, being the custodian andguardian of the constitution, and its judges being bound by their promise, arecompelled to defend the constitution. The concerns and penalty raised are extra-legal matters for the AD in deciding the constitutionality of the Fifth Amendment.However, there are palatable legal and managerial options available to addressthose concerns and consequences, particularly when an elected parliament isfunctional in Bangladesh.The changes brought about by the Fourth Amendmenthave almost dissipated. Nonetheless, any unwanted aspects of the 15 August 1975condition, say the form of government, may be invalidate and desirable aspects ofgovernance between 15 August 1975 and 9 April 1979 may be given validity bycurrent parliament. This precisely happened to the protection regulation 1975, anelement of the Fifth Amendment, which was invalidate by parliament tocommence the Bangabandhu murder trial Constitutionalism in Bangladesh hasbeen on a roller-coaster ride. Mischievous interference by the Fifth Amendment
  6. 6. stripped the constitution of its basic structural essence and coherence. The judicialscrutiny of its retrospective unconstitutionality is in order and indeed imperative togenerate a deterrent effect prospectively on those anxious of exploiting theconstitution as a political ploy to conceal their self-serving false agendas. It is theassigned and assumed responsibility of the Supreme Court to preserve theconstitutional value and self-respect as the supreme law of the Republic. There arecredible avenues for adjustments to avoid any legal vacuum, and ensure governingcontinuity and stability without abrupt interruptions from the past. For citizens, it isa matter of stark and reasoned choice between support and sympathy for lawful,and opposition and antipathy for illegal, behaviors. We should not exaggerate ourconcerns and consequences to serve vested interests and to frustrate our ongoingquest for a law-abiding culture so fundamental to our dignified existence.3. Part B: Amend the current Constitution:Fundamental principles of state policy after the Fifth Amendment the above fourprinciples were replaced in the Preamble and Art.8 of the Constitution by ‘absolutetrust and faith in the Almighty Allah,’ ‘nationalism’ Bangladeshi nationalism,‘democracy’ and ‘socialism meaning economic and social justice.’ ,Absolute trustand faith in the Almighty Allah’ was made to be the basis of all actions in Art8(1A) of the Constitution. Upon autonomy, Bangladesh issued the Adaptation ofExisting Laws Order No. 48 of 1972, adopt certain laws and acts (of Pakistan) thatwere in existence and applicable in the East Pakistan prior to independence (suchas the 1951 Citizenship Act) in order to fill up the gap created by the secession ofBangladesh from Pakistan. senate can choose and pick all acceptable elements ofthe Fifth Amendment and put a stamp of validity, even retrospectively if necessary.Parliament can also justify its action under the principle of necessity in the sameway it endorsed overstay of the immediately past caretaker government and theLaw Minister justified it as a matter of necessity. There are legal ways to overcomeany potential vacuum in continuity. There is nothing in law or the constitution thatprevents parliament from resorting to adaptation if the AD rejects the leave-to-appeal petition.a) What would happen to all the amendments:The Constitution confers power on Parliament to amend the Constitution. For suchamendment there are some procedural requirements. For the amendment ofConstitution the Bill must be passed by the votes of no less than two–third of thetotal number of members of Parliament. The President shall within seven days ofthe presentation of the Bill after being passed in Parliament with the requisite
  7. 7. majority assent to the Bill and if he fails to asset within that time he shall bedeemed to have assented the Bill. However, if the Bill seeks to amend thePreamble or any of the provisions of Article 8 (provision relating to fundamentalprinciples), 48 (provision relating to the President), 56 (provision relating toMinisters) or 142 (provision relating to ‘power to amend any provision of theConstitution’) the President shall refer it to a referendum and if the majority votesin the referendum are in favor of the amendment the President shall be deemed tohave assented to the Bill, otherwise the President shall be deemed to have withheldhis assent from the Bill The procedural requirements are mandatory and non-compliance of the requirement will render the amendment void. . Proclaiming theFifth Amendment constitutional on the basis of the raised concerns andconsequences would tantamount to making a legal decision based on extra-legalconsiderations and the justified end turning the prohibited means into a permissibleone a striking contradiction in any justice system. Its effect would be to condonemany unacceptable elements of the Fifth Amendment. It would validate all acts ofthe martial law regimes, including those that vandalised and tailored theconstitution to cater for their political ambitions, removed the constitutionallyentrenched ideals of the liberation war, recommunalised politics, stultified thedevelopment of political institutions, made politics difficult for politicians bycreating political turncoats, installed pliable parliament through rigged elections,introduced military oligarchy with democratic outfits, hamstrung the rule of lawfor the rule of the jungle to prevail, and pursued sectarian interests. Parliament mayenact an adaptation legislation to validate any laws and acts of those martial lawregimes currently in force with a view to avoid any legal vacuum and non-continuity in governmental authorities. Precedents of such adoption exist in thelaw-making history of Bangladesh.4. Conclusion:If the judgment in the 5th amendment case is upheld, some important decisions bythe Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. ChiefElection Commissioner, Haji Jaynal Abedin V. State, Jamil Haque V. Bangladesh,Nasiruddin V. Bangladesh, Khandakar Mostaque Ahmed V. Bangladesh,Khandker Ehtesamuddin Ahmed V. Bangladesh, Bangladesh V. Mahbubur Rashid,Presidents Secretariat V. K. Mahtabuddin Ahmed, Nasir Kader Siddiqui V.Bangladesh will be affected as these judgment accepted that martial lawproclamation, regulation etc, were supreme law and the Constitution lost itscharacter as supreme law. Constitution is the supreme law. It is the reflection ofpeoples’ wishes and desires. The government should think very carefully beforemaking any fundamental changes in it. It should refrain from making major
  8. 8. changes unless a national consensus is reached. History tells us fundamentalchanges of the Constitution by the unilateral action of the government have notbrought fruitful result. Rather, it created bitter hostility and division within thecountry when stability and unity were immensely needed for national prosperity. Inany event, if any fundamental changes are to be made in the current Constitution,the prescribed procedure outlined in the very Constitution must be followed.

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