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1. Introduction:

The establishment of the People’s Republic of Bangladesh has been amended
number of times. The following is a brief explanation of those amendments. First
Amendment was written in 1973, the Constitution Act 1973 was approved
inserting sub-art (3) in Article 47 whereby any law providing for the custody and
trial of war criminals was kept out of the purview of the terms of Part III relating to
basic rights.Second Amendment is the unique Constitution did not have provision
for proclamation of state of emergency and preventive detention. By the
Constitution of Second Amendment Act 1973, Article 33 was amended given that
defensive detention and Part IXA was inserted conferring control on Parliament
and the supervisory to deal with emergency situations and provided that for
suspension of enforcement of the original rights during the time of
emergency. Third Amendment act was written in 1974, the Constitution (Third
Amendment) Act 1974 was approved to give effect to the agreement with India
giving up the claim in respect of Berubari and retaining Dahagram and
Angorpota. Fourth Amendment of The Constitution Act 1975 was passed on 25
January 1975. key changes were brought into the Constitution by this
adjustment.The presidential form of government was introduced in point of the
parliamentary method a one-party method in place of a multi-party system was
introduced; the powers of the Parliament were reduced; the Judiciary lost much of
its freedom; the Supreme Court was rundown of its jurisdiction over the defense
and enforcement of basic rights. Last but not the list Fifth Amendment of the
Constitution Act was passed by the Jatiya Sangsad on 6 April 1979. This Act
amended the Fourth agenda to the establishment by adding a new section 18 there
to, which provided that all amendments, trappings, modification, substitution and
omission made in the establishment during the period between 15 August 1975 and
9 April 1979 by any Proclamation or Proclamation Order of the Martial Law
establishment had been genuinely made and would not be called in question in or
before any court or tribunal or authority on any ground whatsoever. The expression
‘BISMILLAH-AR RAHMAN-AR-RAHIM’ was added before the preface of the
Constitution. The expression ‘historic fight back for national liberation’ in the
introduction was replaced by the expression ‘a historic war for national
independence.’ One party system was replaced by combined system. Basic
morality of state policy was made as ‘complete trust and faith in the Almighty
Allah, independence, equality and socialism meaning financial and societal justice.
In April 1979, the Parliament, by two-thirds majority passed the Fifth Amendment
Act to the Constitution. It brought many changes: restored fundamental rights,
multiparty democracy and among others, gave Bangladesh Constitution an Islamic
character by deleting secularism and socialism from the Constitution. To give the
Constitution an Islamic character, the Preamble of the Constitution was changed in
the following manner. Pledging that the high ideals of absolute trust and faith in
the Almighty Allah shall be the fundamental principle of the Constitution. By
operation of the original Article 38, no citizen had the right to form or take part in
the activities of any union which has been formed on the basis of religion with a
view to pursuing a political purpose. The High Court, by declaring the Fifth
Amendment unlawful, has revived the old Article 38. For clear and better
considerate, 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 of
the life the state has chosen for herself."

According to the Lord Bryce "The aggregate off laws and customs under which
the 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 government
operates."

According to K.C Wheare-"The constitution is the body of rules which and the
organs through which government power is exercised."

C.F Strong says: “A constitution may by said to be a collection of principles
according to which powers of government, the rights of the government and the
relation between the two are adjusted."

Considering the above definitions we can say-"Constitution is the some basic
rules that tell us how the country will be governed, how the citizens will be dealt
with, 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 chief
martial law Administration from 15 January to 6 April 1979. The Amendment was
passed 6th April 1979. This Act amended the Fourth agenda to the constitution by
calculation a original subsection 18 thereto, which provided that all amendments,
accompaniments, modifications, substitutions and omissions completed in the
establishment for the duration of the period between 15 August 1975 and 6 April
1979. Fifth Amendment: The Fifth Amendment Act was passed by the Jatiya
Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the
Constitution by inserting a new paragraph 18. The effect of the amendment was
that all amendments or repeals made in the Constitution from 15 August 1975 to 9
April 1979 (inclusive) by any proclamation or Proclamation Order of the Martial
Law Authorities were deemed to have been validly made, and could not be called
into question before any court or tribunal or other authority. (See also the Seventh
Amendment.)

Secularism in Bangladesh as prescribed in the constitution was never allowed to be
practiced in during Sheikh Mujibur Rahman's Awami League government. Under
secularism, Bangladesh suffered socially, culturally and politically. After
November 1975 to 1977, when Bangladesh was under martial law, President and
Chief Martial Law Administrator Lieutenant General Ziaur Rahman passed a
presidential decree that removed the principle of secularism from the permeable of
the constitution and set in "absolute trust and faith in the Almighty Allah". The
decree was later legitimized by the second parliament of Bangladesh.

In January, 2010, the Bangladesh Supreme Court observed that parliament does not
possess any authority to suspend the constitution and proclaim martial law and
hence, it cannot legitimize actions of martial law regimes. The judgment paved
way for restoring the original four fundamental principles declared in the
permeable of the constitution, including secularity.

The Supreme Court followed with a July 2010 ruling scrapping provisions which
allowed political parties with a manifesto based on faith doctrine to flourish after
1979. The ruling is expected to pave the way for a return to complete secularism in
Bangladeshi law.

2. Part A: The Judgment of 5th Amendment:

The judgment in 5th Amendment case declaring the 5th Amendment to the
Constitution illegal delivered in 2005 by a Division Bench of the High Court
Division has so far raise small hue and cry until May 4th 2009 when the Attorney
General surprisingly moved a petition for withdrawing the leave-to-appeal petition
in such a case having grave lawful implications and interpretation. As the present
government has decided not to continue the appeal any more, the Appellate
Division has allowed filing of petition for leave to petition by Khandker Delwar
Hossain and other two interveners. This write-up is intended to explore some
constitutional issues involved in the decision of 5th Amendment case and the
pitfalls in withdrawal of the appeal. Apart from declaring the 5th Amendment
illegal and unproductive, the judgment has also declared illegal and void the
martial law proclamations, including the Martial Law Regulation 7 of 1977 that
deals with deserted property, and all actions done under the martial law between
15th August, 1975 and April 1979. The court held that usurpation of the state
power through martial law public statement, particularly by Khondoker Mostaque
Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman
was unconstitutional. The judgment as it is reported in BLT Special Issue 2006
contains 242 pages with 22 points in its functioning part. The judgment is mainly
based on a few doctrines under lawful jurisprudence policy of blunder or
unconstitutionality, principle of vital structure, the power of judicial assess under a
written constitution and belief of oath of office under the establishment. Separately
from the scrutiny of limits of some these doctrines; there are some jurisdictional
and lawful continuation issues which the Appellate part should examine in quality.
Proclaiming the Fifth Amendment constitutional on the foundation of the raised
concerns and penalty would equal to making a legal decision based on extra-legal
kindness and the necessary finish turning the banned means into a permissible one
a outstanding challenge in any justice method. Its effect would be to condone many
unacceptable elements of the Fifth Amendment. It would validate all acts of the
martial law regimes, as well as those that vandalized and customized the
constitution to supply for their political ambition, distant the constitutionally fixed
ideals of the liberation war, recommend politics, stultified the development of
supporting foundation, made policy difficult for politicians by creating political
turncoat, installed pliable parliament through rigged election, introduced military
oligarchy with democratic outfits, confined the rule of law for the rule of the jungle
to prevail, and pursued sectarian interests.

a) Constitutional Issues for Fifth Amendment:

By declaring the Fifth Amendment illegal, the High Court has also interfered with
the connection of Bangladesh with other Muslim countries based on Islamic
solidarity. 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 its
relations with the Muslim countries were established. The Fifth Amendment Case
has deleted this provision. This may indirectly affect the relationship of
Bangladesh (which is the home of almost 10% of the entire Muslim population of
the world, with the rest of the Islamic world. Finally, an anomaly, which was
present in the original Constitution of 1972, has been re-introduced. Under Article
6 of the unamended Constitution, the citizens of the Bangladesh were known as
Bangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The
Bangalees are one such ethnic group. As such the term Bangalee as used in the
Constitution had the undesired effect of prima facie excluding other ethnic groups
from Bangladeshi citizenship. The Constitution Fifth Amendment Act, 1979
having defined citizens of Bangladesh as Bangladeshi and not as Bangalees does
not exclude other national groups from the citizenship of Bangladesh. However,
the High Court Division deleted this beneficial amendment. The notion of
secularism, being opposing to the history of the region and its nation, reference to
secularism in the bill were removed and in its place, unlimited trust and faith in
Almighty Allah were inserted. As such, in the 38 years since the framing of the
Constitution, the citizens of the country have spoken their complete trust and faith
in Almighty Allah for over 34 years. This place was changed by the High Court
judgment. Every national shall have the right to form links or union, subject to any
sensible limits imposed by law in the benefit of ethics or public order provide that
no being shall have the right to form, or be a element or if not take part in the
actions of, any common or other involvement or union which in the name or on the
base 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 is
identical with that of the Yahya regime. In a offer to prevent the Asma Jilani
penalty, these regimes overly sought impunity under the same constitution that
they proudly defied by force. It is a legal narrative to say that they consequent their
power from martial law and to justify that authority under the constitution, which
outlaw the past. The Supreme Court of Bangladesh, being the custodian and
guardian of the constitution, and its judges being bound by their promise, are
compelled 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 address
those concerns and consequences, particularly when an elected parliament is
functional in Bangladesh.The changes brought about by the Fourth Amendment
have almost dissipated. Nonetheless, any unwanted aspects of the 15 August 1975
condition, say the form of government, may be invalidate and desirable aspects of
governance between 15 August 1975 and 9 April 1979 may be given validity by
current parliament. This precisely happened to the protection regulation 1975, an
element of the Fifth Amendment, which was invalidate by parliament to
commence the Bangabandhu murder trial Constitutionalism in Bangladesh has
been on a roller-coaster ride. Mischievous interference by the Fifth Amendment
stripped the constitution of its basic structural essence and coherence. The judicial
scrutiny of its retrospective unconstitutionality is in order and indeed imperative to
generate a deterrent effect prospectively on those anxious of exploiting the
constitution as a political ploy to conceal their self-serving false agendas. It is the
assigned and assumed responsibility of the Supreme Court to preserve the
constitutional value and self-respect as the supreme law of the Republic. There are
credible avenues for adjustments to avoid any legal vacuum, and ensure governing
continuity and stability without abrupt interruptions from the past. For citizens, it is
a matter of stark and reasoned choice between support and sympathy for lawful,
and opposition and antipathy for illegal, behaviors. We should not exaggerate our
concerns and consequences to serve vested interests and to frustrate our ongoing
quest 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 four
principles were replaced in the Preamble and Art.8 of the Constitution by ‘absolute
trust and faith in the Almighty Allah,’ ‘nationalism’ Bangladeshi nationalism,
‘democracy’ and ‘socialism meaning economic and social justice.’ ,Absolute trust
and faith in the Almighty Allah’ was made to be the basis of all actions in Art
8(1A) of the Constitution. Upon autonomy, Bangladesh issued the Adaptation of
Existing Laws Order No. 48 of 1972, adopt certain laws and acts (of Pakistan) that
were in existence and applicable in the East Pakistan prior to independence (such
as the 1951 Citizenship Act) in order to fill up the gap created by the secession of
Bangladesh from Pakistan. senate can choose and pick all acceptable elements of
the 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 same
way it endorsed overstay of the immediately past caretaker government and the
Law Minister justified it as a matter of necessity. There are legal ways to overcome
any potential vacuum in continuity. There is nothing in law or the constitution that
prevents 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 such
amendment there are some procedural requirements. For the amendment of
Constitution the Bill must be passed by the votes of no less than two–third of the
total number of members of Parliament. The President shall within seven days of
the presentation of the Bill after being passed in Parliament with the requisite
majority assent to the Bill and if he fails to asset within that time he shall be
deemed to have assented the Bill. However, if the Bill seeks to amend the
Preamble or any of the provisions of Article 8 (provision relating to fundamental
principles), 48 (provision relating to the President), 56 (provision relating to
Ministers) or 142 (provision relating to ‘power to amend any provision of the
Constitution’) the President shall refer it to a referendum and if the majority votes
in the referendum are in favor of the amendment the President shall be deemed to
have assented to the Bill, otherwise the President shall be deemed to have withheld
his assent from the Bill The procedural requirements are mandatory and non-
compliance of the requirement will render the amendment void. . Proclaiming the
Fifth Amendment constitutional on the basis of the raised concerns and
consequences would tantamount to making a legal decision based on extra-legal
considerations and the justified end turning the prohibited means into a permissible
one a striking contradiction in any justice system. Its effect would be to condone
many unacceptable elements of the Fifth Amendment. It would validate all acts of
the martial law regimes, including those that vandalised and tailored the
constitution to cater for their political ambitions, removed the constitutionally
entrenched ideals of the liberation war, recommunalised politics, stultified the
development of political institutions, made politics difficult for politicians by
creating political turncoats, installed pliable parliament through rigged elections,
introduced military oligarchy with democratic outfits, hamstrung the rule of law
for the rule of the jungle to prevail, and pursued sectarian interests. Parliament may
enact an adaptation legislation to validate any laws and acts of those martial law
regimes currently in force with a view to avoid any legal vacuum and non-
continuity in governmental authorities. Precedents of such adoption exist in the
law-making history of Bangladesh.

4. Conclusion:

If the judgment in the 5th amendment case is upheld, some important decisions by
the Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. Chief
Election 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 law
proclamation, regulation etc, were supreme law and the Constitution lost its
character as supreme law. Constitution is the supreme law. It is the reflection of
peoples’ wishes and desires. The government should think very carefully before
making any fundamental changes in it. It should refrain from making major
changes unless a national consensus is reached. History tells us fundamental
changes of the Constitution by the unilateral action of the government have not
brought fruitful result. Rather, it created bitter hostility and division within the
country when stability and unity were immensely needed for national prosperity. In
any 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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Definition of constitution and fifth amendment

  • 1. 1. Introduction: The establishment of the People’s Republic of Bangladesh has been amended number of times. The following is a brief explanation of those amendments. First Amendment was written in 1973, the Constitution Act 1973 was approved inserting sub-art (3) in Article 47 whereby any law providing for the custody and trial of war criminals was kept out of the purview of the terms of Part III relating to basic rights.Second Amendment is the unique Constitution did not have provision for proclamation of state of emergency and preventive detention. By the Constitution of Second Amendment Act 1973, Article 33 was amended given that defensive detention and Part IXA was inserted conferring control on Parliament and the supervisory to deal with emergency situations and provided that for suspension of enforcement of the original rights during the time of emergency. Third Amendment act was written in 1974, the Constitution (Third Amendment) Act 1974 was approved to give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota. Fourth Amendment of The Constitution Act 1975 was passed on 25 January 1975. key changes were brought into the Constitution by this adjustment.The presidential form of government was introduced in point of the parliamentary method a one-party method in place of a multi-party system was introduced; the powers of the Parliament were reduced; the Judiciary lost much of its freedom; the Supreme Court was rundown of its jurisdiction over the defense and enforcement of basic rights. Last but not the list Fifth Amendment of the Constitution Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth agenda to the establishment by adding a new section 18 there to, which provided that all amendments, trappings, modification, substitution and omission made in the establishment during the period between 15 August 1975 and 9 April 1979 by any Proclamation or Proclamation Order of the Martial Law establishment had been genuinely made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The expression ‘BISMILLAH-AR RAHMAN-AR-RAHIM’ was added before the preface of the Constitution. The expression ‘historic fight back for national liberation’ in the introduction was replaced by the expression ‘a historic war for national independence.’ One party system was replaced by combined system. Basic morality of state policy was made as ‘complete trust and faith in the Almighty Allah, independence, equality and socialism meaning financial and societal justice. In April 1979, the Parliament, by two-thirds majority passed the Fifth Amendment Act to the Constitution. It brought many changes: restored fundamental rights, multiparty democracy and among others, gave Bangladesh Constitution an Islamic character by deleting secularism and socialism from the Constitution. To give the
  • 2. Constitution an Islamic character, the Preamble of the Constitution was changed in the following manner. Pledging that the high ideals of absolute trust and faith in the Almighty Allah shall be the fundamental principle of the Constitution. By operation of the original Article 38, no citizen had the right to form or take part in the activities of any union which has been formed on the basis of religion with a view to pursuing a political purpose. The High Court, by declaring the Fifth Amendment unlawful, has revived the old Article 38. For clear and better considerate, 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 of the life the state has chosen for herself." According to the Lord Bryce "The aggregate off laws and customs under which the 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 government operates." According to K.C Wheare-"The constitution is the body of rules which and the organs through which government power is exercised." C.F Strong says: “A constitution may by said to be a collection of principles according to which powers of government, the rights of the government and the relation between the two are adjusted." Considering the above definitions we can say-"Constitution is the some basic rules that tell us how the country will be governed, how the citizens will be dealt with, 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 chief martial law Administration from 15 January to 6 April 1979. The Amendment was passed 6th April 1979. This Act amended the Fourth agenda to the constitution by calculation a original subsection 18 thereto, which provided that all amendments, accompaniments, modifications, substitutions and omissions completed in the establishment for the duration of the period between 15 August 1975 and 6 April
  • 3. 1979. Fifth Amendment: The Fifth Amendment Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the Constitution by inserting a new paragraph 18. The effect of the amendment was that all amendments or repeals made in the Constitution from 15 August 1975 to 9 April 1979 (inclusive) by any proclamation or Proclamation Order of the Martial Law Authorities were deemed to have been validly made, and could not be called into question before any court or tribunal or other authority. (See also the Seventh Amendment.) Secularism in Bangladesh as prescribed in the constitution was never allowed to be practiced in during Sheikh Mujibur Rahman's Awami League government. Under secularism, Bangladesh suffered socially, culturally and politically. After November 1975 to 1977, when Bangladesh was under martial law, President and Chief Martial Law Administrator Lieutenant General Ziaur Rahman passed a presidential decree that removed the principle of secularism from the permeable of the constitution and set in "absolute trust and faith in the Almighty Allah". The decree was later legitimized by the second parliament of Bangladesh. In January, 2010, the Bangladesh Supreme Court observed that parliament does not possess any authority to suspend the constitution and proclaim martial law and hence, it cannot legitimize actions of martial law regimes. The judgment paved way for restoring the original four fundamental principles declared in the permeable of the constitution, including secularity. The Supreme Court followed with a July 2010 ruling scrapping provisions which allowed political parties with a manifesto based on faith doctrine to flourish after 1979. The ruling is expected to pave the way for a return to complete secularism in Bangladeshi law. 2. Part A: The Judgment of 5th Amendment: The judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has so far raise small hue and cry until May 4th 2009 when the Attorney General surprisingly moved a petition for withdrawing the leave-to-appeal petition in such a case having grave lawful implications and interpretation. As the present government has decided not to continue the appeal any more, the Appellate Division has allowed filing of petition for leave to petition by Khandker Delwar Hossain and other two interveners. This write-up is intended to explore some constitutional issues involved in the decision of 5th Amendment case and the
  • 4. pitfalls in withdrawal of the appeal. Apart from declaring the 5th Amendment illegal and unproductive, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with deserted property, and all actions done under the martial law between 15th August, 1975 and April 1979. The court held that usurpation of the state power through martial law public statement, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional. The judgment as it is reported in BLT Special Issue 2006 contains 242 pages with 22 points in its functioning part. The judgment is mainly based on a few doctrines under lawful jurisprudence policy of blunder or unconstitutionality, principle of vital structure, the power of judicial assess under a written constitution and belief of oath of office under the establishment. Separately from the scrutiny of limits of some these doctrines; there are some jurisdictional and lawful continuation issues which the Appellate part should examine in quality. Proclaiming the Fifth Amendment constitutional on the foundation of the raised concerns and penalty would equal to making a legal decision based on extra-legal kindness and the necessary finish turning the banned means into a permissible one a outstanding challenge in any justice method. Its effect would be to condone many unacceptable elements of the Fifth Amendment. It would validate all acts of the martial law regimes, as well as those that vandalized and customized the constitution to supply for their political ambition, distant the constitutionally fixed ideals of the liberation war, recommend politics, stultified the development of supporting foundation, made policy difficult for politicians by creating political turncoat, installed pliable parliament through rigged election, introduced military oligarchy with democratic outfits, confined the rule of law for the rule of the jungle to prevail, and pursued sectarian interests. a) Constitutional Issues for Fifth Amendment: By declaring the Fifth Amendment illegal, the High Court has also interfered with the connection of Bangladesh with other Muslim countries based on Islamic solidarity. 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 its relations with the Muslim countries were established. The Fifth Amendment Case has deleted this provision. This may indirectly affect the relationship of Bangladesh (which is the home of almost 10% of the entire Muslim population of the world, with the rest of the Islamic world. Finally, an anomaly, which was present in the original Constitution of 1972, has been re-introduced. Under Article 6 of the unamended Constitution, the citizens of the Bangladesh were known as Bangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The
  • 5. Bangalees are one such ethnic group. As such the term Bangalee as used in the Constitution had the undesired effect of prima facie excluding other ethnic groups from Bangladeshi citizenship. The Constitution Fifth Amendment Act, 1979 having defined citizens of Bangladesh as Bangladeshi and not as Bangalees does not exclude other national groups from the citizenship of Bangladesh. However, the High Court Division deleted this beneficial amendment. The notion of secularism, being opposing to the history of the region and its nation, reference to secularism in the bill were removed and in its place, unlimited trust and faith in Almighty Allah were inserted. As such, in the 38 years since the framing of the Constitution, the citizens of the country have spoken their complete trust and faith in Almighty Allah for over 34 years. This place was changed by the High Court judgment. Every national shall have the right to form links or union, subject to any sensible limits imposed by law in the benefit of ethics or public order provide that no being shall have the right to form, or be a element or if not take part in the actions of, any common or other involvement or union which in the name or on the base 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 is identical with that of the Yahya regime. In a offer to prevent the Asma Jilani penalty, these regimes overly sought impunity under the same constitution that they proudly defied by force. It is a legal narrative to say that they consequent their power from martial law and to justify that authority under the constitution, which outlaw the past. The Supreme Court of Bangladesh, being the custodian and guardian of the constitution, and its judges being bound by their promise, are compelled 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 address those concerns and consequences, particularly when an elected parliament is functional in Bangladesh.The changes brought about by the Fourth Amendment have almost dissipated. Nonetheless, any unwanted aspects of the 15 August 1975 condition, say the form of government, may be invalidate and desirable aspects of governance between 15 August 1975 and 9 April 1979 may be given validity by current parliament. This precisely happened to the protection regulation 1975, an element of the Fifth Amendment, which was invalidate by parliament to commence the Bangabandhu murder trial Constitutionalism in Bangladesh has been on a roller-coaster ride. Mischievous interference by the Fifth Amendment
  • 6. stripped the constitution of its basic structural essence and coherence. The judicial scrutiny of its retrospective unconstitutionality is in order and indeed imperative to generate a deterrent effect prospectively on those anxious of exploiting the constitution as a political ploy to conceal their self-serving false agendas. It is the assigned and assumed responsibility of the Supreme Court to preserve the constitutional value and self-respect as the supreme law of the Republic. There are credible avenues for adjustments to avoid any legal vacuum, and ensure governing continuity and stability without abrupt interruptions from the past. For citizens, it is a matter of stark and reasoned choice between support and sympathy for lawful, and opposition and antipathy for illegal, behaviors. We should not exaggerate our concerns and consequences to serve vested interests and to frustrate our ongoing quest 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 four principles were replaced in the Preamble and Art.8 of the Constitution by ‘absolute trust and faith in the Almighty Allah,’ ‘nationalism’ Bangladeshi nationalism, ‘democracy’ and ‘socialism meaning economic and social justice.’ ,Absolute trust and faith in the Almighty Allah’ was made to be the basis of all actions in Art 8(1A) of the Constitution. Upon autonomy, Bangladesh issued the Adaptation of Existing Laws Order No. 48 of 1972, adopt certain laws and acts (of Pakistan) that were in existence and applicable in the East Pakistan prior to independence (such as the 1951 Citizenship Act) in order to fill up the gap created by the secession of Bangladesh from Pakistan. senate can choose and pick all acceptable elements of the 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 same way it endorsed overstay of the immediately past caretaker government and the Law Minister justified it as a matter of necessity. There are legal ways to overcome any potential vacuum in continuity. There is nothing in law or the constitution that prevents 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 such amendment there are some procedural requirements. For the amendment of Constitution the Bill must be passed by the votes of no less than two–third of the total number of members of Parliament. The President shall within seven days of the presentation of the Bill after being passed in Parliament with the requisite
  • 7. majority assent to the Bill and if he fails to asset within that time he shall be deemed to have assented the Bill. However, if the Bill seeks to amend the Preamble or any of the provisions of Article 8 (provision relating to fundamental principles), 48 (provision relating to the President), 56 (provision relating to Ministers) or 142 (provision relating to ‘power to amend any provision of the Constitution’) the President shall refer it to a referendum and if the majority votes in the referendum are in favor of the amendment the President shall be deemed to have assented to the Bill, otherwise the President shall be deemed to have withheld his assent from the Bill The procedural requirements are mandatory and non- compliance of the requirement will render the amendment void. . Proclaiming the Fifth Amendment constitutional on the basis of the raised concerns and consequences would tantamount to making a legal decision based on extra-legal considerations and the justified end turning the prohibited means into a permissible one a striking contradiction in any justice system. Its effect would be to condone many unacceptable elements of the Fifth Amendment. It would validate all acts of the martial law regimes, including those that vandalised and tailored the constitution to cater for their political ambitions, removed the constitutionally entrenched ideals of the liberation war, recommunalised politics, stultified the development of political institutions, made politics difficult for politicians by creating political turncoats, installed pliable parliament through rigged elections, introduced military oligarchy with democratic outfits, hamstrung the rule of law for the rule of the jungle to prevail, and pursued sectarian interests. Parliament may enact an adaptation legislation to validate any laws and acts of those martial law regimes currently in force with a view to avoid any legal vacuum and non- continuity in governmental authorities. Precedents of such adoption exist in the law-making history of Bangladesh. 4. Conclusion: If the judgment in the 5th amendment case is upheld, some important decisions by the Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. Chief Election 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 law proclamation, regulation etc, were supreme law and the Constitution lost its character as supreme law. Constitution is the supreme law. It is the reflection of peoples’ wishes and desires. The government should think very carefully before making any fundamental changes in it. It should refrain from making major
  • 8. changes unless a national consensus is reached. History tells us fundamental changes of the Constitution by the unilateral action of the government have not brought fruitful result. Rather, it created bitter hostility and division within the country when stability and unity were immensely needed for national prosperity. In any event, if any fundamental changes are to be made in the current Constitution, the prescribed procedure outlined in the very Constitution must be followed.