The Appellate Division of the Supreme Court on Wednesday ordered retention of some provisions, including the Supreme Court's authority over the subordinate judiciary and Bangladeshi citizenship, made by the fifth amendment to the constitution, until December 31, 2012 to enable the parliament to make necessary amendments to the constitution.
The five-member Appellate Division bench, presided over by Justice Md Muzammel Hossain, ordered retention of the martial law proclamation that had amended Article 6 of the constitution regarding Bangladeshi citizenship.
It ordered retention of the martial law proclamations that had amended Article 44 guarantying the right to move the High Court for the enforcement of the fundamental rights and Article 102 that had restored authority to the High Court to pass necessary orders to enforce fundamental rights.
The martial law proclamations that had amended Article 96 making provisions for the Supreme Judicial Council for removal of judges and holders of constitutional offices and repealed Part VI-A of the constitution, which was added by the fourth amendment making provisions for forming 'National Party' as the lone political party in the country, will also be retained, the court ordered.
The amendments made by the fifth amendment 'are hereby provisionally condoned until December 31, 2012 in order to avoid disastrous consequence to the body politic for enabling the parliament to make necessary amendments to the constitution and also for enacting laws promulgated during the aforesaid period,' the court said.
The court passed the order in its verdict in the government's appeal seeking a review of the Appellate Division judgement delivered on February 2, 2010 upholding the High Court verdict delivered on August 29, 2005 declaring the fifth amendment void.
In Wednesday's verdict, the Appellate Division disposed of the government's petition with a modification of the operating portion of its December 2, 2010 judgement.
The court also ordered the government to hand over possession of the Moon Cinema Hall at Wiseghat in Old Town of Dhaka to the Bangladesh Italian Marble Works Limited managing director Maqsudul Alam 'in three months free from all encumbrances and/or to resolve the dispute amicably within the said period.'
The High Court had delivered the verdict after hearing a writ petition filed by Maqsudul over a dispute relating to the Moon Cinema Hall.
In Wednesday's verdict, the Appellate Division expunged the observations made by the then chief justice Tafazzul Islam in the February 2, 2010 judgement and upheld the High Court verdict delivered by Justice ABM Khairul Haque, now the chief justice.
The February 2, 2010 judgement overturned the High Court's observation that had said, 'The Fourth Schedule as envisaged under Article 150 is meant for transitional and temporary provisions. Since Paragraph 3A and 18 were neither transitional nor temporary, the insertion of those paragraphs in the Fourth Schedule is beyond the ambit of Article 150 of the constitution.'
The February 2, 2010 judgement observed, 'We are of the view that the High Court Division unnecessarily dealt with Article 150 of the constitution. As it appears, Paragraph 21 and 22 as included in the Fourth Schedule are the results of the Eleventh and Twelfth Amendment which were enacted in order to strike down remaining portion of the provisions of the Fourth and the Fifth Amendment.'
'The Fifth Amendment which ratified and validated Paragraph 3A and 18 is ultra vires because it ratified and validated the martial law proclamations, regulations and orders made by the authorities not recognised by the constitution and Article 142 thereof,' said the February 2, 2010 judgement.
The High Court bench of Justice ABM Khairul Huq and Justice ATM Fazley Kabir on August 29, 2005 delivered the verdict declaring illegal and void the fifth amendment and the martial law regulations issued between August 15, 1975 and April 1979.
The Bangladesh Nationalist Party's secretary general Khandaker Delwar Hossain and three Supreme Court lawyers — Munshi Ahsan Kabir, Tajul Islam and Kamruzzaman Bhuiyan — filed two provisional petitions on May 3, 2009 as the present government accepted the High Court verdict and quit the legal battle against it.
The Appellate Division on May 4, 2009 allowed Delwar and the three lawyers to file regular petitions seeking permission to appeal against the High Court verdict.
News Source: New Age
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