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The Supreme Court dismisses 5th Amendment petitions..

The Supreme Court has dismissed two petitions challenging a 2005 High Court ruling that declared the constitution's Fifth Amendment illegal.

A full six-member bench, led by chief justice Md Tafazzul Islam, dismissed the petitions on Tuesday after six days of hearings that began on January 19.

The bench in its ruling said: "Petitions are dismissed with modification and observation."

After the ruling the prosecution said there is no need to bring a bill in parliament to amend the constitution while the petitioners said a bill must be brought into the house for any constitutional amendment.

Attorney general Mahbubey Alam told reporters after the SC ruling essentially upheld the previous HC judgment. He said it meant that the possibility of the military taking over power had been stopped forever.

Asked if there was any need to amend the constitution in parliament, Alam said: "No bill should be brought in parliament. The constitution will be reprinted the way it was, after the Eighth Amendment."

He said: "This rule is a great victory in the country's history."

"Bangladesh has been promoted to the level of those civilised countries where Martial Law does not exist," Alam said.

Law minister Shafique Ahmed told reporters after the ruling: "This order lays the foundation to re-establish the spirit of the Liberation War which formed the basis of our constitution."

Regarding the amendment of the constitution, he said: "Measures will be taken after seeing the copy of the order."

The Fifth Amendment was meant to provide constitutional legitimacy to the governments in power — military or otherwise — following the 1975 assassination of the founding president Sheikh Mujibur Rahman.

But the High Court gave a ruling in August 2005, declaring the Fifth Amendment illegal, in response to a petition challenging the legality of the Martial Law Regulation of 1977.

In its ruling, the High Court declared three illegal regimes between August 15, 1975 and 1979, headed by Khandaker Mushtaque Ahmed, Abu Sa'dat Mohammad Sayem and Ziaur Rahman.

The ruling exempted certain measures of those regimes initiated for public welfare. But the court in its judgment said all the changes in government from August 15, 1975 right up to the national elections of 1991 were also unconstitutional.

The present Awami League-led government's withdrawal from a petition made by the previous BNP-led regime, against the High Court ruling, prompted petitions by BNP secretary general Khandaker Delwar Hossain and three pro-Jamaat lawyers last month.

Delwar and the three pro-Jamaat-e-Islami Supreme Court lawyers—Munshi Ahsan Kabir, Tajul Islam and Kamruzzaman Bhuiyan—filed petitions against the High Court rule repealing the Fifth Amendment.

The petitions came in the wake of Supreme Court's January 3 vacation of a stay order on the momentous High Court verdict.

TH Khan, lawyer for the BNP secretary general, said: "The court has pronounced the word 'modification' because our reasoning was actually rational."

He said the government should bring a bill in parliament to change the constitution accordingly.

On Tuesday's ruling he said: "The Appellate Division could have granted the leave (to appeals). But it did not, because that would put the court and the government on a head-on collision course."

"But there is a light of hope amid frustration. The court has pronounced the word 'modification' which has given us relief. But we do not know what kind of modification there will be."

Another of Delwar's lawyers, Moudud Ahmed said: "As the Appellate Division pronounced the word 'modification' it cannot be said that the High Court ruling is being upheld fully."

"The ruling has also proved the veracity of our rationale," Moudud, also a BNP leader, said.

Although BNP argued in favour of the Fifth Amendment, it has been demanding trial of the former army chief Moeen U Ahmed, who was said to be a key driver of the interim government that was in power during a two-year state of emergency between Jan 2007 and Dec 2008.

Asked whether the two issues were contradictory, he said: "The way Moeen took over the power was different."

Tuesday 2 February 2010


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