Untold Facts

Chaos to set on: Issue is the 5th Amendment

On February 2 in the evening a seating justice of the High Court asked me on the phone my response or reaction on the 5th Amendment issue the SC rejected leave to appeal that day in the forenoon, myself neither a practicing lawyer nor anybody to do anything with judiciary or justice department but a government teacher retired 15 years ago. Even so, I retorted instantly without any hesitation: since the 27th January verdict on the 15th August 1975 case, I had my only one conclusion in the 5th Amendment Case what the six member bench passed in the matter just after 5 days comprising all the same four judges of 27th January plus additional two on the February 2 (10). On the phone I explained in brief further my hunch.

The Fifth Amendment, as the development and processes went on for the amendment passed in early April 1979, did not come about without crucial legal background, much less for simple sports making by the parliament members. In fact, although the sniper action toppling the BKSAL President was successfully engineered on the 15th August 1975, the Parliament was not right then abrogated. It was abrogated later on along with declaration of martial law in the country. The pertinent point was that martial law was declared with effect from the 15th August, not excluding the 15th August, for that essentially demanded continuity of the government as the top of the administration or the President had gone.

Since that occurrence on the 27th January four justice bench of the same Supreme Court (SC) has turned away the mutiny stance of the 15th August and passed verdict in the case as the simple ‘murder’ under Cr. P.C., the Fifth Amendment basically based on that 15th August legitimacy could not have been otherwise on the February 2 judgment of the SC.

The day the Fifth Amendment was passed lawfully in the Parliament the state, government, administration and all organs of the country had already passed legally through a long period of over three and a half years. All questions of legitimacy had then been based on the 15th August change as legally valid and so passed in the Parliament along with the 5th Amendment, and to remain beyond question and even unchallengeable in the court of law. How could then the court poke nose in the matter of the sovereign Parliament now after over 35 years of legal continuity?

Judiciary has nothing to do with sovereignty of the Parliament, not to speak of even denting any bit of the sovereignty. Article 7 of the Constitution has set a clear cut limit there that provides:
“7(1) All powers in the Republic belong to the people and their exercise on behalf of the people shall be effected only under, and by the authority of the Constitution.
7(2) The Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.” (The Constitution of the People’s Republic of Bangladesh, GPP, Dhaka, 1998, p.3).

The article has not only confirmed the supremacy of the Constitution but also clearly uphold the sovereignty of the parliament. Should any change or amendment is required such issues are to be settled in the parliament through due process laid down in the Constitution itself and by none else, much less the Judiciary.

Judiciary has its own jurisdiction to administer justice in the due process of law limited to penal codes etc., not to do anything beyond. Well, interpretation of the constitutional provisions, in case any such point/s arise, may well be done by judiciary; but that also may not be anything final verdict but a sort of recommendation/s. Whether the Parliament would accept or reject any such recommendation/s would be up to the parliament in its own procedure and inherent rights.
The 22 observations of August 2005 of the High Court were such recommendations and were in no case mandatory. They were as well full of contradictions for it also curiously took some matters as ‘Passed and Closed’. Well there have been some good senses that the February 2 Bench has not accepted everything of the 2005 August observations but wished to make changes. Let them do so. Even then nothing would be mandatory for the Constitution, not to speak of the sovereign Parliament.
It’s true that in matters of judicial verdict passed in the highest court, there is no remedy even if in the system left over by the British colonialists are not in all cases humane as it happened in the case of the 15th August (75) mutineers or anti-BKSAL coup makers executed to death, curiously enough though such death sentence is not there in Britain and also in 95 other civilized countries. But the SC had their final say despite protest against almost universally all over the world as many termed the punishment dictated by vengeance and POLITICAL TRIAL (See, The Economist, 27 November 2009). The same sort of final say can not be given in the 5th Amendment case as it’s beyond the Jurisdiction of the SC. If the Bench does so, it will only be a romantic venture in no way to be acceptable to the people just as the people did not agree with the hanging of the 15th August coup leaders as simple ordinary killers. Had they been ordinary killers and not heroes of the welcome coup the civilized world and the international humanitarian organizations, the Amnesty International, The European Union, etc. would not stand in their defense against execution. Or else had we been like open democratic societies and would not have the fascist rulers, there would have been protests just as in the USA going on for Dr Afia Siddiqi by sensible people against the 27th January verdict made through collusive executive engagements (Refer to BBC Bengali Radio Service Phone In verbatim of a common man as was heard at 7.30 evening program on the 6th February in Dhaka wherein he frankly commented that the specific Chief Justice was appointed superceding some others just only to give the very judgment in the Mujib Murder case). That the rocket speed execution in hours giving damn to proper time and scope for Mercy Petition further confirmed the collusive executive engagement and settling score of vengeance rather than anything rule of law, celebrated thus by the frenzied Awamis and their Kolkata cohorts but in contrast painfully and deeply mourned by the patriotic millions here who did not see justice done.

Annulment of the 5th Amendment meant back to the 4th Amendment and to the notorious BKSAL of 1975 that had the logical death in the occurrence of 15th August 1975. The heroes of the 15th August though had already been executed to death through clear miscarriage of justice and judicial murder of the political trial mentioned above the same style of guillotining the Fifth Amendment of the Bangladesh Constitution would not only be romanticism but also put the majority people of the country into the streets. If the SC Bench wishes to engineer orchestration of street battle of the people divided into two groups only to invite the big neighbor’s invading army for total occupation of our place can not be beyond hunch of any sensible citizen of Bangladesh.

Author:B K Din