1. Background
1.1 In the year 2000, the owners of a cinema hall called Moon Cinema Hall filed a writ petition under Article 102 of the Constitution claiming that the declaration of Moon Cinema Hall as an abandoned property was unlawful and sought a direction upon the government to hand over the physical possession of the premises known as Moon Cinema Hall in Dhaka to their original owners. In that writ petition, the petitioners challenged the constitutionality of the Fifth Amendment Act by which various proclamations of the Martial Law were condoned by Parliament in April 1979.
1.2 By a Judgment and Order dated 29th August 2005, the High Court declared the Fifth Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.
2 Islamic Character of the Constitution
2.1 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.�
2.2 By operation of the original Article 38, no citizen had the right to form or take part in the activities of any organisation 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 understanding, we are quoting below the original Article 38 and the amended one (amended by the Fifth Amendment):
Original Article 38
�Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order:
Provided that no person shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.�
Amended Article 38
�Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of public order or public health.�
It may be mentioned that the Islami character to the Constitution was given in 1976 by the Second Proclamation (6th Amendment Order, 1976), which was later ratified by Parliament in 1979.
3 Court Procedures
3.1 On 29th August 2005, the High Court declared the Fifth Amendment unconstitutional. On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Awami League came to power in January 2009 and on an application made by the new Government on 3rd January 2010, the Government�s appeal was withdrawn and the stay granted has been vacated.
3.2 Realising that the new Government would withdraw its appeal, earlier on two applications were filed: one by the Secretary General of BNP, and another by three advocates of the Supreme Court of Bangladesh, which sought to challenge the judgment passed by the High Court declaring the Fifth Amendment void. These two applications will come up in the list of the Supreme Court on 18th January 2010 for hearing. If these two applications are rejected on the 18th of January or anytime thereafter, then various provisions of the 1972 Constitution will be revived and Bangladesh Constitution will lose its Islamic character.
3.3 In that event, no further amendment to the Constitution would be necessary to give effect to the judgment of the High Court. Parliament need not to pass any further legislation. The implementation would be automatic. The High Court has also done away with the provision of referendum to change certain provisions of the Constitution. Therefore, no referendum will be necessary either.
4 Effect of Reverting Back to the 1972 Constitution
4.1 The concept of secularism, being contrary to the history of the region and its people, references to secularism in the Constitution were removed and in its place, �Absolute 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 expressed their absolute trust and faith in Almighty Allah for over 34 years. This position was changed by the High Court judgment.
4.2 Moreover, the present Court judgment has also taken away the fundamental right of citizens to form associations for a religious purpose. Citizens of Bangladesh have enjoyed such a fundamental right for 34 years since 1976. Although originally under Article 38 of the Constitution it was a fundamental right of all citizens to form associations, there was no fundamental right to form associations for religious purpose. However, in 1976, amendments were introduced in Article 38 of the Constitution and the fundamental right to form associations was extended to associations formed for religious purposes.
4.3 Now no citizen will have the right to form or be a member of a union or association based on religion. Although the Constitution does not prohibit the formation of such association, however, by virtue of section 20(2) of the Special Powers Act, 1974, the Government has the power to dissolve all or any religious political party.
4.4 On 4th January 2010, the Minister for Law, Justice and Parliamentary Affairs has expressed the Government�s intention to dissolve all associations based on religion. Later on, the Prime Minister also expressed similar opinion. If, on the strength of the Court�s decision, the Government decides to dissolve religious political parties, Bangladesh Jamaat-e-Islami, together with a dozen other small religious parties can also be dissolved. This might create a tension in the society. Jamaat-e-Islami, and other Islamic political parties, have been operating under the framework of the Constitution. Their objective is to establish, only through democratic process, a just society based on Islamic principles. When the doors of change through democratic process will be closed, this will strengthen the hands of the extremists who have been functioning outside the democratic process and accusing the Jamaat-e-Islami in particular of compromising the principles of Islam by functioning under the democratic process.
5 Interference in International Relations
5.1 By declaring the Fifth Amendment unlawful, the High Court has also interfered with the relationship of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25(2) of the Constitution provided as follows:
�The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.�
5.2 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).
6 Change in Citizenship
6.1 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 described/defined citizens of Bangladesh as �Bangladeshis� and not as �Bangalees� does not exclude other ethnic groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division.
7 Conclusion
7.1 The Court�s judgment has created a sea of uncertainty in Bangladesh politics. Moon Cinema Hall could have been handed over back to its original owners by the High Court without knocking down the Fifth Amendment to the Constitution. By closing the doors of Constitutional politics for Islamic political parties, Bangladesh may become more unstable, more volatile and consequently more unpredictable.
Writer: Senior Lawyer, Politician
1.1 In the year 2000, the owners of a cinema hall called Moon Cinema Hall filed a writ petition under Article 102 of the Constitution claiming that the declaration of Moon Cinema Hall as an abandoned property was unlawful and sought a direction upon the government to hand over the physical possession of the premises known as Moon Cinema Hall in Dhaka to their original owners. In that writ petition, the petitioners challenged the constitutionality of the Fifth Amendment Act by which various proclamations of the Martial Law were condoned by Parliament in April 1979.
1.2 By a Judgment and Order dated 29th August 2005, the High Court declared the Fifth Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.
2 Islamic Character of the Constitution
2.1 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.�
2.2 By operation of the original Article 38, no citizen had the right to form or take part in the activities of any organisation 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 understanding, we are quoting below the original Article 38 and the amended one (amended by the Fifth Amendment):
Original Article 38
�Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order:
Provided that no person shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.�
Amended Article 38
�Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of public order or public health.�
It may be mentioned that the Islami character to the Constitution was given in 1976 by the Second Proclamation (6th Amendment Order, 1976), which was later ratified by Parliament in 1979.
3 Court Procedures
3.1 On 29th August 2005, the High Court declared the Fifth Amendment unconstitutional. On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Awami League came to power in January 2009 and on an application made by the new Government on 3rd January 2010, the Government�s appeal was withdrawn and the stay granted has been vacated.
3.2 Realising that the new Government would withdraw its appeal, earlier on two applications were filed: one by the Secretary General of BNP, and another by three advocates of the Supreme Court of Bangladesh, which sought to challenge the judgment passed by the High Court declaring the Fifth Amendment void. These two applications will come up in the list of the Supreme Court on 18th January 2010 for hearing. If these two applications are rejected on the 18th of January or anytime thereafter, then various provisions of the 1972 Constitution will be revived and Bangladesh Constitution will lose its Islamic character.
3.3 In that event, no further amendment to the Constitution would be necessary to give effect to the judgment of the High Court. Parliament need not to pass any further legislation. The implementation would be automatic. The High Court has also done away with the provision of referendum to change certain provisions of the Constitution. Therefore, no referendum will be necessary either.
4 Effect of Reverting Back to the 1972 Constitution
4.1 The concept of secularism, being contrary to the history of the region and its people, references to secularism in the Constitution were removed and in its place, �Absolute 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 expressed their absolute trust and faith in Almighty Allah for over 34 years. This position was changed by the High Court judgment.
4.2 Moreover, the present Court judgment has also taken away the fundamental right of citizens to form associations for a religious purpose. Citizens of Bangladesh have enjoyed such a fundamental right for 34 years since 1976. Although originally under Article 38 of the Constitution it was a fundamental right of all citizens to form associations, there was no fundamental right to form associations for religious purpose. However, in 1976, amendments were introduced in Article 38 of the Constitution and the fundamental right to form associations was extended to associations formed for religious purposes.
4.3 Now no citizen will have the right to form or be a member of a union or association based on religion. Although the Constitution does not prohibit the formation of such association, however, by virtue of section 20(2) of the Special Powers Act, 1974, the Government has the power to dissolve all or any religious political party.
4.4 On 4th January 2010, the Minister for Law, Justice and Parliamentary Affairs has expressed the Government�s intention to dissolve all associations based on religion. Later on, the Prime Minister also expressed similar opinion. If, on the strength of the Court�s decision, the Government decides to dissolve religious political parties, Bangladesh Jamaat-e-Islami, together with a dozen other small religious parties can also be dissolved. This might create a tension in the society. Jamaat-e-Islami, and other Islamic political parties, have been operating under the framework of the Constitution. Their objective is to establish, only through democratic process, a just society based on Islamic principles. When the doors of change through democratic process will be closed, this will strengthen the hands of the extremists who have been functioning outside the democratic process and accusing the Jamaat-e-Islami in particular of compromising the principles of Islam by functioning under the democratic process.
5 Interference in International Relations
5.1 By declaring the Fifth Amendment unlawful, the High Court has also interfered with the relationship of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25(2) of the Constitution provided as follows:
�The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.�
5.2 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).
6 Change in Citizenship
6.1 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 described/defined citizens of Bangladesh as �Bangladeshis� and not as �Bangalees� does not exclude other ethnic groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division.
7 Conclusion
7.1 The Court�s judgment has created a sea of uncertainty in Bangladesh politics. Moon Cinema Hall could have been handed over back to its original owners by the High Court without knocking down the Fifth Amendment to the Constitution. By closing the doors of Constitutional politics for Islamic political parties, Bangladesh may become more unstable, more volatile and consequently more unpredictable.
Writer: Senior Lawyer, Politician
