On 30 September 2010, the then Chief Justice ABM Khairul
Haque after taking sworn requested to law ministry to reprint the Constitution
since the provisions of original constitution that were either repealed or
amended by martial law proclamations, have automatically been restored into the
constitution exclusively after the verdict of the Appellate Division regarding
the fifth amendment.
Because of this announcement,
some of our lawyers and politicians engross with a redundant debate on the
conclusive power of parliament to amend the constitution. The debate is entirely
superfluous and as an attempt to make Justice Haque contentious as he might
lead the next caretaker government as chief adviser (as of their opinion).
Highest court is a source of
making law. Supreme Court of Bangladesh has every power to formulate laws and
amend laws by virtue of Art. 7 and 111 of our constitution. We are under the
system of constitutional supremacy while United Kingdom exercising
parliamentary superiority. There is a maxim on preeminence of UK parliament
that they do and undo everything except turning a man into a woman and vise
versa.
Constitutional supremacy means
constitution is superior over the parliament and court can declare void any law
passed by house of the nation, if that law is inconsistent with the
constitution (Art. 7(2)). Moreover, it is the solemn responsibility of the
court to protect the constitution from those types of violation and lawmakers
appoint them as custodian of the constitution.
SC continuously makes law by its
verdict and this judgment is obligatory over inferior courts. Hence, by making
precedent SC also works as a source of law. Further, the laws made by the
parliamentarian are not beyond defect. Court is the principal sector of
implementing these laws and when it finds any difficulties to apply it then the
court will resolve the matter by legal elucidation. It is recognized principle
in legal arena that laws made by the court have equal effect as of the
parliament. Even a hundred years old ritual can be a law after gratifying some
conditions. So, legislature is not the only factory of making law.
A number of pleaders and
politicians are not able to realize the discrepancy between reprint and
amendment. Obviously, parliament has the right to create law or amend
constitution. But, reprint of the constitution is not amendment of
constitution.
The special JS committee, which
is formed for the amendment of the constitution, can scrutinize every facet of
amending constitution and parliamentarian can amend constitution at any time if
they wish. In this case court neither crossed it’s limit of power nor grabbed
authority of parliament. A clear line is subsisting between the authority of
judiciary and legislative body.
In our country house can’t do
and undo everything. It can’t give legality of an illegal activity which was
given by the second parliament in 1979. Some of the members of that parliament
are today crying for the so-called violation of constitution! Where was their
this sense of violation when Mr. Iajuddin took oath as chief adviser of the
previous non-party caretaker govt. by violating supreme charter of the land?
They gave legality of all actions, orders of the martial law regime in between August 15, 1975 to April 9, 1979. The
parliament cannot ratify and validate those unconstitutional acts of usurpers.
Constitution and martial law
can’t exist simultaneously. Constitution could not be amended through martial
law proclamations and regulations. It is only the authority of the parliament
that can amend the constitution (J Haque said in Bangladesh Italian Marble Worker Ltd. V Govt. of Bangladesh &
Others, BLT (Special issue, 2006, HCD)).
When Ziaur Rahman altered their
loving (?) constitution by martial law proclamations, where was their affection?
Who try the illegal activities, which were done during the period of Zia by
trampling constitution? House of the nation can’t alter whole of the
constitution. We the mass people elect them to make laws for us but that do not
mean we also give authority to change basic structure of our constitution.
Whether the constitution will
reprint or not is not essential to uphold the decorum of the constitution. It
is mere reprinting by which everyone will be able to know the actual provisions
of constitution. From the very moment of declaring the verdict of fifth
amendment case (Moon cinema hale case) the changed provisions were automatically
substituted by the prior provisions into the constitution. If the modus
operandi by which constitution was changed is cancel then it is needless to
say the changed provisions are also withdrawn.
Now, who rise the question of
violation of the authority of legislature by judiciary, they did the same when
court said to do that. When another despotic ruler altered the basic structure
of the constitution by setting up HC benches outside of the capital and court
declare that void in 1988. In 1991 they just reprinted the constitution with
Art. 100. In doing so, the parliament didn't need to pass any act to amend the
constitution as the change was illegal. Mere delivering the news of
cancellation of 5th amendment to the members of parliament is adequate.
Ergo, their today’s sympathy for the constitution is meaningless and they done
this with a mal intention to create a controversy and taking advantage
from this as well.
Where law minister remarked
constitution has automatically been return to it’s original form by the verdict
and a divisional bench of HCD have already been given a verdict (on 04.10.’10)
by inspiring the judgment of 5th amendment case that now Bangladesh is a
secular country and no one can force anyone to wear religious apparels, there
this type of unnecessary debate is not only unpredictable but also anxious for us.
Legislature and judiciary is two separate organ of the state. Both of them have equal obligation to serve
the nation. A fake allegation is enough to destroy check and balance of power.
If our politicians can make parliament as a centre of exercising democracy then
judiciary will also get relief from declaring martial law proclamation void.
I’m optimist that our cream of the crop will think about it
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