SC Full Bench
The declaration by the High Court in 2005 of the 5th Amendment as illegal and then filed leave to appeal right then by the previous government that was withdrawn by this AL Government on the 3rd May 2009 have obviously put Bangladesh into huge ransom. Fortunately, some responsible citizens of the country have rightly stood to become a party to the appeal that has been granted on the 4th May 2009 by the Supreme Court 7 member full bench, and allowed them to file appeal in one month's time.
Continuity at stake
The Fifth Amendment of the Constitution made on the 6th April 1979 was not only historic but also extremely crucial as life and death issue for constitutional continuity of Bangladesh. One must ask oneself how could any responsible and patriotic person much less responsible government with any bit of concern for the country's lawful continuity abandon the appeal petition in 2009 earlier made in 2005 to the supreme court in the case and pending since then.
Naïve's exercise
I am neither a professional lawyer nor a political party anybody but a humble senior citizen retired from formal job nearly 15 years ago felt extremely stunned at the news of the withdrawal of the appeal on the 3rd May evening by the present government of Bangladesh that I may like to explain in some detail below.
13 minutes drama
The Fifth Amendment in serial order followed the Fourth Amendment of the Bangladesh Constitution made on the 25th January 1975. Ironically the Fourth Amendment though made in the Bangladesh Parliament had been notoriously not only ill conceived but also followed evil process so far as parliamentary norms were concerned. It had been a 13 minutes business session wherein the Leader of the House alone had his edict announced and passed without having gone through due process of debate and all that needed. Based on that violation of norms the amendment lacked normal legality of parliamentary democratic process.
Dictator
Why was that so? Why was the hide and seek with democracy and national future? The reason was simple. The leader wished to become lone dictator for life having there none in opposition to him, much less any opposition party in the national Parliament. He banned all political parties and then imposed instead the lone party of his own Awami League versioned anew as the BAKSAL or Bangladesh Krishak Sramik Awami League, as if by changing thus the nomenclature he brought in all into the party fold! The multi-party nature of the State and the Constitution abruptly changed by the leader in thirteen minutes in such haste that he allowed none to speak in the floor against the undemocratic romantic venture.
Questionable
How much was the leader honest and sincere for overall welfare of the people was not above question for his lieutenants and cadres had been engaged in fortune seeking so much unkindly that they had inflicted famine of their own making in the country in 1974 that brought in unnatural deaths to 27,000 vulnerable men, women and children due to hunger according to government estimate and lakhs according to other estimates. The death scenes in even the city of Dhaka at the nose of the government were not only tragic but also so menacing that hundreds of dead bodies had been picked up from the streets day in and day out by voluntary organizations like Anjumne Mafidul Islam, etc. for burial.
Hoodlums and killers
The repression on the political opposition whoever had been in some action program for the welfare of the country was sized up through various private armed hoodlums including one under the leader's eldest son Kamal, another under his nephew Moni, still another under his most favorite and S.P. of Dhaka Mahboob and the unconstitutional Para military force Rakhi Bahini unleashed indiscriminately on the imaginary political opponents. That Rakhhi Bahini, in fact, had been raised under the Indian R&AW and Indian Army General Ovan as a specially trained and armed force in parallel with the regular armed forces only for protection of the leader and answerable to the lone top leader.
Apart from making the legislative and executive taken under the sole control of the leader, the judiciary had also been made totally subservient so much so that even the Supreme Court judges had been made removable at the top leader's mercy.
Undignified image
At the international level Bangladesh had no dignified image. Countries like China, Saudi Arabia, etc had not even in over three and a half years of existence recognized Bangladesh as an independent country for its subservience to India and the then Soviet Union. The Fourth Amendment of the Constitution that turned the country into one party dictatorial rule made it more friendless, particularly, in the West.
National Relief
Then came the national relief from repression in mid August 1975. The leader was toppled in a successful military coup profusely welcomed by the people at home and abroad. The people had a great sigh of relief so much so that none lamented the fall of the leader. Though counter coups had been tried but all failed and pro 15th August coup putsch remained in full hold. The notorious lone party BAKSAL had been declared void, medias freed, declarations one after another for freedom and democracy issued, multi-party general elections held, and ultimately the Fifth Amendment passed in the newly elected Parliament on the 6th April 1979.
Pluralism
The Fifth Amendment had been clearly featured not only by provisions for pluralism and multi-party democracy but also changing the constitutional principles. The main changes included three issues; left off Bengali nationalism and in place adopted the logical Bangladeshi nationalism, abandoned socialism to Islamic social justice, and replaced secularism to Faith and Absolute Trust in the Almighty Allah. These changes had full consent and support of the people measured not only in the election results but also as they kept in tune with the general aspirations of the people in the past historical process. All these three issues incorporated in the 1972 Constitution had no reflection of the common aspirations of the people, much less majority demands, but were well known to be imposed by Delhi as they wished to make through the armed intervention in the 1971 war.
Three decades
Since then over the last three decades, the country has moved ahead by the underpinning strength of the Fifth Amendment that nothing came up posing any challenge. How come that some evil omen in 2005 came up with a case against the Amendment. Amazingly the bench judge of the High Court who declared the 5th Amendment illegal had already proved himself in another case as some one vindictive and against the victorious coup of August 1975.
Successful coup's indemnity
The successful coup of the 15th August 1975 by any account was not a simple murder case but victorious one that by itself had the indemnity of any bloodletting as is provided in law. There is no denying the fact that successful coup is a legal mode for political power ascendance. That was what happened following the August coup, first making Khondoker Moustaque the President of the Republic by the coup heroes on its own right and power of the victorious coup itself on the very day. Then followed the transfer of power from Moustaque to Justice Sayem in about three months (83 days) and then on to General Ziaur Rahman on the 29th November (1975) -all transfers of State power as a follow up of the lawful 15th August coup. These changes had come about one after another in sequences of continuity based on the lawful change of the 15th August 1975. In addition, Ziaur Rahman had the overwhelming 'yes' vote in the referendum made in 1977 for the President of Bangladesh. The Fifth Amendment was not made arbitrarily but in the duly elected Parliament in 1979 as a continuity of the national events and changes made through participatory democratic process all based on the successful coup of August 1975 that was given nod and due allegiance for further legitimacy by all concerned at home and abroad.
Silly
It was absolutely silly that the challenge of the Fifth Amendment was made in the court after 30 years. It was very stunning and possibly very injurious for the nation that the sort of judgment was made in the case for it implied so many vicious syndromes to obviously resurface before the nation and the country.
Vacuum
First, in the vacuum created by the judgment, shall the country go back to the constitutional position of the 4th Amendment as it was on the 25th January of 1975? Could now any party be in existence except the BAKSAL? How about even the Awami League and its chief now holding the position of the P..M. as the elected leader of the house and of the Awami League and not of the BAKSAL? How about the validity and legality of all administrative actions taken after the 15th August 1975 for about 35 years now? Could the 2009 parliament be legal or made legal and in what way? Could Sheikh Mujib's dead body dug out of the grave and placed as the President of the BAKSAL and of Bangladesh Republic as of today in 2009? Or else, could his daughter and now the P.M. be given legitimacy in power due to her being the legitimate inheritance? I am sure none could make any satisfactory reply to these questions today.
The Fifth Amendment's fate
It is a matter of simple common sense that even if the Fifth Amendment is to be done away with, one has to follow steps based on the same Amendment for the time being. That is, the present parliament as the continuity of the Fifth Amendment has to initiate a bill in the due process and then get that passed in the Parliament for scrapping not the Fifth Amendment proper but issues possibly one by one that constituted the Fifth Amendment.
Not easy
Such scrapping off would entail naturally the three issues involving the principles of the Constitution, and certainly the BISMILLAH at the top of the Constitution. Though this Muslim code words are not part of the Constitution, and its scrapping off involves no amendment process as such, but the task may not be that easy as some might have thought. The Muslims constituting 90% of the population emotionally attached to the code words BISMILLAH may play some havoc in case the issue is surfaced. Attempts to change the other three of the principles would face the same situation, I am afraid. Why should any government of Bangladesh go for the venture at all? Are these changes anyway needed to uplift the well being of the people of Bangladesh? I would suppose, not at all.
Underlying fallacies and spirit
On the contrary, I would argue that these principles if pursued in spirit, not in letters alone, may bring in better welfare in smoother way for in such case of development process people would have motivation for spiritual end. In fact, the Prophet of Islam induced the followers with this spiritual incentive to work and to do well to others. Abandoning spiritually inspired Islamic fraternity and going back for Bengali secular approach to society is no way worth for wholesome development in Muslim dominated Bangladesh society. People of Bangladesh are everywhere better known as Bangladeshi and not as Bengali, not even in passports issued by the Government. The so-called principle of secularism has even failed in the West so far as family solidarity and social cohesion for comprehensive peace are concerned. So far as the issue of socialism put up in the 1972 Constitution is concerned, that is almost a matter of bygone days except dictatorial Cuba and North Korea that can hardly be a model for development for the 21st century Bangladesh pursuing pluralism and multi-party democracy, on the one hand, and free market open policies appreciably with efficiency for the last three decades, on the other.
Inherent good
It is true that the spirit of the Fifth Amendment had hardly been implemented in Bangladesh but the spirit is inherent there and if stayed they might well be taken recourse to in future for social uplift and for increased productivity through materialization of what some authority rightly calls spiritual incentive.
Loss and gain
Going secular would no doubt please our big neighbor and some Western powers but that may not equally please our brothers in faith in many countries. The loss and gain have thus to be measured with care and for accuracy.