Name: Minhazul Abedin

ID: 192-113-009
Batch: 42nd

FIFTH AMENDMENT
The depth of 5th amendment

Changes made to the constitution in around four years after the August 15, 1975 changeover
altered the fundamental principles of state policy, destroyed the secular character of the
constitution and allowed politics based on religion.
Besides , the changes replaced Bangalee nationalism with Bangladeshi nationalism, and
provided principal right to anti-liberation forces including jamat-e-Islami and war criminals that
resulted in an alarming growth of political parties and organizations based on religion. All those
amendment ,modifications, substitutions, omissions and additions to the constitution were
indiscriminately made during the martial law rule that began immediately after the
constitution’s fifth amendment bill passed in the second parliament during the rule of Ziaur
Rahman in 1979 ratified all the actions that also made the supreme law of the land subordinate
to martial law proclamations, orders and regulations.
The august of 29, 2005 High court verdict that declared the fifth amendment illegal also said it
undermined the very sovereign character of the public.
The supreme court on February 2 this year upheld the landmark HC verdict with modifications
and observations. Copy of the apex court judgment might be released soon. Article 8 of the
original constitution , which speaks of the four fundamental principles of state policy –
nationalism, socialism, democracy and secularism—was amended to omit secularism and insert
the words ‘’absolute trust and faith and almighty Allah’’.
The principle of socialism was also given a new explanation , saying, ‘’socialism would mean
economic and social justice’’.
Socialism and freedom from exploitation in articles 9 and 10 were substituted by the concepts
of promotion of local government institutions and participation of women in national life. The
amendment omitted article 12, which contained secularism and freedom religion. ‘’These
changes were fundamental in nature and changed the very basis of our war for liberation and
also defaced the constitution altogether,’’ the HC observed in its watershed verdict. The
changes transformed secular Bangladesh into a ‘’theocratic state’ and ‘’betrayed one of the
dominant causes for the war of liberation of Bangladesh’’.
Trail of war criminals stopped and their political rehabilitation began with the scrapping of
Bangladesh collaborators (special tribunal) order 1972 by Khandaker mushtaque ahmed, who
assumed presidency and put the country under martial law following the killing of
Bangabandhu.
By the second proclamation on May 3, 1976, justice Am sayem, who become president later,
omitted the proviso the article 38 to the constitution, which banned politics based on religion.
In the light of the proviso, the special powers Act provides for punishment for use of religion for
political purpose.
But proviso radically altered the nature of political activities in the country. It led to the rise of
religion-based political parties, which were constitutionally banned immediately after the
independence for their anti-liberation role. The constitutional bar on war criminals convicted
under Bangladesh collaborators order 1972 from becoming voters and contesting
parliamentary elections was also lifted during the rule of Zia. During the military rule , Zia
brought some fundamental changes to the constitution by a proclamation on April 23, 1977.
The preamble to the constitution was preceded by “ Bismillah-ar-Rahman-Rahim” (in the name
of Allah, the Beneficent, the Merciful).
The preamble also underwent two changes – the words “a historic struggle for national
liberation” were replaced with “a historic war for national independence”, and “nationalism,
socialism, democracy and secularism” were replaced with “absolute trust and faith in Almighty
Allah, nationalism, democracy and socialism meaning economic and social justice”.

Changes made by the 5th amendment

The 5th amendment brought about, inter alia, the following important changes in the
Constitution.
1. Part VIA of the constitution dealing with one party system as introduced by the 4 th
amendment omitted.
2. The independence of the judiciary which was completely destroyed by the 4 th amendment
was restored partially (Articles 96 and 116).
3. The jurisdiction of the high court division of the supreme court to enforce fundamental rights
was restored to its original position as was in the original constitution (Article 44 and 102).
4. Provision of supreme judicial council in respect of security of tenure of the judges of the
supreme court was inserted (Article 96)
5. The provision of the absolute veto power of the president introduced by the 4 th amendment
was abolished (Article 80).
6. Provision of referendum in respect of amendment of certain provisions of the constitution
was inserted and to that end a new clause IA was created in Article 142.
7. Religious words ‘’Bismillahir Rahmanir Rahim’’ was inserted in the beginning of the
constitution i.e. above the preamble.
8. In the original constitution it was provided in Article 6 that the citizens of Bangladesh would
be known as ‘Bangalees’. But this was changed and it was provided now that citizens would be
known as ‘Bangladeshis’.
9. One of four major fundamental principles of the states policy ‘secularism’ was omitted and
its place a new one ‘the principle of absolute trust and faith in the Almighty Allah’ was inserted
(Aet.8).
10. One of four major fundamental principles of state policy ‘secularism’ was given a new
explanation to the effect that socialism would mean economic and social justice(Article 8).
11. A new article 145A was created where it was provided that all international treaties would
be submitted to the president who should cause them to be laid before parliament.
12. Another new Article 92A was created where by the president was given power to expend
public moneys in certain cases.
13. Article 58 was amended to the effected that four-fifths of the total number of ministers
should be taken from among the members of parliament. It was also provided that the
president would appoint as Prime Minister the Member of Parliament who appeared to him to
command the support of the majority of the parliament.

Merits of the Amendment

To compare with the 4th amendment the 5th amendment introduced some important
democratic provisions to pave the way, albeit in a limited sphere , for constitutionalism.
Firstly , dictatorial one party system which had been a permanent block to constitutionalism
was abolished and multi-party democratic system as was adopted in the original constitution
was restored which again open the door of liberal democracy and constitutionalism.
Secondly, all fundamental rights which were reduced into meaningless versions of the
constitution were now again given their full life and enforcement by reverting Article 44 of the
constitution to its original position of 1972.
Thirdly, the independence of the judiciary specially the constitutional status and sanctity of the
supreme court was restored. Through the unhealthy provisions introduced by the 4 th
amendment relating to appointment of judges were left untouched, the provisions for security
of tenure which is the first and the most important condition of independence of judiciary was
restored by providing a healthy device of supreme judicial council. Moreover, in respect of
control including the power of posting, promotion and grant of leave and discipline of the
subordinate judges and magistrates which was vested absolutely in the president under the 4 th
amendment, it was provided that the president should exercise that control in consultation
with the supreme court. Thus constitutional aspect of independence of both higher and lower
judiciary was restored.
Fourthly, the undemocratic provision of absolute veto power of the president introduced by the
4th amendment were abolished. Thus the democratic principle of check and balance between
the president and the parliament particularly in the number of law-making was restored.
Fifthly, insertion of the provisions of referendum in respect of certain important provisions of
the constitution is a healthy one. Because it now provides a check the parliament to make any
abrupt but fundamental change in the constitution overnight as was done by the 4th
amendment. Now a party even with two-thirds majority in the parliament will have to think
twice before making fundamental change in the constitution.
Fifthly, insertion of the provision of referendum in respect of certain important provision of the
constitution is the healthy one. Because it now provides a check on the parliament to make any
abrupt but fundamental change in the constitution overnight as was done by the 4th
amendment. Now a party even with two-thirds majority in the parliament will have to think
twice before making a fundamental change in the constution.

Demerits of the Amendment

Firstly, as regards the composition of the parliament, the number of reserved seats for woman
was increased from 15 to 30 and the period this provision was to remain in force was extended
from 10 to 15 years. This provision enabled the Zia government to manage two-thirds majority
in the parliament. On the other hand, this provision undermined the spirit of representative
government in Bangladesh, for these reserved seats of women members in the parliament
works as a balance of power and the ruling party in the parliament uses them as tools to satisfy
their undemocratic political purpose.
Secondly, this amendment inserted a new Article 145A relating to international treaties. It
provided that all treaties with foreign countries should be submitted to the president who
should cause them to be laid before parliament but there was a significant sub-clause that ‘no
such treaty should be so laid if the president laid if the president would consider it to be against
the national interest so to do’. This proviso has virtually curtailed the parliament’s power in
relation to international treaties ignoring the parliament. In a true presidential as it exists in the
USA the president cannot make any treaty without the approval of the parliament.

Nature of the Governmental system after the 5th Amendment

The above discussion makes it clear that the 5th amendment actually modified and somewhere
liberalized the relations among the institutions of the government introduced by the 4 th
amendment. It didn’t change the fundamental structure of the constitution as introduced by
the 4th amendment. Nor did it make the whole system a democratic one to pave the full way for
constitutionalism. And also that cannot be expected particularly from a military government
who comes to power completely in an illegal way. The governmental system as it stood after
the 5th amendment was neither a true presidential system as in practiced in the USA nor a
parliamentary one as is practiced in the UK. Neither was it the same presidential system as is
practiced in France where the prime minister and his cabinet are collectively responsible to
parliament. The presidency as modified by the 5th amendment was much more powerful than
the presidency under the French constitution. It was really a class apart, an all powerful
exclusive ridden presidential system which armed the president with all devices to administer
his dictatorial rule. This model bore similarities to that of Ayub khan of Pakistan. The executive
authority was vested with the president, who was directly elected by the people for the period
of five years although without a limit to the number of terms in office. Once elected it was
quite impossible to remove them from office, from the impeachment procedure as introduced
by the 4th amendment was unprecedentedly a difficult one. The amendment did not repeal any
of the extra-ordinary constitutional devices like emergency, ordinance making, preventive
detention etc. through which was president was capable of exercising almost dictatorial power.
The president was also the chief legislative initiator through his power to address and power of
dissolution of parliament was kept restricted in many important cases. Zia’s system was,
therefore, neither a fully democratic responsible government; nor was it an ever hated one
party dictatorship as introduced by Mojib. It was multi-party presidential system blended of
democratic and autocratic features.

Fifth Amendment

This amendment act was passed by the jatiya sangsad pn 6 April 1979. This act amended the
fourth schedule to the constitution by adding a new paragraph 18 thereto, which provided that
all amendments, additions, modification, substitutions and omissions made the constitution
during the period between 15 august 1975 and April 1979 (both days inclusive) by any
proclamation or proclamation order of the Martial Law Authorities had been validly made and
would not be called in question in or before any court or tribunal or authority on any ground
whatsoever.
Eighth Amendment

The constitution (Eighth Amendment) Act was adopted by the fourth parliament on 7 th June,
1988. It introduced the following changes in the constitution:
1. The word ‘Bangali ‘ was replaced by the word ‘Bangla’ in article 3 of the constitution.
2. The word ‘Dacca’ was replaced by the word ‘Dhaka’ in article 5 of the constition.
3. A new article 2A was created where it was provided that “The state religion of the
republic is Islam but other religions may be practiced in peace and harmony in the
republic”.
4. Two sub-classes [30(1) & 30(3) of Article 30 were omitted. Now, therefore, there
remained no bar for the state to confer title, honour or decoration.
5. Articles 100 and 107 were amended and provisions were inserted for setting up six
permanent Benches of the high court division of the supreme court in the historic 8 th
amendment case nullified the same as unconstitutional.
It is needless to say that this amendment was not done not to face any real situation; a sinister
looking political purpose of Ershad worked behind this Amendment. Though Ershad legalized
his seizure of power and long time actions as CMLA through an elected parliament, he was not
treated as legitimate ruler by the opposition. The opposition from the very beginning began to
look upon Ersad’s attempts with suspicion. There was continued movement against his regime.
On the way to subdue this continued movement, he first, as a follower of Zia, took the religion
‘Islam’ as a handy weapon to use it as a posture of his activities so that he could gain the
support of the largest section of illiterate population who are religious but politically
unconscious. To that end in view he inserted ‘Islam’ as the state religion in the constitution
through the 8th Amendment. As a commentator says, frustrated by the failure to acquire
legitimacy through electoral process, the regime resorted to widen its support-base by
exploiting the religious sentiment of the country’s overwhelming majority of Muslim
population. Because of the marginal representation of opposition in parliament and its leader
known throughout the country as ‘loyal opposition leader’ the bill caused more uproar outside
the parliament than inside it. Almost all major opposition parties, including the ones
propagating Islamic dogmatism opposed the amendment bill. It was opposed on such grounds
as: (1) the bill was politically motivated; (2) the amendment would constitutionally divide the
nation into majority and minority; (3) it would have bad impact on the communal harmony in
the country; and above all, (4) the parliament itself was illegal and therefore, had no moral right
to amend the constitution.
REVIEW OF A CONSTITUTIONAL AMENDMENT

This essay seeks to discuss briefly two fundamental issues concerned with judicial review of
constitutional amendment in Bangladesh, such as – on what grounds a constitutional
amendment could be held repugnant and how the court would justify exercise of its judicial
power to hold a constitutional amendment repugnant. In other words, what legal criteria the
court should rely on for deciding validity of a constitutional amendment, and how the court
would account for its jurisdiction in deciding validity of a constitutional amendment.

In view of the background legacy of Bangladesh legal system, it appears that a constitutional
amendment could be adjudged repugnant at least on three grounds namely, lack of legislative
competence, lack of procedural compliance and lack of substantive compatibility. Invariably,
lack of legislative competence refers to a situation when any legislative body or authority brings
in a constitutional amendment despite having no power to do so. Examples will include
promulgation of ordinance by the president seeking to amend the Constitution. Similarly,
passing an amendment bill by a simple majority of its members of parliament will typify lack of
procedural compliance. And lack of substantive compatibility will occur if any constitutional
amendment stands at so much odds with the existing constitutional provisions or introduces so
much changes that even harmonious interpretation cannot rub down their mutual
incongruences.

As a matter of fact, the aforementioned grounds came into discussion before the court in a
number of cases concerning validity of constitutional amendments. For example, the grounds
on which the Supreme Court has annulled the 5th constitutional amendment [Italian Marble
Works Ltd v Bangladesh (2010) 62 DLR 70] and the 7th constitutional amendment [Siddique
Ahmed v Bangladesh (2011) 63 DLR 565] include lack of legislative competence and lack of
procedural compliance. Again, the matter in issue in the cases concerning validity of the 8th
constitutional amendment [Anwar Hossain Chowdhury & Others v Bangladesh (1989) BLD (SPL)
1] or the 13th constitutional amendment [Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD)
169] was mainly substantive compatibility.

Undeniably, among the above-mentioned grounds, determining substantive compatibility of a

constitutional amendment vis-à-vis the Constitution is the most difficult task because in the last
resort a constitutional amendment is also a part of the Constitution. Therefore, determining
validity of a constitutional amendment vis-à-vis the Constitution necessitates a special and
convincing tool. The Supreme Court resolved this issue in the 8th Amendment Case by laying
down a test for determining substantive compatibility of a constitutional amendment vis-à-vis
the Constitution – which is famously known as 'the basic feature doctrine' or 'the basic
structure doctrine'. In many respects, the 8th Amendment Case could be designated as the
most important case in the history of the legal system of Bangladesh. One such reason is that it
marked the beginning of judicial review of constitutional amendment in Bangladesh.

Besides, the Supreme Court, in the 8th Amendment Case, explained the legal basis of its
jurisdiction to review validity of a constitutional amendment. In particular, Justice Badrul Haider
Chowdhury argued that the authority to decide constitutionality of any laws including a
constitutional amendment was vested in the Supreme Court in virtue of article 7 of the
Constitution. The aforesaid argument was later followed in the cases in which the Supreme
Court declared a number of constitutional amendments repugnant (see Kawser Ahmed,
'Misreading or Leapfrogging? SC's Power to Review Constitutional Amendment', The Daily Star,
22 August 2017, p. 12).

Evidently, the majority of judges in the 8th Amendment Case heavily drew on jurisprudence
from Indian jurisdiction in shaping their ideation of the basic feature doctrine. Unfortunately, the
judges seemed to have overlooked the fact that the Constitution of Bangladesh did contain
tangible hints on the basis of which an indigenous doctrine could have been viably developed so
as to accommodate judicial review of constitutional amendment on the grounds of lack of
substantive compatibility.

For instance, the original article 26of the Constitution unqualifiedly provided that laws which
were inconsistent with the fundamental rights would become void and no laws would be made
inconsistent with the fundamental rights. By the second constitutional amendment, a new clause
was inserted into article 26 providing that the earlier two clauses [26(1) and 26(2)] of the same
provision would not apply to any constitutional amendment. The aforesaid amendment endorses
the fact that the legislators viewed constitutional amendments as more on a par with 'other laws',
and for the same reason, excepted them from judicial review if they were inconsistent with the
fundamental rights. To put it differently, article 26(3) implies that constitutional amendments are
susceptible to judicial review and could be held repugnant for being inconsistent with any
provisions of the Constitution other than the fundamental rights. Hence, it appears that any
theory of judicial review of constitutional amendment in Bangladesh context must take account
of article 26 of the Constitution if it wants to claim itself as complete.

Anawar hossain chowdory vs Bangladesh (8th Amendment)

1. 1. Group: Kudrat-E-Elahi Panir

2. Anwar Hossain Chowdhury Vs Bangladesh(8th Amendment). Group leader: Soeb Aktar
(26) Group members: Aminul Islam (23), Fahmida Akter (28), Riad Arefin (29), Fazle
Azam (38), Tareq Hasan (42), Rakib Moral (48), Nahim Hasan (60), Riduan Shahria (86),
Najmus Sakib (111), Ishraque Labib (116), Ahmed Fahim (176), Jyotirmoy Gain (Re-
admission).

8th Amendment Case Honorable Judges Invalidated Article 100 Judgment in a Nutshell
Comments

3. In the High Court Division, the appellants challenged the constitutionality of amended
Article 100 of the Constitution as amended by Eighth Amendment Constitutional Act.
The High Court Division dismissed the petitions summarily. In the Appellate Division, the
Amendment in Article 100 was challenged on the question whether the Amendment
 altered the Basic Structure of the Constitution. 3 learned Judges found that the plenary
judicial power of the High Court Division over the entire Republic is a basic structure of
the Constitution and having destroyed the plenary judicial power of the HCD the
Amendment altered the basic structure of the Constitution and is, therefore, ultra vires.
4. 1) Badrul Haider Chowdhury J. 2) Shahabuddin Ahmed J. 3) M.H. Rahman J. 4) A.T.M.
Afzal J. (Dissenting)
5. The Invalidated Article 100 100. Seat of Supreme Court 1. Subject to this article, the
permanent seat of the Supreme Court shall be in the capital. 2. The High Court Division
and the Judges thereof shall sit at the permanent of the Supreme Court and at the seats
of its permanent benches. 3. The High Court Division shall have a permanent bench in
Barishal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent bench
shall have such Benches as the Chief Justice from time to time determine. 4. A
permanent bench shall consist of such number of judges of the High Court Division as
the Chief Justice may deem it necessary to nominate to that Bench from time to time
and on such nomination the Judges shall be deemed to have been transferred to that
Bench. 5. The President shall, in consultation with the Chief Justice, assign the area in
relation to which each permanent bench shall have jurisdictions, powers and functions
conferred or that may be conferred on the High Court Division by this constitution or
any other law; and the area not so assigned shall be the area in relation to which the
High Court Division sitting at the permanent seat of the Supreme court shall have such
jurisdictions, powers and functions. 6. Chief Justice shall make rules to provide for all
incidental, supplemental or consequential matters relating to the permanent Benches.
6. Badrul Haider Chowdhury J. The validity of a Constitutional Amendment lies in the
touchstone of Article 7 Amendment implies an improvement on the existing provisions.
There is difference between High Court Division and High Court. Amendment of Basic
Structure. Violation of Articles 44, 94 and 102 of the Constitution.
7. Shahabuddin Ahmed J. The impugned Amendment has broken the oneness of the High
Court Division. Meaning of Amendment ,what actually means by the word
‘Amendment’. Amendment of the constitution is not included in "law" within the
meaning of Article 7 in the same way as it is not law in Article 26. Preamble is a guide to
the interpretation of the Constitution.
8. M.H. Rahman J. The validity of a Constitutional Amendment can’t be examined on the
touchstone of Article 7 and Preamble is the Pole Star of the Constitution and the
impugned Amendment is to be examined in the light of the Preamble. Appeals were
only concerned with a basic feature “Rule of law” which was impaired by this
amendment.
9. A.T.M. Afzal J.(Dissenting) Rejected the idea of Basic Structure. There is no substantive
limitation in Article 142. The word Amendment has a built in limitation. The plenary
jurisdiction of the judges of HCD has remained unaffected. Words in singular shall
include plural and vice versa. It is sufficient, if it is mentioned that a provision or certain
provisions will be amended. Assigning the areas is not a part of the Legislative function
and it is only a ministerial act. Effective and substantial consultation taken place
between the President and the Chief Justice. Rules made by Chief Justice are not ultra
vires to the Constitution.
10. In this case, the provisions regarding Basic Structure in our constitution have not been
clarified. The learned assenting Judges held the view of “Textual Interpretation”
regarding Basic Structure. The Doctrine of Basic Structure should be neither so rigid nor
so flexible.

Question time is on… Any Question?

11. THANK YOU!!