SC releases full text of 13th amendment verdict
The Supreme Court on Sunday released the full text of its judgment that declared unconstitutional and illegal the Constitution (Thirteenth Amendment) Act, 1996 with prospective effect from May 10, 2011.
The full text of the verdict was released by former Chief Justice ABM Khairul Haque and six other judges of the Appellate Division – Justice Md Muzammel Hossain, Justice SK Sinha, Justice Md Abdul Wahhab Miah, Justice Nazmun Ara Sultana, Justice Muhammad Imman Ali and Justice Syed Mahmud Hossain.
The Appellate Division in a short order on May 10, 2011 had allowed by majority the appeal filed against the High Court judgment on the amendment.
It said the Constitution (Thirteenth Amendment) Act, 1996 is prospectively declared void and ultra vires the constitution.
The judgment, however, said the election to tenth and eleventh parliaments might be held under the provisions of the Thirteenth Amendment.
It said parliament, however, was at liberty to bring necessary amendments excluding the provisions of making former chief justices or the judges of the Appellate Division as the head of the non-party caretaker government.
Justice ABM Khairul Haque in his 16-point summarised judgment said the people were the owners of Bangladesh and were the sources of all power and sovereignty.
He said the government of Bangladesh was not the government of men but the government of law. The constitution is the supreme law of the country.
The judgment said the sovereignty of people, the republic, democracy and the independence of the judiciary were the fundamentals of the state and basic structure of the constitution.
It said the constitution did not approve of any kind of interruption in the democratic system.
The Supreme Court by its power of judicial review could declare any unconstitutional law illegal and strike it off, Justice Khairul Haque said.
Under article 142 of the constitution, parliament has the power to amend the constitution but cannot change the constitution by curtailing the fundamental principles of the state and its basic structure.
Justice Khairul Haque in his judgment said since the constitution (Thirteenth Amendment) Act, 1996 had truncated the fundamental principles of the state and basic structure, the controversial act would be declared unconstitutional and
illegal and therefore it stood void.
He said in case of holding the general elections, at the discretion of parliament, parliament should be dissolved at a reasonable time before the polls; the period may be 42 days.
However, the judgment said the incumbent cabinet which would be small in size would carry out normal and general functions of the state until the new cabinet takes over.
The judgement said although the Constitution (Thirteenth Amendment) Act, 1996 was unconstitutional and illegal, parliament at its discretion and decision could form a caretaker government in a new shape and dimension according to necessity at the time of holding elections to the tenth and eleventh parliaments.
It said since the announcement of the election schedule till the declaration of results, people directly involved with elections and the people who were indirectly involved under discretion of the Election Commission and all employees and officials of the republic would come under the control of the Election Commission.
It suggested restoration of article 56 (4) of the original constitution of 1972 replacing the article 56 (2).
‘We are all happy that all the judges delivered a good judgment,’ former chief justice ABM Khairul Haque told reporters on the Supreme Court premises after releasing the full text of the verdict at about 10:00pm.
He said incumbent Chief Justice MD Muzammel Hossain, Justice SK Sinha and Justice Syed Mahmud Hossain had agreed with his judgment while Justice Abdul Wahhab Miah and Justice Nazmun Ara Sultana and Justice Md Imman Ali disagreed.
On May 10, 2011, Justice Khairul Haque, pronounced the short order of the judgement in the appeal against the August 4, 2004 verdict of the High Court that had declared lawful the 13th Amendment to the constitution making the provision for an election-time non-party caretaker government.
Parliament on June 30, 2011 passed the Constitution (Fifteenth Amendment) Bill 2011, in the light of the short order of the verdict of the Supreme Court.
The Appellate Division delivered the judgement after hearing the appeal filed in 2005 by Supreme Court lawyers — the late M Saleem Ullah, Ruhul Quddus, now a High Court judge, and Abdul Mannan Khan — against the High Court’s verdict.
The sixth parliament passed the 13th Amendment Bill on March 28, 1996, incorporating the provision for the ‘non-party caretaker government’ in the constitution for holding free and fair general elections when political parties were waging a mass movement to pull down the BNP government elected on February 15, 1996.
The three Supreme Court lawyers on January 25, 2000 filed the writ petition challenging the 13th Amendment, saying that the democratic structure of the government was the basic principle of the constitution and people’s elected representatives should run every tier of the administration according to the preamble and Articles 8 and 69 of the constitution.
A special High Court bench of Justice Md Joynul Abedin, Justice Md Awlad Ali and Justice Mirza Hussain Haider, after hearing the writ petition, delivered the verdict on August 4, 2004, declaring legal the 13th Amendment.
Courtesy of New Age
