High Court Division’s Observation in Writ Petition No. 6016 of 2000 (5th Amendment to the Constitution of Bangladesh Case)

1.    Constitution of Bangladesh is the embodiment of the will of the people of the Republic of Bangladesh.

2.    Constitution is the Supreme law and all other laws and actions must confirm to it.

3.    Any law or action made in violation of the Constitution is void.

4.    All functionaries of the Republic owe its existence to the Constitution.

5.    The Legislature, the Executive and the Judiciary are the three pillars of the Republic, created by the Constitution, as such, are bond by its provisions.

6.    Likewise, the Defence Services, the Civil Services and all other services of the Republic owe its existence to the Constitution and must obey its commands.

7.    Proclamation of emergency can only be made by the President of the Republic on the advise of the Prime Minister, in case of imminent danger to the Security of the Republic.

8.    No person can delcare Martial Law if any body does he will be liable for high treason against the Republic.

9.    Constitution stipulates a Democratic Republic, run by the elected representatives of the people of Bangladesh but any attempt by any person or group of persons, how high so ever, to usurp an elected Government, shall render them liable for high treason.

10. The taking over of powers of the Government of People's Republic of Bangladesh with effect from the morning the 15th August, 1975 by Khandakar Mustak Ahmed, an usurper, placing Bangladesh under Martial Law and his assumption of the office of the President of the Bangladesh, 20th August 1975, were in clear violation of the Constitution, as such, illegal, without lawful authority and without Jurisdiction, consequently all his subsequent actions as the President of Bangladesh were illegitimate and void.

11. The taking over of the office of President of Bangladesh is favor of Justice Abu Sadat Mohammad Sayed, on the 6th day of November 1975 was beyond the ambit of the Constitution.

12. The taking over of the office of President of Bangladesh and his such entering in the said office on the 6th day of November 1975, by Mr. Justice Abu Sadat Mohammad, Sayem and his assumption of the Powers of the Chief Martial Law Administrator and appointment of the Deputy Chief Martial Law Administrator and the Proclamation dated 8th November 1975 were all in violation of the Constitution, as such, all his subsequent functions and actions as such President and / or the Chief Martial Law Administrator were illegitimate.

13. The handing over of the office of Martial Law Administrator to Major General Ziaur Rahman BU, PSC, by the aforesaid Abu Sadar Mohammad Sayem, by the 3rd Proclamation dated the 29th November 1976, enabling the said Major General Ziaur Rahman, to exercise all the powers of the Chief Martial Law Administrator being beyond the ambit of the Constitution, was illegal, without Lawful authority and without Jurisdiction. Consequently, all his subsequent functions and actions as such Chief Martial Law Administrator were illegitimate.

14. The nomination of Major General Ziaur Rahman, BU to become the President of Bangladesh by Abu Sadat Mohammed Sayem, the nominated President of Bangladesh on 21st April 1971 and also the handing over of the office of President to him, being beyond the ambit of the Constitution, was illegal, without lawful authority and without Jurisdiction.

15. The assumption of office of the President of Bangladesh by Major General Ziaur Rahman, BU on 21st April 1977, on nomination being beyond the ambit of the Constitution, was illegal, without any lawful authority. Consequently, all his subsequent functions and actions as such President of Bangladesh, without lawful authority and without Jurisdiction.

16. Since addition of Paragraph 3A to the Fourth Schedule to the Constitution by the Proclamations (Amendment) Order 1977 (Proclamations Order No. 1 of 1977) dated 23 April 1977 and as amended by the Second Proclamation Order No. IV of 1978, was made by a usurper and a nominated President, the Paragraph 3A to the Fourth Schedule is illegal, void and non-est in the eye of Law.

17. The Referendum Order, 1977 (Martial Law Order No. 1 of 1977) published on 1st May, 1977 unknown to the Constitution, being made only to ascertain the confidence of the people of Bangladesh in one person, namely, Major General Ziaur Rahman, BU.

18. Since Paragraph 18 to the Fourth Schedule (Translation Provisions) of the Constitution precluded Judicial Review defying and undermining the supremacy of the Constitution, this Provision is unconstitutional being beyond the power of Parliament under Article 142 of the Construction.

19. MLRs including the MLR VII of 1977 are also illegal.

20. Violation of the Constitution is a grave legal working and remain so for all time to come. It cannot be legitimized and shall remain illegitimate forever, however, on the necessity of the State only, such a legal wrong can be condoned in certain circumstances, invoking the doctrine of Status Populi est suprema lex.

21. Condonation of certain acts and provisions has been made as stated above but such condonation are made not because those are legal but only in the interest of the Republic, those shall remain illegitimate forever.

22. Condonations of provisions were made, among others, in respect of provisions, deleting the different provisions of Fourth Amendment. Condonation of provisions were also made in respect of the words "Bismillah-his-Rahmanir Rahm" but the provision deleting the original four fundamental principles of the Republic as enshrined in the original Constitution was not condoned.

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