Declaring 5th Amendment void not lawful, says  Justice Matin

M Moneruzzaman | Published: 00:34, Dec 15,2019


A retired Appellate Division judge said that the Supreme Court verdict declaring the fifth amendment to the constitution made by martial law proclamations as unconstitutional was not permissible under the law.

The Supreme Court on February 1, 2010 passed the verdict in a case filed by the Italian Marble Work Limited over the ownership of the Moon cinema hall.

Justice Md Abdul Matin  made the observation while speaking as the chief guest at a discussion styled as ‘Twelve years after the separation of the Judiciary from the Executive’ on Saturday organised by the rights body Humanity Foundation at the National Press Club. 

Justice Matin was third on the five-judge Appellate Division bench led by chief justice Md Taffazzul Islam that on February 1, 2010 dismissed BNP secretary-general Khondker Delwar Hossain’s appeal challenging the High Court Division’s verdict declaring the fifth amendment as unconstitutional.

Taffazzul Islam penned the verdict and the four other judges agreed with him.

Justice ABM Khairul Haque was not included in that AD bench as the HC bench he led had declared the fifth amendment unconstitutional on August 28, 2005 in disposing of the writ petition disputing the ownership of the Moon cinema in Old Dhaka.

Justice Matin at the discussion said, ‘The Highest Court, particularly the Appellate Court, should not go out of any issue before it.’

‘As the issue of the Italian Marble Work’s case was to decide the Moon cinema hall’s ownership, you can’t say there whether amendments made to the constitution during the martial law regimes were incorrect,’ he further said.

‘It is not permissible under the law,’ he asserted.’

He gave the opinion while commenting on the event’s keynote paper statements as to why the Appellate Division, while issuing the 12-point directive to separate the judiciary, had not declared Articles 115 and 116 as ultra vires to Constitution, under which the government controlled the sub-ordinate courts.

Senior journalist Mizanur Rahman Khan presented the keynote paper in the discussion that was moderated by Bangladesh Bank former governor Salehuddin Ahmed.

Giving his reaction, Supreme Court lawyer Khurshid Alam told New Age that Justice Matin could not make such a remark nine years after the verdict to which he was a party.

‘It is unfortunate,’ he added. The separation of the judiciary from the executive came into effect on November 1, 2007.

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