Vol. 5 Num 450 Wed. August 31, 2005  
Front Page

Govt embarrassed over HC verdict
Late night appeal on PM's directive; eminent lawyers welcome declaration of 5th amendment illegal

The hurried move late Monday night to have a stay on the High Court's verdict declaring illegal the constitution's fifth amendment was initiated by Prime Minister Khaleda Zia herself, concerned that it might affect the image of late president Ziaur Rahman and the ruling BNP.

The eminent jurists and constitution experts of the country yesterday lauded the judgement while they criticised the government's hasty action to have it stayed.

Apparently, the High Court's order has put the government in an embarrassing position. The prime minister became worried on learning, rather very late, that it [the verdict] in fact had declared the rule of late president Ziaur Rahman illegal, sources in the Attorney General's (AG's) Office and some influential government lawyers said.

She [PM] came to know about the verdict at around 9:00pm during a weekly cabinet meeting on Monday night. Shortly afterwards, she called the Attorney General AJ Mohammad Ali to her office and asked him to take steps to have a stay order by the [same] night.

The AG accompanied by Deputy AG Humayun Kabir Bulbul, Assistant AG Mohammad Zafar, and Advocate on Record ASM Khalequzzaman went to the residence of Chamber Judge of the Appellate Division Amirul Kabir Chowdhury at about 11:30pm and had the stay order passed in 25 minutes, said soures.

The government took the High Court order as a matter of utmost urgency and felt to have it stayed immediately. They were [the government] so worried that some government high-ups stayed at Prime Minister's Office till late at night to know about the outcome of the actions aimed at securing the stay order and inform the prime minister of it, added the sources.

"As the matter deals with the constitution, we must examine its possible implications before it is made effective," said an influential government lawyer.

Meanwhile, the government has started checking the backgrounds of the two High Court Judges ABM Khairul Haque and ATM Fazle Kabir, whose bench pronounced the verdict, sources said.

"The government is looking into their backgrounds," said a source requesting anonymity.

The two judges began passing the verdict at 10:30am and with a brief lunch break went on till the end of day's business.

Law Minister Moudud Ahmed yesterday described the verdict as "valueless" and said it only had stirred some "temporary sensation".

On the other hand, lawyers and experts in the constitution yesterday blasted the government's acting too quickly to have granted the stay on the High Court ruling late at midnight Monday.

Besides, they hailed the verdict, saying it has proved that martial law cannot pervert the constitution.

"A number of issues have come up with this verdict. There will be opinions in favour [of the verdict] and against. But it's significant that it has showed that martial law cannot alter the constitution," observed noted jurist Dr Kamal Hossain.

Barrister Rafiqul Haq said, "In different times, many have verbally termed martial law rule illegal. But it is for the first time that a court has done so in a verdict."

Barrister Rokanuddin Mahmud said the verdict has restored the public confidence in the Supreme Court.

Referring to the Appellate Division's midnight stay order, he said the Supreme Court appears to be very sensitive to some cases while it sleeps on cases like Bangabandhu Murder Case. The discriminatory attitude of the Supreme Court has been exposed by its not placing equal importance on all the cases, he pointed out.

Dr M Zahir termed the verdict a good one but said the government need not have gone to the Appellate Division at midnight to obtain a stay order.

Khandker Mahbubuddin Ahmed, chairman of the parliamentary standing committee on law ministry, said moving for a court order late at night is nothing new. It has been done many times before.

Supreme Court Bar Association (SCBA) President Mahbubey Alam said, "The High Court ruling has rekindled some precious values, but the way the government moved to have stay on the order gave us the bare fact that it suffers from inferiority complex."

Senior Advocate of Supreme Court TH Khan said, "What's the use of bringing anew the issue at the forefront [of people's attention] when it has been settled once and for all 25 years ago."

Khan, also the former law minister of Ziaur Rahman regime, said the court order will create disorder in the country and give some quarters room to make issue out of it.

The petitioner's counsel Barrister Siddiqur Rahman Khan said, "It is very unusual for a government to rush to the Appellate Division at midnight. We were not aware of the government move."

Attorney General AJ Mohammad Ali defending the government action said, "We have done it and there is no need to ask why."

Sources said the reason why the government moved at midnight Monday was that it was not even aware of the verdict before 9:00pm. "Neither the policymakers nor the Attorney General's Office knew anything about the developments till that time," said a source.

The verdict came in response to a petition that claimed ownership of a property abandoned by martial law. Therefore, the AG Office did not attach that importance to it.

The government is now trying to find out the reasons behind the slackness and reluctance on the part of the AG Office during the proceedings. It is also probing why the AG Office had failed to inform the government of the verdict timely, the source pointed out.

The full bench of the Appellate Division will hear the government's appeal today (Wednesday).

The High Court verdict on Monday declared the fifth amendment to the constitution illegal, translating as the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem, and Maj General Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.

The judgement was stayed until today by Amirul Kabir Chowdhury, the chamber judge of the Appellate Division, following a leave to appeal petition filed by Attorney General AJ Mohammad Ali late Monday.