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July 27, 2003 

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Confusion over constitutionality of the 13th Amendment

Law Desk

At last on 21 July the High Court Division bench comprising Justice Shah Abu Nayeem Mominur Rahman and Justice Abdul Awal referred the 13th Amendment case to the Chief Justice for formation of a full bench of the High Court Division to decide whether the 13th amendment had actually amended the constitution or not.
The ruling came after a writ petition was filed by Advocate M Salimullah challenging the legitimacy of the 13th amendment.
During hearing of the case on 20 July, Additional Attorney General Fida M. Kamal challenged the jurisdiction of the bench for hearing the case as the case had already been resolved by another bench of the High Court Division.
It is mentionable here that advocate Mohammad Mashiur Rahman had filed a similar writ petition challenging the 13th Amendment. On July 25, 1996, a High Court Division bench of Justice Md. Mozammel Haque and Justice Md. Abdul Matin summarily rejected the petition. In that judgement the court said, "It appears from the provisions of the 13th Amendment Act that the Legislature very cleverly put the word 'ineffective' for a limited period and after that period the provisions will revive automatically. Since the provisions of the 13th Amendment Act do not come within definition of alteration, substitution or repeal of any provision of the Constitution and since for temporary measures some provisions of the Constitution will remain ineffective, we do not find any substance in the submission of the petitioner that Article 56 of the Constitution had in fact been amended by the 13th Amendment. On the face of the 13th Amendment Act it appears that those provisions were made only for a limited period for ninety days before holding general elections. We find that no unconstitutional action was taken by the Legislature."
Citing this judgement, the Additional Attorney General told the court that a High Court bench cannot differ with a judgement on the same issue pronounced by another bench of the High Court Division having the same power and status. He added that according to the High Court Rules, if a High Court Division bench intends to differ with an earlier judgement of the High Court Division, the bench had to refer the case to the Chief Justice for constitution of a larger bench or for haring the full bench to dispose of the case. He finally proposed that the court refer the case to the Chief Justice.
The court then asked for the opinion of the counsels of other parties to the case. Petitioner's counsel M. I. Farooqui and Awami League's counsel Barrister Amirul Islam supported the contention of Fida M. Kamal. The court declared that it would pass its order on the issue next day on 21 July.
It can be noted here that earlier on July 14 last the same court asked the government whether the 13th Amendment to the Constitution, which made the provision of Caretaker Government, was a basic structural change of the Constitution or not, and whether any referendum was held.
While passing this order on 22 July the Bench rendered following important observations contrary to the earlier judgement:
Firstly, the 13th amendment had actually altered the constitution. Articles 58 A, B, C, D and E of the constitution dealing with the caretaker government are an addition. And addition of any new provision amounts to an amendment, according to article 142 of the Constitution.
Secondly, Article 48(3) requires the president to act in advice with the Prime Minister in all cases but appointments of the Prime Minister and the Chief Justice. But the 13th amendment provides that the president will appoint the Chief Advisor to the caretaker government independently. The amendment also provides that Article 48(3) will remain ineffective during the tenure of the caretaker government, which amounts to an amendment of article 48(3).
And thirdly, according to Article 56, the head of the executive -the Prime Minister- will be appointed from the elected representatives of people i.e. members of parliament. As the caretaker government is run by non-elected people, it goes against the constitution's basic principle -- a democratic structure of the government based on elections.
Thus, the court observed that the 13th amendment had gone against the preamble and Articles 48(3) and 56 of the Constitution. According to Article 142, referendum is a must for amending the preamble to or any provisions of Articles, 48 and 56, which was not done after the amendment.

Taking a glance at the case
The writ was filed on January 25, 2000 upon which a rule nisi was issued. After a lengthy break, the rule came for hearing on July 20, 2003 when the government attorney suggested that the case be heard by a full bench of at least three judges. Eventually on July 21, 2003 this order was passed. It can be noted here that the Constitutional 13th Amendment Act was passed in 1996 to introduce the caretaker government.


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