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Confusion over constitutionality of the 13th Amendment
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
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
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.
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.