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Reprint Vs.

Amendment Dispute
MD. RAISUL ISLAM SOURAV
On 30 September 2010, the then newly appointed Chief Justice AB !hairul "a#ue
after ta$in% sworn re#uested to law ministry to reprint the Constitution since the
pro&isions of ori%inal constitution that were either repealed or amended by martial law
proclamations, ha&e automatically been restored into the constitution e'clusi&ely after the
&erdict of the Appellate (i&ision re%ardin% the fifth amendment)
Because of this announcement, some of our lawyers and politicians en%ross with a
redundant debate on the conclusi&e power of parliament to amend the constitution) *he
debate is entirely superfluous and as an attempt to ma$e Justice "a#ue contentious as he
mi%ht lead the ne't careta$er %o&ernment as chief ad&iser +as of their opinion,)
"i%hest court is a source of ma$in% law) Supreme Court of Ban%ladesh has e&ery power
to formulate laws and amend laws by &irtue of Art) - and 111 of our constitution) .e are
under the system of constitutional supremacy while /nited !in%dom e'ercisin%
parliamentary superiority) *here is a ma'im on preeminence of /! parliament that they
do and undo e&erythin% e'cept turnin% a man into a woman and &ise &ersa)
Constitutional supremacy means constitution is superior o&er the parliament and court
can declare &oid any law passed by house of the nation, if that law is inconsistent with the
constitution +Art) -+2,,) oreo&er, it is the solemn responsibility of the court to protect
the constitution from those types of &iolation and lawma$ers appoint them as custodian
of the constitution)
SC continuously ma$es law by its &erdict and this 0ud%ment is obli%atory o&er inferior
courts) "ence, by ma$in% precedent SC also wor$s as a source of law) 1urther, the laws
made by the parliamentarian are not beyond defect) Court is the principal sector of
implementin% these laws and when it finds any difficulties to apply it then the court will
resol&e the matter by le%al elucidation) 2t is reco%ni3ed principle in le%al arena that laws
made by the court ha&e e#ual effect as of the parliament) 4&en a hundred years old ritual
can be a law after %ratifyin% some conditions) So, le%islature is not the only factory of
ma$in% law)
A number of pleaders and politicians are not able to reali3e the discrepancy between
reprint and amendment) Ob&iously, parliament has the ri%ht to create law or amend
constitution) But, reprint of the constitution is not amendment of constitution)
*he special JS committee, which is formed for the amendment of the constitution, can
scrutini3e e&ery facet of amendin% constitution and parliamentarian can amend
constitution at any time if they wish) 2n this case court neither crossed it5s limit of power
nor %rabbed authority of parliament) A clear line is subsistin% between the authority of
0udiciary and le%islati&e body)
2n our country house can5t do and undo e&erythin%) 2t can5t %i&e le%ality of an ille%al
acti&ity which was %i&en by the second parliament in 16-6) Some of the members of that
parliament are today cryin% for the so7called &iolation of constitution8 .here was their
this sense of &iolation when r) 2a0uddin too$ oath as chief ad&iser of the pre&ious non7
party careta$er %o&t) by &iolatin% supreme charter of the land9 *hey %a&e le%ality of all
actions, orders of the martial law re%ime in between Au%ust 1:, 16-: to April 6, 16-6)
*he parliament cannot ratify and &alidate those unconstitutional acts of usurpers)
Constitution and martial law can5t e'ist simultaneously) Constitution could not be
amended throu%h martial law proclamations and re%ulations) 2t is only the authority of the
parliament that can amend the constitution +J "a#ue said in Bangladesh Italian Marble
Worker Ltd. V o!t. o" Bangladesh # Others$ B;* +Special issue, 200<, "C(,,)
.hen =iaur >ahman altered their lo&in% +9, constitution by martial law proclamations,
where was their affection9 .ho try the ille%al acti&ities, which were done durin% the
period of =ia by tramplin% constitution9 "ouse of the nation can5t alter whole of the
constitution) .e the mass people elect them to ma$e laws for us but that do not mean we
also %i&e authority to chan%e basic structure of our constitution)
.hether the constitution will reprint or not is not essential to uphold the decorum of the
constitution) 2t is mere reprintin% by which e&eryone will be able to $now the actual
pro&isions of constitution) 1rom the &ery moment of declarin% the &erdict of fifth
amendment case +oon cinema hale case, the chan%ed pro&isions were automatically
substituted by the prior pro&isions into the constitution) 2f the modus operandi by which
constitution was chan%ed is cancel then it is needless to say the chan%ed pro&isions are
also withdrawn)
?ow, who rise the #uestion of &iolation of the authority of le%islature by 0udiciary, they
did the same when court said to do that) .hen another despotic ruler altered the basic
structure of the constitution by settin% up "C benches outside of the capital and court
declare that &oid in 16@@) 2n 1661 they 0ust reprinted the constitution with Art) 100) 2n
doin% so, the parliament didnAt need to pass any act to amend the constitution as the
chan%e was ille%al) ere deli&erin% the news of cancellation of :
th
amendment to the
members of parliament is ade#uate) 4r%o, their today5s sympathy for the constitution is
meanin%less and they done this with a mal intention to create a contro&ersy and ta$in%
ad&anta%e from this as well)
.here law minister remar$ed constitution has automatically been return to it5s ori%inal
form by the &erdict and a di&isional bench of "C( ha&e already been %i&en a &erdict +on
0B)10)510, by inspirin% the 0ud%ment of :
th
amendment case that now Ban%ladesh is a
secular country and no one can force anyone to wear reli%ious apparels, there this type of
unnecessary debate is not only unpredictable but also an'ious for us)
;e%islature and 0udiciary is two separate or%an of the state) Both of them ha&e e#ual
obli%ation to ser&e the nation) A fa$e alle%ation is enou%h to destroy chec$ and balance
of power) 2f our politicians can ma$e parliament as a centre of e'ercisin% democracy then
0udiciary will also %et relief from declarin% martial law proclamation &oid) 25m optimist
that our cream of the crop will thin$ it
MD. RAISUL ISLAM SOURAV
Student +;;),
(epartment of ;aw
?orthern /ni&ersity Ban%ladesh +?/B,
47mailC soura&)mollic$D%mail)com
Cell7 01612 26@ 12<E
10 October 2010E (ha$a)