Writ challenges legality of 4th constitutional amendment

A writ petition was filed with the High Court on Wednesday, challenging the legality of the fourth amendment to the Constitution, enacted on 25 January 1975, during Bangabandhu Sheikh Mujibur Rahman's administration.

This amendment introduced the presidential form of government, replacing a parliamentary system and established one-party politics through the Bangladesh Krishak Sramik Awami League (BAKSAL), thereby ending multi-party politics.

Barrister ASM Shahriar Kabir told TBS that he submitted the writ on behalf of the petitioner, freedom fighter Mofazzal Hossain, on 23 October.

He said the petition is likely to be heard by the High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury next Sunday.

The petition seeks a declaration that the fourth amendment was unlawful, ultra vires (a legal term meaning beyond one's legal power or authority) of the Constitution, and inconsistent with the basic structure of the Constitution of Bangladesh.

It names the cabinet secretary, principal secretary at the chief adviser's office, secretary of the Ministry of Law, and the personal secretary to the law adviser as respondents.

According to the petition, the Constitution's fourth amendment destroyed the basic structure and disrupted the democratic polity. The amendment also changed the Constitution beyond recognition and destroyed its essential character.

The amendment replaced the democratic parliamentary system, based on a multi-party structure, with an authoritarian one-man presidential system founded on a single party, and was enacted overnight without any public mandate, the petition says.

Fundamental rights such as freedom of expression, association, and assembly were denied, with all political parties except the Awami League banned. Members of parliament who opposed the amendment lost their seats, despite being elected by the people.

Press freedom was eliminated, and judicial independence was compromised, with judges made vulnerable to removal at the discretion of the executive. Additionally, authority over appointments, control, and discipline of the subordinate judiciary, along with the Supreme Court's supervisory powers over lower courts, was stripped away, the petition states.

The petition argues that the fourth amendment exceeded parliament's constitutional authority to amend, rendering it ultra vires. It cites a violation of Article 142, which mandates that no amendment bill can proceed without clearly indicating the specific Article being amended in its long title. This requirement was not followed during the amendment process, making it void from the outset.

"The amending power of parliament is not unlimited, rather it is restricted and parliament cannot change the Constitution like parliament amends or repeals its laws. Without following the mandatory requirement, the said amendment essentially destroyed, damaged and affected the basic structure of the essential feature of the Constitution and as such, the amendment is ultra vires," reads the petition.

Barrister Shahriar told TBS, "The Constitution refers to the will of the people and the supreme law of the land and it enshrines the long-cherished hope and aspirations of the people. After the Liberation War, it is sad and shameful but true that the Awami League amended the constitution in a way that destroyed the basic structure or basic framework of our Constitution.

"It is our solemn duty to protect the Constitution to affirm its integrity and oneness. My client fought for the Liberation War, but the fourth amendment had taken away the dreams and aspirations of the fight for freedom."

He added that a legal notice was previously served on the relevant authorities on 18 October, requesting action to declare the Fourth Amendment to the Constitution illegal. Since there was no response, the writ petition was subsequently filed.