In the words of Justice Holmes, “a page of history is worth a volume of logic”. The history of Bangladesh is epoch-making in the sense that it is a saga of bloodshed, tears and sacrifices of millions of people. Since its independence, Bangladesh is a democratic People’s Republic and it is the mandate of the people that it is only the Constitution itself is the solemn expression of the people’s will and no other laws. But it is the irony of the nation’s fate that since the adoption of the Constitution, it has undergone so many amendments that it hardly has its original spirit, the spirit which motivated the Drafters to draft the First Constitution of
Bangladesh after its glorious birth through a long liberation struggle.
An unenviable feature of the 'constitutional development' of Bangladesh is that it had to withstand two extra-constitutional, i.e., Martial Law, regimes.
Later on the Fifth and the Seventh Amendments to the Constitution validated the Martial Law regimes, which raise a series of questions concerning their legality, both substantive and procedural. Can Parliament validate anything, which is otherwise invalid from its very beginning? Can a Martial Law
Proclamation amend any provision of the Constitution and can the Parliament give legal coverage to that amendment? Can Parliament amend any provision of the Constitution which is considered as a basic structure of the Constitution?
All these questions have been in the discussion for long 30 years. In 2000 through a writ petition1 the validity of the first Martial Law Regime was challenged, so was challenged the authority of the Martial Law Administrator and lastly in September, 2005 by a division bench of the High Court Division of Supreme Court, the Court in its historic judgment declared the Fifth
Amendment illegal and unconstitutional. Apart from declaring the 5th
Amendment