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Some of the greatest constitutional cases begin with small disputes. The Fifth Amendment case started with a cinema hall in Dhaka. It ended with the Supreme Court declaring that the martial law regimes that governed Bangladesh from 1975 to 1979, and the constitutional amendment that had given them legal cover, were unconstitutional. Few judgments have had a greater effect on the text of the Constitution.

The Background

The Moon Cinema in Dhaka belonged to Bangladesh Italian Marble Works Ltd. In 1977, under a Martial Law Regulation, it was declared “abandoned property” and handed to the Muktijoddha Kalyan Trust. The owners challenged that decision. The difficulty they faced was the Constitution (Fifth Amendment) Act 1979, passed by the Second Parliament. It had ratified and confirmed all proclamations, martial law regulations and orders made between 15 August 1975 and 9 April 1979, and declared that they could not be questioned in any court. To win back the cinema, the owners had to challenge the Fifth Amendment itself.

The High Court Division Judgment (2005)

On 29 August 2005, a Division Bench of ABM Khairul Haque J and ATM Fazle Kabir J declared the Fifth Amendment void. In a long judgment, Khairul Haque J held that the Constitution is the supreme law and that no one, whether a military ruler or a Parliament ratifying his acts, can suspend or override it. Martial law has no place in the constitutional scheme, and seizing power outside the Constitution is a grave legal wrong. The court refused to condone the changes the martial law regimes had made to the Preamble and to several Articles, including those dealing with secularism and the prohibition of religion-based politics.

The Appellate Division Judgment (2010)

The petitions for leave to appeal, including one by Khondker Delwar Hossain, then Secretary General of the BNP, were heard by a six-judge bench of the Appellate Division. On 2 February 2010, the court dismissed them and upheld the High Court Division’s judgment with modifications. The full judgment, written by Chief Justice Md Tafazzul Islam, followed in July 2010.

The Appellate Division agreed that the Fifth Amendment and the martial law proclamations were void. It applied the doctrine of necessity to condone past acts, so that decisions taken during those years, and rights built on them, would not collapse overnight. Some provisions were condoned only temporarily. The court also modified parts of the High Court Division’s judgment, for example leaving in place the words “Bismillah-ar-Rahman-ar-Rahim” at the head of the Constitution. The judgment expressed the hope that the nation would bid farewell to extra-constitutional adventures forever.

The Aftermath

The judgment led directly to the Constitution (Fifteenth Amendment) Act 2011, passed on 30 June 2011. That amendment restored secularism as a fundamental principle of state policy and inserted Article 7A, which makes it an offence to abrogate or suspend the Constitution by unconstitutional means. The Fifteenth Amendment also made other major changes, including abolishing the caretaker government system, which has itself been the subject of later litigation. In December 2024, the High Court Division struck down several parts of the Fifteenth Amendment, including Article 7A. As for the Moon Cinema, the owners finally received compensation of nearly Tk 100 crore in December 2019.

Why It Matters

The Fifth Amendment case is the strongest statement by Bangladeshi courts that the Constitution cannot be displaced by force. It applies the basic structure doctrine of the Eighth Amendment case to an amendment that ratified military rule, and holds that Parliament cannot give constitutional legitimacy to acts that were never lawful. It also shows the courts’ practical approach to past illegality: declaring acts void while preserving stability through condonation.

Critics have argued that the judgment was political, and that courts should not rewrite decades of constitutional history. Supporters see it as the courts doing exactly what a written Constitution requires: holding every exercise of power, however old, to its terms. For students, the case is essential reading on constitutional supremacy, the limits of the amending power, and the doctrine of necessity.

Sources

1. Fifth Amendment judgment (PDF): http://www.dwatch-bd.org/5th%20Amendment.pdf
2. Library of Congress, Global Legal Monitor, Bangladesh Supreme Court rules on constitutional amendment (9 March 2010): https://www.loc.gov/item/global-legal-monitor/2010-03-09/bangladesh-supreme-court-rules-constitutional-amendment-allowing-religion-based-parties-illegal/
3. ISAS (NUS), Bangladeshi courts and the Fifth Amendment: https://www.isas.nus.edu.sg/wp-content/uploads/media/isas_papers/ISAS%20Insights%20113%20Bangladeshi%20Courts.pdf
4. The Daily Star, Moon Cinema owner gets Tk 100 crore: https://www.thedailystar.net/backpage/news/fifth-amendment-case-moon-cinema-owner-gets-tk-100-crore-1841656