Fifth Constitution (Fifth Amendment) Act 1979
The High Court Division declared the Act void on 29 August 2005, and the Appellate Division dismissed the leave petitions with modifications and observations on 2 February 2010. The Fifteenth Amendment of 2011 omitted paragraph 18 of the Fourth Schedule.
From 15 August 1975 the country was under martial law. Successive Proclamations and Proclamation Orders changed the Preamble, the fundamental principles, the judiciary provisions and Article 142, without any vote in Parliament.
A general election was held on 18 February 1979. The Second Parliament met in April 1979, and one of its first measures was a Bill to give constitutional cover to everything done under martial law.
On 6 April 1979 Parliament passed the Constitution (Fifth Amendment) Act 1979, Act I of 1979. It added paragraph 18 to the Fourth Schedule, covering the period from 15 August 1975 to 9 April 1979.
Paragraph 18 declared all constitutional changes made by Proclamation in that period validly made and beyond challenge in any court. They included Bismillah above the Preamble, new Articles 8, 9 and 10, the Supreme Judicial Council and the Article 142 referendum.
On 29 August 2005 the High Court Division declared the Act void in a case about Moon Cinema in Dhaka. On 2 February 2010 the Appellate Division dismissed the leave petitions with modifications and observations, upholding the ruling with some condonations.
The Fifteenth Amendment of 2011 omitted paragraph 18, together with paragraphs 19 to 23, from the Fourth Schedule, and restored provisions of the 1972 text, including secularism, while keeping some later changes.
In plain English
Constitution (Fifth Amendment) Act 1979
The Fifth Amendment, passed on 6 April 1979, added paragraph 18 to the Fourth Schedule. It declared that all amendments, additions, modifications, substitutions and omissions made to the Constitution by martial law Proclamations between 15 August 1975 and 9 April 1979 had been validly made and could not be questioned in any court. Those changes included the words Bismillah-ar-Rahman-ar-Rahim above the Preamble, replacing secularism with absolute trust and faith in Almighty Allah, the Supreme Judicial Council and a referendum requirement in Article 142.
In 2005 and 2010 the Supreme Court held the Act void, subject to condonations.
Background
After President Sheikh Mujibur Rahman was assassinated on 15 August 1975, the country was governed under martial law, with Khondaker Mostaq Ahmad, Abu Sadat Mohammad Sayem and Ziaur Rahman successively in office. Many constitutional provisions were changed by Proclamation rather than by Parliament. A parliamentary election was held on 18 February 1979, and the newly elected Second Parliament, in which the Bangladesh Nationalist Party held a majority, passed the Fifth Amendment in its first session. Martial law was then withdrawn.
What changed
What the Fifth Amendment changed, article by article
Fourth Schedule
Fifth AmendmentParagraph 18: all amendments, additions, modifications, substitutions and omissions made in the Constitution between 15 August 1975 and 9 April 1979 by any Proclamation or Proclamation Order had been validly made and shall not be called in question in or before any court, tribunal or authority on any ground.
This was the Act's only direct change to the text. Paragraphs 18 to 23 were omitted by the Fifteenth Amendment 2011 (section 49(c)).
Preamble
Fifth AmendmentThe words Bismillah-ar-Rahman-ar-Rahim (In the name of Allah, the Beneficent, the Merciful) placed above the Preamble, with further changes to the Preamble.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment.
Article 6
Fifth AmendmentCitizens known as Bangalees.
Citizens of Bangladesh to be known as Bangladeshis.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment.
Article 8
Fifth AmendmentFundamental principles of nationalism, socialism, democracy and secularism.
Secularism replaced by absolute trust and faith in the Almighty Allah, with a new clause (1A) making it the basis of all actions.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment.
Article 9
Fifth AmendmentBengali nationalism.
A new Article 9 on the promotion of local government institutions.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment. As reported.
Article 10
Fifth AmendmentA new Article 10 on the participation of women in national life.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment. As reported.
Article 12
Fifth AmendmentSecularism and freedom of religion.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment.
Article 25
Fifth AmendmentA clause on consolidating, preserving and strengthening fraternal relations among Muslim countries based on Islamic solidarity.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment. As reported.
Article 38
Fifth AmendmentThe proviso barring communal and religion-based political associations.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment.
Article 96
Fifth AmendmentRemoval of Supreme Court judges through a Supreme Judicial Council.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment.
Article 142
Fifth AmendmentA referendum requirement added for Bills amending certain provisions.
Made by martial law Proclamation between 1975 and 1979 and ratified, not enacted, by the Fifth Amendment. As reported.
What happened next
What happened to the Fifth Amendment next
The Act was challenged in a writ about the Moon Cinema hall in Dhaka, which had been taken under a Martial Law Regulation of 1977. On 29 August 2005 the High Court Division held the Fifth Amendment illegal and void ab initio. The Appellate Division stayed that ruling, and the stay was lifted on 3 January 2010 after the government withdrew its appeal. On 2 February 2010 the Appellate Division dismissed the remaining leave petitions with modifications and observations.
It condoned some changes but not those to the Preamble and Articles 6, 8, 9, 10, 12, 25, 38 and 142, as reported. The Fifteenth Amendment of 2011 then revised the text.
Timeline
- Martial law begins
- General election to the Second Parliament
- Fifth Amendment passed by Parliament
- High Court Division declares it void
- Appellate Division dismisses the leave petitions
- Fifteenth Amendment omits paragraph 18
Landmark cases
How the courts have read the Fifth Amendment
High Court Division · 2005
Bangladesh Italian Marble Works Ltd v Bangladesh
2006 BLT (Special) (HCD) 1
Justices A.B.M. Khairul Haque and A.T.M. Fazle Kabir declared the Fifth Amendment Act illegal and void ab initio, together with the martial law Proclamations it ratified.
Appellate Division · 2010
Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd
62 DLR (AD) 298
On 2 February 2010 the leave petitions were dismissed with modifications and observations, upholding the High Court Division's judgment with some condonations.
Questions
Fifth Amendment: frequently asked questions
What did the Fifth Amendment actually change?
Its only direct change was paragraph 18 of the Fourth Schedule. That paragraph ratified all constitutional changes made by martial law Proclamations between 15 August 1975 and 9 April 1979 and barred courts from questioning them. Those Proclamations had changed the Preamble and several Articles.
Why was the Fifth Amendment declared void?
The High Court Division held in 2005 that the martial law regimes and their Proclamations were without lawful authority, so the Act ratifying them was illegal and void ab initio. The Appellate Division upheld that ruling in 2010, with modifications, observations and some condonations.
Did the Fifth Amendment judgment restore the 1972 Constitution?
Only in part. Some changes, such as those that did not alter the basic structure, were condoned. The text itself was revised by the Fifteenth Amendment of 2011, which restored secularism and other 1972 provisions but kept some later changes.
Sources
- bdlaws: Constitution of Bangladesh, Schedules (PDF)
- Banglapedia: Constitutional Amendments
- The Daily Star: 50 Years of Bangladesh Constitution in a nutshell
- The Daily Star Law and Our Rights: Law week, February 2010 (Appellate Division ruling)
- The Daily Star Law and Our Rights: review of the Fifth Amendment judgment (February 2009)
- The Daily Star: Fifth amendment was a historical necessity, Moudud tells court (21 January 2010)
- The Financial Express: SC lifts stay on 5th Amendment ruling (4 January 2010)
This guide explains the Constitution for general understanding. It is not legal advice. Constitutional reform proposals under discussion in 2026 are described as proposals until enacted.
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