A three-judge High Court bench led by Justice Naima Haider on Monday held a hearing, before rejecting the plea, over a rule issued on the matter years ago.
A former Supreme Court judge, who had heard the petition almost five years ago, said the ruling was not based on the “merit” of the petition.
“It was on maintainability, and not on merit,” retired justice AHM Shamsuddin Choudhury said of the latest court decision.
Qawmi madrasa-based group Hifazat-e Islam has been threatening to bring Bangladesh to its knees if the High Court repealed Islam as the state religion while the Jamaat-e-Islami called a nationwide shutdown for Monday.
Military dictator HM Ershad pushed the Constitution’s Eighth Amendment through parliament, which passed the bill on Jun 5, 1988.
It paved the way for Article 2A to be inserted into the Constitution, which made Islam the state religion.
A petition was filed the same year challenging the legality of amendment made to the Constitution of Bangladesh, born in 1971 on the ideals of nationalism, socialism, democracy and secularism.
The petitioners were: former chief justice Kamal Uddin Hossain, Poet Sufia Kamal, National Professor Kabir Chowdhury, Prof Khan Sarwar Murshid, Prof Mosharraf Hossain, retired Maj Gen CR Dutta, Prof Serajul Islam Choudhury, writer Badaruddin Umar, journalist and writer Faiz Ahmed, Borhan Uddin Khan Jahangir and Prof Anisuzzaman.
Ten of them were already dead. Of the five still alive, Umar has already distanced himself from the petition saying the circumstances had changed.
The other four – Dutta, Jahangir, Serajul Islam Chowdhury and Anisuzzaman – have not made a comment.
Twenty-three years after filing the original petition, in June 2011, the petitioners filed a supplementary plea.
The matter was then heard by the bench of justices AHM Shamsuddin Choudhury and Gobinda Chandra Tagore on Jun 8 that year, which issued a rule on the matter.
On Monday, the larger High Court bench held a hearing over the rule before scrapping the plea.
The other two judges at the latest hearing were justices Quazi Reza-Ul Hoque and Md Ashraful Kamal.
The two minutes
“The old case is now here,” Additional Attorney General Murad Reza said when the hearing began around 2pm. “The writ petition was filed in 1988. The rule was issued after a supplementary plea in 2011.
“We need time for the hearing.”
Former justice TH Khan and senior lawyer ABM Nurul Islam, who were present in the courtroom, stood up. They requested that they be included as defendants.
But the court said it would decide on their plea after hearing from lawyer Subrata Chowdhury representing the petitioners.
“We wanted you to find out if there is locus standi (standing) for filing a writ petition on behalf of ‘Shairachar O Shampradayikota Pratirod Committee,’ the court asked Chowdhury.
The lawyer said, besides the committee against dictatorship and communalism, each petitioner had filed the plea individually.
“But we find that the writ petition has been filed on behalf of the committee,” the court said.
“We’ll elaborate during the hearing,” said Chowdhury, in reply.
“The committee does not have any locus standi to file a petition. Writ rejected, rule discharged.”