No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Bill of Rights, which consists of the first ten amendments to the U.S. Constitution, enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the Constitution, ratified in 1791, represents five distinct liberties the that Framers attempted to safeguard from majoritarian impulses: (1) the right to be indicted by an impartial Grand Jury before being tried for a federal criminal offense,(2) the right to be free from multiple prosecutions or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by Due Process of Law, and (5) the right to receive just compensation when the government takes private property for public use.
The Framers of the Fifth Amendment intended that its provisions would apply only to the actions of the federal government. However, after the Fourteenth Amendment was ratified, most of the Fifth Amendment’s protections were made applicable to the states. Under the Incorporation Doctrine, most of the liberties set forth in the Bill of Rights were made applicable to state governments through the U.S. Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As a result, all states must provide protection against Double Jeopardy, Self-Incrimination, deprivation of due process, and government taking of private property without just compensation. The Grand Jury Clause of the Fifth Amendment has not been made applicable to state governments.
Double Jeopardy Clause
The Double Jeopardy Clause of the Fifth Amendment prohibits state and federal governments from reprosecuting for the same offense a defendant who has already been acquitted or convicted. It also prevents state and federal governments from imposing more than one punishment for the same offense.
For more than a century, courts have wrestled with the question of what constitutes an acquittal such that a person has already been placed in jeopardy for a particular offense. However, all courts agree that the Double Jeopardy Clause applies only to legal proceedings brought by state and federal governments in criminal court. It does not apply to legal proceedings instituted by purely private individuals in civil court.
The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are designed to punish individuals for wrongdoing against the public order. Civil actions are designed to compensate victims with money damages for injuries suffered at the hands of another. An individual who has been acquitted in criminal court of murder can, without violating the Double Jeopardy Clause, be required in civil court to pay money damages to the family of a victim. Thus, the successive criminal and civil trials of O. J. Simpson, regarding the deaths of Nicole Brown Simpson and Ronald Goldman, did not constitute double jeopardy.
The Fifth Amendment’s prohibition against double jeopardy is rooted in Anglo-Saxon Jurisprudence. Yet, in England, the Crown sometimes ignored the right against double jeopardy. In certain important cases where an acquittal undermined royal interests, the defendant was tried again in a different manner or by a different court. The protection against double jeopardy was also extremely narrow under. Although Congress and the state ratifying conventions said very little about the Fifth Amendment’s Double Jeopardy Clause, the U.S. Supreme Court has identified several concerns that the Framers were trying to address when they drafted it: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments not authorized by the legislature.
The Fifth Amendment’s right against self-incrimination permits an individual to refuse to disclose information that could be used against him or her in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. The Self-Incrimination Clause applies to any state or federal legal proceeding, whether it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand.
The privilege is also asserted with some frequency during the pretrial phase of legal proceedings. In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked by law enforcement agents, prosecutors, and other government officials who are seeking to determine the persons responsible for a particular crime. During the pretrial phase of civil cases, parties may assert the right against self-incrimination when potentially damaging questions are posed in depositions and interrogatories.
The right against self-incrimination largely took hold in English law with the seventeenth-century trial of John Lilburne. Lilburne was a Puritan agitator who opposed British attempts to impose Anglican religious uniformity across England. In 1637, Lilburne was prosecuted for attempting to smuggle several thousand Puritan pamphlets into England. Before the Star Chamber (an English court with jurisdiction to extinguish nonconformity in the realm), Lilburne refused to take an oath requiring him to answer truthfully any question asked of him. He said that he could see that the court was trying to ensnare him, and he claimed that the law of God and the law of the land supported his right against self-accusation. Lilburne was
A court should only overrule its case precedents if there is, in Rehnquist’s words, “special justification.” The Court in Dickerson concluded there were no special justifications.
Despite this decision the controversy over Miranda has not abated. In 2002 the Supreme Court took up the matter again when it reviewed Martinez v. Chavez, 270 F.3d 852 (9th Cir. 2001). The Court must decide whether the Fifth Amendment conveys a constitutional right to be free of coercive interrogation, or merely a right not to have forced confessions used against them at trial.
Due Process Clause
The Fifth Amendment’s Due Process Clause has two aspects: procedural and substantive. Procedural due process is concerned with the process by which legal proceedings are conducted. It requires that all persons who will be materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they will have an adequate opportunity to prepare. It also requires that legal proceedings be conducted in a fair manner by an impartial judge who will allow the interested parties to present fully their complaints, grievances, and defenses. The Due Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage through final appeal, and proceedings that produce Arbitrary or capricious results will be overturned as unconstitutional.
Substantive Due Process is concerned with the content of particular laws that are applied during legal proceedings. Before World War II, the U.S. Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers to determine the wages their employees would be paid and the number of hours they could work. Since World War II, the Court has relied on substantive due process to protect privacy and autonomy interests of adults, including the right to use contraception and the right to have an Abortion.
The line separating procedure from substance is not always clear. For example, procedural due process guarantees criminal defendants the right to a fair trial, and substantive due process specifies that 12 jurors must return a unanimous guilty verdict before the death penalty can be imposed. The concepts of substantive and procedural due process trace back to English law. The Magna Charta provided, “No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way … except by the lawful judgment of his peers, or by the law of the land” (art. 39). According to eminent English jurist Sir Edward Coke, law of the land and due process of law were interchangeable terms that possessed both procedural and substantive meaning.
Eminent Domain Clause
When the government takes Personal Property for public use, the law calls it a taking and protects it under the eminent domain clause of the Fifth Amendment. The Eminent Domain Clause permits the government to appropriate private property, both real estate and personal belongings, for a public purpose so long as the owner receives just compensation, which is normally equated with the fair market value of the property. The Fifth Amendment attempts to strike a balance between the needs of the public and the property rights of the owner.
The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna Charta read,”no free man shall be … disseised [deprived] of his freehold … except by the lawful judgment of his peers, or by the law of the land.” No compensation was awarded to owners whose property was taken by the government for public use. Instead, English law merely required that the government obtain ownership of private property through existing legal channels, such as parliamentary legislation. This principle was followed in England for several centuries, and was later adopted by the American colonies.
Uncompensated takings of private property by colonial governments generally involved unimproved land (i.e., land that had not been built on). Colonial governments often appropriated private land to build roads and bridges in order to develop America’s frontiers. During the American Revolution, the power of eminent domain was used to seize the land of colonists who were loyal to Great Britain, and to obtain various goods for military consumption. Compensation was rarely given to individual owners who were deprived of their property by colonial governments because making personal sacrifices for the common good, including forfeiting personal property, was considered an essential duty of every colonist.
Not everyone in the colonies believed that personal property interests should always be sacrificed for the greater good of society. Many colonists expressed distress over legislatures that were abusing their power of eminent domain. New York, for example, regularly failed to recognize title to real estate in its colony that was held by residents of Vermont. Other colonies also discriminated in favor of their own residents, and against persons whose patriotism was questionable during the Revolution. It was in this context that the Eminent Domain Clause of the Fifth Amendment was drafted.
During the twentieth century, the U.S. Supreme Court has enlarged the protection against uncompensated takings of private property by state and federal governments. The Eminent Domain Clause has been interpreted to protect not only owners whose property is physically taken by the government, but also owners whose property value is diminished as a result of government activity. Thus, compensable takings under the Fifth Amendment result from Zoning ordinances that deny property owners an economically viable use of their land (Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 ), environmental regulations that require the government to occupy an owner’s land in order to monitor groundwater wells (Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991], land-use regulations that curtail mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322), and government-owned airports that lower property values in adjacent neighborhoods (United States v. Causby, 328 U.S. 256, 66S. Ct. 1062, 90 L. Ed. 1206 ).
Grand Jury Clause
A grand jury is a group of citizens who are summoned to criminal court by the sheriff to consider accusations and complaints leveled against persons who are suspected of engaging in criminal conduct. Grand juries do not determine guilt or innocence. Instead, they determine whether Probable Cause exists to believe that the accused has committed a crime, and they return an indictment (i.e., a formal charge against the accused) if they do find probable cause. In common law, a grand jury consisted of not fewer than 12, and not more than 23, men. Today, grand juries impaneled before a federal district court must consist of not fewer than 16, and not more than 23, men and women.
Potential jurors are usually drawn from lists of qualified residents. Persons who are below the age of majority, who have been convicted of certain crimes, who or are biased toward the accused are ineligible to serve as grand jurors.
The grand jury originated in England during the reign of henry ii (1154–89). In 1166, a statute called the Assize of Clarendon was enacted. The assize provided that no person could be prosecuted unless four men from each township and 12 men from each hundred appeared before the county court to accuse the individual of a specific crime. This compulsory process, called a presenting jury, foreshadowed the grand jury as an accusatory body that identified individuals for prosecution but made no finding as to guilt or innocence.
1. In the year 2000, the owners of a cinema hall called Moon Cinema Hall filed a writ petition under Article 102 of the Constitution claiming that the declaration of Moon Cinema Hall as an abandoned property was unlawful and sought a direction upon the government to hand over the physical possession of the premises known as Moon Cinema Hall in Dhaka to
their original owners. In that writ petition, the petitioners challenged the constitutionality of the Fifth Amendment Act by which various proclamations of the Martial Law were condoned by Parliament in April 1979.
By a Judgment and Order dated 29th August 2005, the High Court declared the Fifth Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.
2 Islamic Character of the Constitution
In April 1979, the Parliament, by two-thirds majority passed the Fifth Amendment Act to the Constitution. It brought many changes: restored fundamental rights, multiparty democracy and among others, gave Bangladesh Constitution an Islamic character by deleting secularism and socialism from the Constitution. To give the Constitution an Islamic character, the Preamble of the Constitution was changed in the following manner:
Pledging that the high ideals of absolute trust and faith in the Almighty Allah shall be the fndamental principle of the Constitution.
By operation of the original Article 38, no citizen had the right to form or take part in the activities of any organisation which has been formed on the basis of religion with a view to pursuing a political purpose. The High Court, by declaring the Fifth Amendment unlawful, has revived the old Article 38. For clear and better understanding, we are quoting below the original Article 38 and the amended one (amended by the Fifth Amendment):
Original Article 38
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order:
Provided that no person shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose.
Amended Article 38
Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of public order or public health.
It may be mentioned that the Islami character to the Constitution was given in 1976 by the Second Proclamation (6th Amendment Order, 1976), which was later ratified by Parliament in 1979.
3. Court Procedures
On 29th August 2005, the High Court declared the Fifth Amendment unconstitutional. On that day, a Judge in Chamber of the Supreme Court stayed the operation of the judgment of the High Court upon an appeal filed by the Government of the day. The new Government headed by Awami League came to power in January 2009 and on an application made by the new Government on 3rd January 2010, the Governments appeal was withdrawn and the stay granted has been vacated.
Realising that the new Government would withdraw its appeal, earlier on two applications were filed: one by the Secretary General of BNP, and another by three advocates of the Supreme Court of Bangladesh, which sought to challenge the judgment passed by the High Court declaring the Fifth Amendment void. These two applications will come up in the list of the Supreme Court on 18th January 2010 for hearing. If these two applications are rejected on the 18th of January or anytime thereafter, then various provisions of the 1972 Constitution will be revived and Bangladesh Constitution will lose its Islamic character.
In that event, no further amendment to the Constitution would be necessary to give effect to the judgment of the High Court. Parliament need not to pass any further legislation. The implementation would be automatic. The High Court has also done away with the provision of referendum to change certain provisions of the Constitution. Therefore, no referendum will be necessary either.
Effect of Reverting Back to the 1972 Constitution
4. The concept of secularism, being contrary to the history of the region and its people, references to secularism in the Constitution were removed and in its place, Absolute trust and faith in Almighty Allah were inserted. As such, in the 38 years since the framing of the Constitution, the citizens of the country have expressed their absolute trust and faith in Almighty Allah for over 34 years. This position was changed by the High Court judgment.
Moreover, the present Court judgment has also taken away the fundamental right of citizens to form associations for a religious purpose. Citizens of Bangladesh have enjoyed such a fundamental right for 34 years since 1976. Although originally under Article 38 of the Constitution it was a fundamental right of all citizens to form associations, there was no fundamental right to form associations for religious purpose. However, in 1976, amendments were introduced in Article 38 of the Constitution and the fundamental right to form associations was extended to associations formed for religious purposes.
Now no citizen will have the right to form or be a member of a union or association based on religion. Although the Constitution does not prohibit the formation of such association, however, by virtue of section 20(2) of the Special Powers Act, 1974, the Government has the power to dissolve all or any religious political party.
On 4th January 2010, the Minister for Law, Justice and Parliamentary Affairs has expressed the Governments intention to dissolve all associations based on religion. Later on, the Prime Minister also expressed similar opinion. If, on the strength of the Courts decision, the Government decides to dissolve religious political parties, Bangladesh Jamaat-e-Islami, together with a dozen other small religious parties can also be dissolved. This might create a tension in the society. Jamaat-e-Islami, and other Islamic political parties, have been operating under the framework of the Constitution. Their objective is to establish, only through democratic process, a just society based on Islamic principles. When the doors of change through democratic process will be closed, this will strengthen the hands of the extremists who have been functioning outside the democratic process and accusing the Jamaat-e-Islami in particular of compromising the principles of Islam by functioning under the democratic process.
5 Interference in International Relations
By declaring the Fifth Amendment unlawful, the High Court has also interfered with the relationship of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25(2) of the Constitution provided as follows:
The State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.
For the last 33 years, this was the Constitutional basis for the Government of Bangladesh upon which its relations with the Muslim countries were established. The Fifth Amendment Case has deleted this provision. This may indirectly affect the relationship of Bangladesh (which is the home of almost 10% of the entire Muslim population of the world, with the rest of the Islamic world).
6 Change in Citizenship Finally, an anomaly which was present in the original Constitution of 1972 has been re-introduced. Under Article 6 of the unamended Constitution, the citizens of the Bangladesh were known as Bangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The Bangalees are one such ethnic group. As such the term Bangalee as used in the Constitution had the undesired effect of prima facie excluding other ethnic groups from Bangladeshi citizenship. The Constitution (Fifth Amendment) Act, 1979 having described/defined citizens of Bangladesh as Bangladeshis and not as Bangalees does not exclude other ethnic groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division.
(Writer: Senior Lawyer, Politician)
Consequences of an act appear at the aftermath of the commission of that act. In the legal realm, it is the existing and applicable law, not the consequences, which determine the legality or illegality of that act. Someone may be extremely hungry and may die as a consequence. Would his/her hunger and its consequences legitimize him/her stealing food? We know too well that a justified end does not justify any prohibited means. All contents of the Fifth Amendment were ordained, promulgated, and maintained under martial law during the period when the constitution remained in force. These authorities could arguably have abrogated the constitution and justified their positions under the Kelsenian doctrine of effectiveness and validity. Instead, they kept the constitution in force, treated it with utmost Parliament may enact an adaptation legislation to validate any laws and acts of those martial law regimes currently in force with a view to avoid any legal vacuum and non-continuity in governmental authorities. Precedents of such adoption exist in the law-making history of Bangladesh. Upon independence, Bangladesh issued the Adaptation of Existing Laws Order No. 48 of 1972, adopting certain laws and acts (of Pakistan) that were in existence and applicable in then East Pakistan prior to independence (such as the 1951 Citizenship Act) in order to fill up the gap created by the secession of Bangladesh from Pakistan. Parliament can choose and pick all acceptable elements of the Fifth Amendment and put a stamp of validity, even retrospectively if necessary. Parliament can also justify its action under the principle of necessity in the same way it endorsed overstay of the immediately past caretaker government and the Law Minister justified it as a matter of necessity. There are legal ways to overcome any potential vacuum in continuity. There is nothing in law or the constitution that prevents parliament from resorting to adaptation if the AD rejects the leave-to-appeal petition.
(Dr. Rafiqul Islam is Professor of Law and Director of the Law PhD Program, Macquarie niversity, Sydney, Australia).
The Courts judgment has created a sea of uncertainty in Bangladesh politics. Moon Cinema Hall could have been handed over back to its original owners by the High Court without knocking down the Fifth Amendment to the Constitution. By closing the doors of Constitutional politics for Islamic political parties, Bangladesh may become more unstable, more volatile and consequently more unpredictable.