Bangladesh has time and again been failed by the legislature and the executive branches of subsequent governments, regardless of whether they came to power through free and fair election, ballot-manipulation, or bullet-mayhem. Time and again, Bangladesh has rest its hope on these two branches in its pursuit of democracy. The Judiciary in contrast remained relatively less talked about. Well, that was until the Supreme Court’s Fifth Amendment verdict was delivered. And this time, our political discourse is even risking ‘contempt of court’ debating the pros and cons of its consequences.
With that in mind, this article discusses some pertinent matters concerning the Judiciary, using the controversial judicial history of the United States, where the Court not only holds a liberal view on contempt of court, but also has a long history to offer lessons for others.
Watching the watchmen
Ever wondered why the Judiciary has the guardianship to preserve, protect and defend the Constitution — despite the fact that the Executive and the Legislature are elected representatives of the people?
Alexander Hamilton, whose writings are considered to be a primary source for interpretation of the US Constitution, has given the most eloquent answer to that question:
The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
What about people’s representatives? He argued:
The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.
Well, holders of the sword and holders of the purse did fail us before. But why is the Judiciary any different?
Indeed. Even the thought of being failed by the Judiciary was inconceivable to Hamilton.
But Bangladesh is not America. In Shesher Kobita, Rabindranath wrote:
The person with the chain binds the bird with it, by force. One without the chain binds with drug, illusion. The person with the chain binds, but does not hypnotize. The druggist binds, and hypnotizes too.
Taming constitutional dictatorship
To legalise illegitimate authoritarian rules, suspension and retrospective amendment of the Constitution has become all too typical.
Take a Turkish coup d’état for example.
Amid political uncertainty, through a coup d’état in 1980, General Evren proclaimed himself as the president. The military government then abandoned the Constitution, announced a series of laws, and introduced a new Constitution in 1982. An article was inserted into that Constitution prohibiting the Judiciary from prosecuting the military instigators of the coup. The Constitution was then ‘legalised’ through a referendum. After this so-called ‘restoration of democracy’, the military ruler got reappointed as the president of the country for the next seven years.
If the Executive takes the power by sword and then rigs the election to install a ‘supposedly legitimate’ puppet-Legislature; and using it, amends the Constitution at its own desire to become ‘Constitutionally legitimate’, then how do we prevent it?
To this end, the US Supreme Court introduced the Judicial Review of actions of the other two branches of the government. In the 1803 landmark case of Marbury v Madison, the Judiciary held that it has the right to review and question the validity of legislative laws and executive acts.
Did it work?
Living by the rule, dying by the rule
Fifty years after the inception of Judicial Review, the US Supreme Court gave a controversial verdict in the case of Dred Scott v Sandford. In 1856, it ruled that ‘a free negro [sic] of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States’. Such interpretation of the Constitution by the Judiciary fuelled the slavery-debate in the North and the South.
Denoting the Scott case, Abraham Lincoln during his first inaugural address in 1861 noted:
“…the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, …the people will have ceased to be their own rulers”.
But the Supreme Court in the case of Harris v the United States ruled that it is ‘unconstitutional’ government to punish individuals for such assaults and murders. The same year, the Supreme Court in the Civil Rights Cases also ruled that the Federal Congress did not have the authority to outlaw racial discrimination by individuals as only the State governments have that jurisdiction. The Court also ruled the Civil Rights Act of 1875 as unconstitutional.
As a result, white supremacists got away with their assaults and discriminations against the African Americans in the southern states, where such crimes were ignored by the State government.
Then in 1896, the Supreme Court in the case of Plessy v Ferguson ruled that ‘racial segregation’ between the blacks and the whites was permissible.
Finally, interpreting the same Constitution, in 1954 the Supreme Court in the case of Brown vs Board of Education declared racial segregation and discrimination in public schools unconstitutional.
Averting arbitrary decisions
To prevent arbitrary decisions, constitutions often specify irrevocable articles. For instance, Article 1 to 3 of the Turkish Constitution and Article 1 and 20 of the German Constitution are specifically marked unalterable.
Our Constitution does not specify any irrevocable article by clause, but articles such as 7(2) and 26(2) rule that the State shall not make any law inconsistent with some provisions. The French Constitution also has similar irrevocable provisions in its Article 89 to prevent monarchy.
An exceptional way is the Basic Structure doctrine pioneered by the Supreme Court of India. In the case of Kesavananda Bharati v State of Kerala, the Court held that certain features of the Constitution of India are beyond the limit of the powers of the Legislature and cannot be amended.
The judicial verdict in the case of Anwar Hussain v Bangladesh, also known as Bangladesh’s Eighth Amendment case, was based on this Basic Structure doctrine.
Ruling against the Eighth Amendment of the Bangladesh Constitution that intended to set up High Court benches outside Dhaka, Justice Shahabuddin Ahmed, held that: ‘constituent power’, in the sense of power to make a Constitution, belongs to the people alone; to vest the power to the parliament is a ‘derivative’ one; and that derivative constituent power will not automatically make the amendment immune from challenge.
In the dissenting opinion, Justice ATM Afzal rejected the doctrine and argued that ‘it is unthinkable the makers of the Constitution did not leave any option to the future generation but decided on all matters for all people’.
In the 3-to-1 majority judgement, the Court ruled that a number of features such as supremacy of the Constitution, democracy, and independence of the Judiciary are beyond any alteration or change by amendatory process.
In the Fifth Amendment case, the Court made similar argument re the Basic Principles of our Constitution.
According to the rulings of the High Court Division, following were the underlying principles of the Fifth Amendment verdict, in brief (page numbers in the parentheses refer to respective verdicts).
1. The Constitution and its supremacy cannot be suspended by any law, much less Martial Law; and since ‘there is no such law in Bangladesh as Martial Law’ (p-386)hence all martial law proclamations are illegal to begin with.
2. ‘The Parliament may enact any law but subject to the Constitution’ (p-336) but cannot validate martial law proclamations that contradicts with the Constitution. Hence, the Second Parliament’s approval of the Fifth Amendment Act is ultra vires (p-388), that is, beyond the Parliament’s Constitutional power.
3. Invalidation of the whole Fifth Amendment would mean Bangladesh will automatically return to the one-party political system introduced by the Fourth Amendment. But that will create a Constitutional vacuum in the country since most laws and amendments were made assuming the invalidation of the Fourth Amendment by the now-invalid Fifth Amendment. So by invoking the doctrine of State necessity, the Court ‘condoned’ some martial law acts (p-156-357) and the reversal to Fourth Amendment was averted.
4. The Court could only condone certain clauses that are past and closed transactions, and/or ‘could have been legally done at least by the proper authority’ (p-346). Then, following the Eighth Amendment case, the Court also held that ‘only those amendments which did not change the basic structure of the Constitution’ (p-363) could have been legally done. So the Court did not condone martial law acts that changed the fundamental principles of the Constitution (that is, socialism and secularism).
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process, a socialist society free from exploitation, a society in which the rule of law, fundamental human rights and freedoms, equality and justice, political, economic and social, will be secured for all citizens;
However the constitution our CJ took oath to protect ( when he was sworn in a High Court Judge, Appellate division judge and Chief Justice), which was developed in 1972, Amended 13 times by 1st, second, 3rd and 4th parliament was not the same constitution. Ruling party leadership as well as opposition leadership suggests this to be our constitution unless a new amendment passes parliament. This specific constitution has a preamble with different four basic principles which are read in the following way,
We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People’s Republic of Bangladesh;
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process to socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Question may arise can a justice, taking oath to protect a constitution, change it? If he had a problem with that constitution, why he would take oath to protect it?
The Appellate Division upheld the High Court Division verdict, but expunged some of its observations and reverted a few decisions such as the issue of Bangladeshi identity. This time, however, establishment of Supreme Judicial Council by martial law proclamation was also condoned for being a ‘more transparent procedure than that of the earlier ones’ and for ‘safeguarding independence of judiciary’ (p-177).
Amid all the media controversies re the verdict, it is perhaps pertinent to recall another part of Lincoln’s speech quoted earlier:
“while it is obviously possible that such decision [by Supreme Court] may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice”.
From Judicial Activism to Politicisation
There is no denying the opinion that the Judiciary shall not enter into politics. Judges around the world are also critical of Judicial Activism. But even Political Question doctrine fails to save judiciary from controversy when people are politically divided on supposedly non-political issues or when legal and criminal issues become subjective enough to constitute a political question.
Though the Judiciary cannot endorse any political party, the judicial leanings of the judges — conservatives or liberal — are well known. And that well known reality has its implications. Appointing judges who are more likely to rule in ruling Executive’s favour became a typical exercise. Over the past decades, appointments of Supreme Court judges have become contentious, intense and often politically hostile.
One might hypothesise that in the long run, even the Basic Structure doctrine might get overruled in Bangladesh by a different panel of judges appointed by a different government.
Hamilton believed that the holder of the Judgement should never possess the Sword or the Purse to protect its integrity. Well, things have changed.
The judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has so far raised little hue and cry until May 4th 2009 when the Attorney General surprisingly moved a petition for withdrawing the leave-to-appeal petition in such a case having grave constitutional implications and interpretations. As the present government has decided not to continue the appeal any more, the Appellate Division has allowed filing of petitions for leave to appeal by Khandker Delwar Hossain and other two interveners. This write-up is intended to explore some constitutional issues involved in the judgment of 5th Amendment case and the pitfalls in withdrawal of the appeal.
Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;
Hamilton’s concept of the Judiciary having ‘neither force nor will’ is obsolete in Bangladesh.
Here, the stakes are higher.
The seventh amendment ratified the proclamation of martial law and other regulations, orders and instructions by Ershad between March 24, 1982, and November 10, 1986. Ershad, the then chief of army staff, declared himself the chief martial law administrator and imposed martial law on March 24, 1982 and captured power from an elected government in 1982 (BNP government led by Justice Sattar).
The High Court observed that HM Ershad had made the constitution subordinate to the martial law, which is illegal and unconstitutional.
The constitution is the supreme law of the country. It cannot be made subordinate to any law, the court said.
The government would decide about the fate of HM Ershad, it added.
The HC observed the persons, who illegally took over the state power, should be suitably punished and the Parliament can enact relevant law in this regard.
The HC has recently started hearing on the petition after it on April 5 issued a rule upon the government to explain as to why the seventh amendment to the constitution should not be adjudged illegal.
The constitution (Eighth Amendment ) Act, 1988, was passed amending article 100 of the constitution by setting up permanent Benches of the High Court Division outside the capital city Dhaka and the Supreme Court gripped with that constitutional issue which were challenged by two writ petitions on the ground that High Court division of the Supreme Court with judicial power over the republic is a basic structure of the constitution and that cannot be altered or damaged and therefore the impugned amendment is void. A division Bench of the High Court Division summarily dismissed the said two writ petitions. Leave was granted by the Appellate Division. This appeal along with other two appeals of Anwar Hussain Chowdhury v Bangladesh is popularly known as the constitution (Eighth Amendment) case. 41 DLR (AD) 165.
The power of amendment of the Constitution of the Republic of Bangladesh under Article 142 is not an unlimited power and that power conflicts with the concept of supremacy of the constitution provided by Article 7 of the Constitution. Article 7 of the Constitution has put an implied limitation on the power of amendment and therefore Article 7 is basic and unalterable. The counter argument was independence of judiciary and separation of powers are basic features of the constitution but the impugned amendment has not affected either of the two. And the power of amendment under article 142 is a constituent power not any ordinary legislative power.
Then, through the Thirteenth Amendment, we made the Caretaker system of government permanent and reserved the Chief Advisor’s position for the last retired holder of the judgement (that is, the head of the Judiciary).
It had come up with the rule after hearing the writ petition filed by Siddique Ahmed, convicted of murder and sentenced to life imprisonment by a martial law court in Chittagong in 1986.
Siddique, in his petition, said martial law and the rules and orders under it are illegal in view of the basic framework of Bangladesh’s constitution.
He prayed for a direction upon the government to arrange retrial of the case in which he was convicted and sentenced.
On February 2, the Supreme Court dismissed two petitions contesting the High Court verdict that declared the constitution’s fifth amendment illegal.
The fifth amendment had ratified all changes made to the constitution and all the government activities between August 15, 1975, and April 9, 1979, giving legitimacy to the regimes of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Major General Ziaur Rahman.
In an immediate reaction over the HC verdict, Jatiya Party (JP) Presidium member Ziauddin Ahmed Bablu told The Daily Star quoting the party chairman HM Ershad that the party would examine the legal course of action in accordance with the constitution and law after getting the official copy of the verdict.
The politician also said senior members of the party along with Ershad discussed about the way out from the crisis at Ershad’s residence in the capital immediately after announcement of the verdict.
Apart from declaring the 5th Amendment illegal and ineffective, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between 15th August, 1975 and April 1979. The court held that usurpation of the state power through martial law proclamation, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional. The judgment as it is reported in BLT Special Issue 2006 contains 242 pages with 22 points in its operative part. The judgment is largely based on some doctrines under constitutional jurisprudence: doctrine of illegality or unconstitutionality, doctrine of basic structure, the power of judicial review under a written constitution (constitutional ultra vires) and principle of oath of office under the constitution. Apart from the scrutiny of limits of some these doctrines, there are some jurisdictional and constitutional continuation issues which the Appellate Division should examine in detail.
‘Past and closed transaction’ and ‘Condonation’:
His Lordship Mr. Justice A.B.M. Khairul Hoque held categorically in the judgment:
All acts and things done and actions and proceedings taken during the period from August 15, 1975 to April, 9, 1979 are condoned as past and closed transactions but such condonations are made not because those are legal but only in the interest of the Republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.
The preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condonation is allowed in respect of these provisions of the Constitution.
Besides, Article 95, as amended by the Second Proclamation Order No. IV of 1976 is declared valid and retained.
Various Ordinances passed during the period between August, 1975 and April, 1977 are condoned.
Thus it is clear that on question of condonation the court has adopted the method of pick and choose. While declaring the whole amendment illegal and then accepting part of it as legal; condoning all laws passed by way of ordinances and then retaining the provisions in Article 95 as amended by the 5th Amendment seem irrational and needs further scrutiny by the Appellate Division.
Disputed 4th Amendment and the 5th Amendment Case:
The High Court Bench was mindful of the undemocratic provisions of the disputed 4th
The original constitution did not use these religious words in the preamble of the constitution. These words, inter alia, were inserted by Proclamations (Amendment Order) Order, 1977 by late President Ziaur Rahman and in the very first edition of my book on Constitution, Constitutional Law and Politics this writer commented that these religious words were inserted with a political end. It was a constitutional tricks played by Ziaur Rahman especially to get quick support from a large section of people who are religious but illiterate and politically unconscious. The 5th Amendment judgment is completely silent about this meaning that if this judgment is upheld, Bismillahir Rahmainr Rahim will no longer be in the constitution although the law Minister is advocating that this would not be so.
The Constitution and its supremacy cannot be suspended by any law, much less Martial Law; and since ‘there is no such law in Bangladesh as Martial Law’ (p-386)hence all martial law proclamations are illegal to begin with. Then, through the Thirteenth Amendment, we made the Caretaker system of government permanent and reserved the Chief Advisor’s position for the last retired holder of the judgement (that is, the head of the Judiciary). The seventh amendment ratified the proclamation of martial law and other regulations, orders and instructions by Ershad between March 24, 1982, and November 10, 1986. Ershad, the then chief of army staff, declared himself the chief martial law administrator and imposed martial law on March 24, 1982 and captured power from an elected government in 1982 (BNP government led by Justice Sattar).
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