HC ruling mute about changing Constitution
M. Shahidul Islam
The much feared doom and gloom is almost over, and the hurriedly convening of a committee to amend the Constitution may prove as putting the cart before the horses. The parliamentary committee not only predated the release of the copy of the High Court (HC) ruling from which the rationality to amend the Constitution is supposed to be derived, the ruling itself seems to have rendered that necessity 'redundant'; its main preoccupation being with the Martial Law Regulation V11 of 1977, which got validated in conjunction with other post - August- 1975 proclamations and orders.
This has left the government and its committee adrift. Besides, as feared, the ruling is marred by poor juridical arguments, irreconcilable contradictions and conspicuous political biases. It also seems devoid of the contextual reality that had necessitated the coming into force of the Fifth Amendment itself. Upon reading the full text of the ruling, which got released on July 28, one finds it carrying no inkling of the necessity to amend the Constitution, and, its interpretation of the validity of the Fifth Amendment centring largely on overcoming a legal hurdle posed by a complicated civil litigation.
Constitutional relevance
The ruling's encompassing of constitutional relevance was narrated in PART XXXIV that stated, "The Petitioner No.1 is a Company and the Petitioner No.2 is its Managing Director. Apparently, they have no special interest in the Constitution of Bangladesh or its legal history. They are, however, very much interested in their own properties, namely, the premises at 11 Wiseghat and 12 Wiseghat. Initially both the properties were declared abandoned...., the petitioners successfully challenged the order declaring the said property as abandoned. The High Court Division in Writ Petition No. 67 of 1976 not only declared the impugned order illegal but also directed the respondents to hand over the possession of the same in favour of the petitioners within 60 (sixty) days. But the said Order of the High Court Division was not carried out on the plea of bar created by MLR VII of 1977. The petitioners unsuccessfully filed contempt petitions and ultimately those were withdrawn in 1994 (p-327). Since in the face of MLR VII of 1977, even the orders of the High Court Division of the Supreme Court could not be executed to the prejudice of the petitioners, they were aggrieved. ....In this manner, the petitioners were prejudiced and remained so by MLR VII of 1977 but they were unable to challenge it because MLR VII of 1977 was firstly, validated with all other Proclamations, MLRs and MLOs, by paragraph 3A to the Fourth Schedule of the Constitution, inserted by Proclamations (Amendment) Order, 1977 (Proclamations Order No.1 of 1977). Secondly, MLR VII of 1977 along with all Proclamations MLRs, MLOs, were again ratified, confirmed and validated by Paragraph 18 to the Fourth Schedule of the Constitution. This paragraph 18 was added by amendment of the Fourth Schedule by Section 2 of the Constitution (Fifth Amendment) Act, 1979 (Act No. 1 of 1979). This Act was published in the Bangladesh Gazette Extra-ordinary on April 06, 1979. Although this is no public interest litigation but in order to reach MLR VII of 1977, in the turn of the 21st Century, the petitioners in the instant Rule challenged the ratification and confirmation of MLR VII of 1977 and Proclamations (Amendment) Order, 1977 (Proclamation Order No. 1 of 1977) with regard to insertion of the aforesaid paragraph 3A to the Fourth Schedule of the Constitution by the aforementioned paragraph 18 of the Fourth Schedule to the Constitution, added by the Constitution (Fifth Amendment) Act, 1979 (Act No. 1 of 1979). (p-328, ruling)."
Poor rationalization
That notwithstanding, the legal forte of the ruling to have beaconed the necessity of a Constitutional amendment was lost in the charade of obfuscation and the discerned lack of resoluteness; it having condoned the acts emanating from the MLOs and the MLRs during the statutory period while concluding in a sweeping manner that the Fifth Amendment itself was 'illegal', as if the two were not the Siamese Twain they were crafted to be. The fundamental difference between a ruling and a verdict is that the latter is considered to have generated from an exhaustive finding based on evidence and probation, making it mandatory upon the parties to comply with and act upon, mostly in criminal matters. The lack of any such probative inferences has eluded this ruling the required authority to impose upon the legislation any binding onus to affect changes to the Constitution. And, due to the manner in which the ruling's scope was identified and the reasons elaborated-why a serious constitutional matter had to be dealt with in a secluded civil litigation-the necessity to amend the Constitution did not become a prerequisite to redressing the grievances of the aggrieved party, which the court intended. More so, even if one interprets the ruling as a decree of some sort, one finds it colliding head on with other laws; due to its disjointed conclusions, unjustified assertions and many unempirical postulations stampeding upon previous rulings made by courts of competent jurisdiction on the same subject matter.
Constitutional relevance
The ruling's encompassing of constitutional relevance was narrated in PART XXXIV that stated, "The Petitioner No.1 is a Company and the Petitioner No.2 is its Managing Director. Apparently, they have no special interest in the Constitution of Bangladesh or its legal history. They are, however, very much interested in their own properties, namely, the premises at 11 Wiseghat and 12 Wiseghat. Initially both the properties were declared abandoned...., the petitioners successfully challenged the order declaring the said property as abandoned. The High Court Division in Writ Petition No. 67 of 1976 not only declared the impugned order illegal but also directed the respondents to hand over the possession of the same in favour of the petitioners within 60 (sixty) days. But the said Order of the High Court Division was not carried out on the plea of bar created by MLR VII of 1977. The petitioners unsuccessfully filed contempt petitions and ultimately those were withdrawn in 1994 (p-327). Since in the face of MLR VII of 1977, even the orders of the High Court Division of the Supreme Court could not be executed to the prejudice of the petitioners, they were aggrieved. ....In this manner, the petitioners were prejudiced and remained so by MLR VII of 1977 but they were unable to challenge it because MLR VII of 1977 was firstly, validated with all other Proclamations, MLRs and MLOs, by paragraph 3A to the Fourth Schedule of the Constitution, inserted by Proclamations (Amendment) Order, 1977 (Proclamations Order No.1 of 1977). Secondly, MLR VII of 1977 along with all Proclamations MLRs, MLOs, were again ratified, confirmed and validated by Paragraph 18 to the Fourth Schedule of the Constitution. This paragraph 18 was added by amendment of the Fourth Schedule by Section 2 of the Constitution (Fifth Amendment) Act, 1979 (Act No. 1 of 1979). This Act was published in the Bangladesh Gazette Extra-ordinary on April 06, 1979. Although this is no public interest litigation but in order to reach MLR VII of 1977, in the turn of the 21st Century, the petitioners in the instant Rule challenged the ratification and confirmation of MLR VII of 1977 and Proclamations (Amendment) Order, 1977 (Proclamation Order No. 1 of 1977) with regard to insertion of the aforesaid paragraph 3A to the Fourth Schedule of the Constitution by the aforementioned paragraph 18 of the Fourth Schedule to the Constitution, added by the Constitution (Fifth Amendment) Act, 1979 (Act No. 1 of 1979). (p-328, ruling)."
Poor rationalization
That notwithstanding, the legal forte of the ruling to have beaconed the necessity of a Constitutional amendment was lost in the charade of obfuscation and the discerned lack of resoluteness; it having condoned the acts emanating from the MLOs and the MLRs during the statutory period while concluding in a sweeping manner that the Fifth Amendment itself was 'illegal', as if the two were not the Siamese Twain they were crafted to be. The fundamental difference between a ruling and a verdict is that the latter is considered to have generated from an exhaustive finding based on evidence and probation, making it mandatory upon the parties to comply with and act upon, mostly in criminal matters. The lack of any such probative inferences has eluded this ruling the required authority to impose upon the legislation any binding onus to affect changes to the Constitution. And, due to the manner in which the ruling's scope was identified and the reasons elaborated-why a serious constitutional matter had to be dealt with in a secluded civil litigation-the necessity to amend the Constitution did not become a prerequisite to redressing the grievances of the aggrieved party, which the court intended. More so, even if one interprets the ruling as a decree of some sort, one finds it colliding head on with other laws; due to its disjointed conclusions, unjustified assertions and many unempirical postulations stampeding upon previous rulings made by courts of competent jurisdiction on the same subject matter.
The main thrust of the ruling is its assertion that the Fifth Amendment to the Constitution is 'illegal'. That assertion is based on a rationale which stated: "From a plain reading of the meanings of the words 'amendment' and 'amended', given by a number of authorities (mentioned above), it is crystal clear that however wide meaning we give, the words 'ratification', 'confirmation' appearing in the sub-title of the Paragraph 18 to the Fourth Schedule of Constitution, would not come within the ambit of the words 'amendment' or 'amended' in Article 142. ..........This insertion of Paragraph 18 is anything but an amendment of the Constitution, rather, this paragraph was thrust into the Fourth Schedule in an effort to legalise what was the most illegal activities of the usurpers and dictators who ruled Bangladesh during the period from August 15, 1975 to April 9, 1979" (p-316). That hardly cuts the ice. An amendment is an amendment, call it by any name. This post-fact political phenomenon shall not be equated with the case of a criminal investigation needing dead corpse's exhumation. It involves our lives gone by, and can not be fully retrieved.
Besides, ignoring the backdrop under which the Fifth Amendment came into force, the ruling stated: "Thus an amendment corrects errors of commission or omission, modifies the system without fundamentally changing its nature - that is an amendment operates within the theoretical parameters of the existing Constitution. But a proposal that would attempt to transform a central aspect of the nature of the compact and create some other kind of system - that to take an extreme example, tried to change a constitutional democracy into a totalitarian state - would not be an amendment at all, but re-creation, a re-forming, not merely of the covenant but also of the people themselves. That deed would lie beyond the scope of the authority of any governmental body or set of bodies, for they are all creatures of the Constitution and the peoples' agreement."
Bias & contradictions
Based on such an analysis, what could have justified the rationality and the legality of the Third (enacting Special Powers Act of 1974) and the Fourth Amendments (imposing one-party rule) which snatched away the fundamental rights of the people and changed the Constitution structurally? The ruling also invoked precedents that contradict with what it espoused. It stated: "In disposing of this Rule, we kept in our mind what A.T.M. Afzal, J. (as his Lordship then was) aptly observed in Anwar Hossain Chowdhury's case 1989 BLD (Spl.)1 at para 491, page 181. In answering the ultimate question involved in these cases i.e. scope of the Parliament's power of amendment of the Constitution, the Court's only function is to examine dispassionately the terms of the Constitution and the law..... Neither politics, nor policy of the government nor personalities have any relevance for examining the power of the Parliament under the Constitution which has to be done purely upon an interpretation of the provisions of the Constitution with the help of legal tools."
Bias & contradictions
Based on such an analysis, what could have justified the rationality and the legality of the Third (enacting Special Powers Act of 1974) and the Fourth Amendments (imposing one-party rule) which snatched away the fundamental rights of the people and changed the Constitution structurally? The ruling also invoked precedents that contradict with what it espoused. It stated: "In disposing of this Rule, we kept in our mind what A.T.M. Afzal, J. (as his Lordship then was) aptly observed in Anwar Hossain Chowdhury's case 1989 BLD (Spl.)1 at para 491, page 181. In answering the ultimate question involved in these cases i.e. scope of the Parliament's power of amendment of the Constitution, the Court's only function is to examine dispassionately the terms of the Constitution and the law..... Neither politics, nor policy of the government nor personalities have any relevance for examining the power of the Parliament under the Constitution which has to be done purely upon an interpretation of the provisions of the Constitution with the help of legal tools."
That implies that the mandate of the judiciary is not to preoccupy with what the legislation has adopted into law, but to interpret and put it into the right perspective. The court seems to have laboured upon interpreting a number of provisions of statutes, orders, proclamations, regulations and ordinances, albeit in the most disjointed manner, but it ended up with little convincing and sound legal conclusions. Instead, it preferred hurling partisan invectives at the other party by stating, "The Constitution (Fifth Amendment) Act, 1979, was enacted by the Second Parliament. As an Act of Parliament, generally it is inviolable, unless the Amendment sought to destroy the basic structure of the Constitution itself. As such, it was necessary to examine the subject matters of the amendment. In order to understand and appreciate the real purpose, it was found necessary to lift the veil of enactment and examine the pith and substance of the amending Act; This amending Act, inserted Paragraph 18 to the Fourth Schedule of the Constitution. The said Paragraph 18 sought to ratify, confirm and validate all Martial Law Proclamations, Martial Law Regulations and Martial Law Orders and also all actions taken under those provisions in a sweeping and omnibus manner without specifying any particular provision or provisions and actions. We have examined some of those in order to find out the real face and the purpose of those Proclamations etc. But for our purpose, it was not necessary to examine all the Proclamations, MLRs and MLOs. Even if one of those is found to destroy the basic structure of the Constitution, the amendment would be illegal since it is inseparable" (p-330).
Why then the ruling separates the Proclamations and the Orders from the very acts they had given birth to and condones the latter? Besides, many other contradictions seemed to have invalidated this core assertion of the ruling too. In one breath, the ruling says it was not necessary to examine all the MLRs and MLOs, while stating clearly in another segment that, "We have already found that all the Proclamations, MLRs and MLOs were issued in total violation of the Constitution and all those provisions were grossly illegal. This was not, obviously, unknown to the rulers of the day. As such, in their predicament, in order to hide their acts of violation of the Constitution, they further disgraced the Constitution by inserting Paragraph 18 to the Fourth Schedule of the Constitution, and ratified, confirmed and validated all those Proclamation etc, incorporating in the said paragraph. This whole process of amendment was engineered in order to hide the illegalities committed by the dictators" (P-317).
Referendum needed
Despite such starkly contrasting, politically - biased observations, the ruling maintains: "But as a matter of fact, if the pertinent provisions are illegal, those shall remain so, no matter whether those are thrust into the Constitution or not. If the relevant provisions are legal and beneficial to the community, those need not be appended to the Constitution; such provisions remain valid on its own right, since those would be the expressions of the free will of the sovereign people." Did the judiciary leave to the legislation to infer what constituted free will of the people and what did not? Is that the reason why the PM is saying the proposed amendment will not change the words like 'In the name of Allah' which got inserted into the preamble to the Constitution?
Referendum needed
Despite such starkly contrasting, politically - biased observations, the ruling maintains: "But as a matter of fact, if the pertinent provisions are illegal, those shall remain so, no matter whether those are thrust into the Constitution or not. If the relevant provisions are legal and beneficial to the community, those need not be appended to the Constitution; such provisions remain valid on its own right, since those would be the expressions of the free will of the sovereign people." Did the judiciary leave to the legislation to infer what constituted free will of the people and what did not? Is that the reason why the PM is saying the proposed amendment will not change the words like 'In the name of Allah' which got inserted into the preamble to the Constitution?
Be that whatever, the court has uprooted the entire celestial body while its intent perhaps was to pluck a star, so said our founding Editor, late Enayetullah Khan, following the HC ruling's maiden promulgation in late 2005. The ruling also accused the legislation of craftiness in devising the Fifth Amendment and stated: "In this connection it should be noted that by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No. IV of 1978), clause (1A), clause (1B) and clause (1C) were added to Article 142 of the Constitution. Clause 1A provides that when any Bill is passed providing for amendment of the Preamble or any of the provisions of Article 8, 48, 56, 58, 80, 92A or Article 142 is presented to the President for assent, he would cause it to be referred to a referendum the question whether the said Bill should or should not be assented to. This addition of clause (1A) was very craftily made. In one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People's Republic of Bangladesh according to his own whims and caprices by his Orders which would have envied James I and Charles I in early 17th Century, but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions can not be changed even by the two-third majority members of the Parliament short of a referendum."
Doctrine of necessity
The current AL administration derives it authority from the quintessential 'doctrine of necessity', having won an election that was deferred for over 24 months in violation of the Constitutional stipulations. Yet, the most sloppy aspect of the ruling was its dealing of the 'doctrine of necessity' which is what stood at the centre of the declaration of Martial Law in August 1975, though it did not fail to take into cognizance the various brands of Martial Laws mentioned in the respondent's arguments, one of which referred to the (Martial) law that relates to and arises out of a situation in which the Civil power is unable to maintain law and order and the Military power is used to meet force and recreate conditions of peace and tranquillity in which the Civil power can re-assert its authority. "The Martial Law Regulations and Martial Law Orders passed under this type of Martial Law must be germane only to the restoration of peace and tranquillity and induced during the period of unrest," the ruling concurred.
Doctrine of necessity
The current AL administration derives it authority from the quintessential 'doctrine of necessity', having won an election that was deferred for over 24 months in violation of the Constitutional stipulations. Yet, the most sloppy aspect of the ruling was its dealing of the 'doctrine of necessity' which is what stood at the centre of the declaration of Martial Law in August 1975, though it did not fail to take into cognizance the various brands of Martial Laws mentioned in the respondent's arguments, one of which referred to the (Martial) law that relates to and arises out of a situation in which the Civil power is unable to maintain law and order and the Military power is used to meet force and recreate conditions of peace and tranquillity in which the Civil power can re-assert its authority. "The Martial Law Regulations and Martial Law Orders passed under this type of Martial Law must be germane only to the restoration of peace and tranquillity and induced during the period of unrest," the ruling concurred.
Precisely so was the case during the statutory period from August 1975 to April 1979, and the same argument derailed constitutional governance and the election in early 2007. The Constitution does have the provision to declare emergency, but it offers no mandate to anyone to defer elections indefinitely, unless the doctrine of necessity is used as the rationale to do so. If the doctrine of necessity can be justifiable in 2007, what was so wrong about invoking it in 1975 when the nation faced the most gruesome spectacle of becoming a failed state? And, what is the big fuss about the Fifth Amendment which simply strove to restore normalcy following the seemingly endless chaos and anarchy left by the preceding regime?
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