Martial Law and dilemma of the Judges
Two judgements of our Supreme Court have declared the Fifth and Seventh Amendments unconstitutional. The First judgement was delivered by their Lordships of the Appellate Division sitting in full court presided over by the Chief Justice Mr. Justice Mohammad· Fazlul Karim declared the Fifth Amendment being violative of the Constitution so the takeover of the government was also illegal. The declaration against the Seventh Amendment to the Constitution came within weeks of the said judgement. A Division Bench of the High Court Division comprising their Lordships Mr. Justice A.H.M. Shamsuddin Chowdhury and Mr. Justice Sheikh Mohammad Zakir Hossain pronounced the judgement. Their Lordships in both judgements supported appropriate punishment for those responsible for constitutional violations.
Implications of these two judgments are undoubtedly far reaching. The judgements are widely debated expressing concerns and explaining the complications. Some politician found such judgements as deterant against military take over. Martial Law is unconstitutional is not unknown. But to declaring such changes by judicial pronouncements illegal and suggesting perpetrators to be punished despite subsequent ratification by the elected parliament has raised tough questions within and outside the government. If after a constitutional deviation ratification by the parliament is no protection then what?
Marital law is a negation of law, but successful martial law is a new order. No helpful purpose is served by making return to constitutionalism and the rule of law more difficult.
An outstanding former Chief Justice of our country made an insightful analysis of the dilemma judges face in an extra-constitutional take-over. We reproduce below excerpts from the Kamini Dutta Memorial Law Lectures delivered by Mr. Justice Mustafa Kamal at Dhaka University in 1994. It should be clear that the analysis of Mr. Justice Mustafa Kamal has no direct bearing on the recent judgements of the Supreme Court.
There are occasions when either the established constitutional machinery breaks down or an extra-constitutional force takes over the reins of administration, posing a dilemma for the Judges. Nearly all Constitutions require the Judges to take an oath to "preserve, protect and defend the Constitution and the laws" (see Article 148 and the Third Schedule of our Constitution). But when the Constitution is either abrogated or suspended and made subservient to the will of an extra-constitutional force, the Judges have to make a choice. An Argentinian Judge ( Oyhanarte, J..) has aptly described the dilemma of Judges:-
'The Supreme Court cannot modify the course of history. It lacks the power necessary to do this. When it is faced with the overthrow of constitutional authorities and the installation of a Government of force by what have come to be called 'revolutionary' means, the judges of the court can do three things:-
(I) resign, thus transferring the responsibility of the decision to others;
(2) simply accept the fact:
(3) try to save those institutional values which can still be saved"
(Quoted from Snow, Judges and Generals: The Role of the Argentine Supreme Court during Periods of Military Government (1975), p. 617).
In R Vs. Ndhlovu, [1968] 4 S.A.L.R. 515. Sir Hugh Beadle, C.J. expressed the dilemma this way :-
"The problem of whether a judge should stay or go is a matter personal choice……..The first duty of judges then, as I see it, is. 'whatever the political battle', to 'keep out of the main' area of dispute' and to 'carry on their peaceful task of protecting the fabric of society and maintaining law and order.' provided, of course, their judicial independence is not tampered with .. The judge is simply forced into a position of accepting the facts and the laws as they are, whether he likes them or not. He has, as I have said before, been overtaken by events."
Resignation of Judges in revolutionary situations has not been uncommon, but except for the ripple that it causes in the body politic neither the Judges by resignation en masse or in ones or twos have been able to deflect the revolutionary regime from following the course of action it chose to pursue nor have the people at large carried the mantle from the Judges to overthrow the extra-constitutional force. On the other hand when Judges resigned in protest against an unconstitutional takeover or when Judges were removed because of their obstruction to the wishes of the new authority, their successors on the Bench merely conformed to the wishes of the new regime and often they were also of so low a calibre that justice was no longer administered properly. On the other side it may perhaps be rightly argued that the continuance in office of the Judges gives the new regime a semblance of legitimacy.
In the recent Constitution 8th Amendment case, (1989) BLD (Spl) I, M.H. Rahman, J. offers his own choice in the following words :-
"The Court's attention has repeatedly been drawn to the oath the Chief Justice or a Judge of the Supreme Court takes under Article 148 of the Constitution on his appointment, Mr. Asrarul Hossain has pointed out the difference between the 1anguage of the oath the' Judges of the Indian Supreme Court take "to uphold the Constitution", and that of the oath the Judges of our Supreme Court take "to preserve, protect and defend of the constitution. The import of the single word 'uphold' is no less significant or onerous than that of the three words 'preserve, protect and defend'. In either case the burden is the same, And the Court carries the burden without holding the swords of the community held by the executive or the purse of the nation commanded hy the legislature. The Court could do so because all the authorities of the Republic act, as enjoined by the Constitution under art. 112 in aid of the Court for securing obedience to its judgement and orders. When the constitution is suspended or made subject to a non-law the the Court is deprived of the aid of the relevant authorities of the Republic. When such an abnormal situation occurs a Judge has got two alternatives: either he would resign or he would hold on to his post. One who has not lost faith in the rallying power of law may prefer a temporary deprivation of freedom to desertion. It is hardly necessary to point out that the Court will have no worthwhile power without the Constitution. The future of the Constitution lies in the commitment of the citizens who are obliged under art. 21 of the Constitution to observe the Constitution."(para 488)'
Expectation from the Judges and the real position of Judges are highlighted in the monograph on Revolution in the Legal Systems of Third World States by F. Reyntjens (University of Antwerp) and L. Wolf-Phillips (London School of Economics) in the following words :-
"When the judiciary is asked to 'stand up' against usurper it is too often forgotten that Judges may not have the means to do so. Often, but not always, the judicial branch is the only one left in tact in its composition (not generally in its powers) after a revolutionary take-over. Why should the Courts be able to resist the unconstitutional action if the deposed Executive. the dissolved Parliament, (a part of) the Army and the Policc, the Trade Unions . . . . . . cannot'? Thc Courts can never really be the "last bastion" against illegality because in terms of power to enforce obedience (physical if need be) they constitute the weakest link. To a large extent, therefore, De Smith is right, when arguing that, in general, legal analyses of unconstitutional action are fundamenta1ly pollitical Judgements dressed in a legalistic garb."
Generally the Judges have approached the powers of the usurper in revolutionary siituations in two broad ways, first, by applying the Kelsen doctrine of "revolutionary legality" and, secondly, by applying the "doctrine of State necessity".
As early as in 1925 Hans Kelsen in his "General Theory of Law and State (1949)" presented the legal effects of a revolution in a rational and systematic manner. To him a revolution means a successful revolution. To be successful the old order ceases and the new order begins to be efficacious, "because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. (p.118)
The first application of Kelsen's doctrine was made in the Pakistan case of the 'State vs. Dosso (PLD 1958 (SC) 533). Munir, C.J. held that the new legal order after a revolution should be judged by "reference to its own success" and the overthrown legal order by "the efficacy of the change". He said :-
"Where a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of' the Constitution, then such a change is a revolution and its legal effect is not only the destruction of the Constitution but also the validity of the national legal order irrespective of' how or by whom such a change is brought about."
This interpretation of Kelsen's pure theory of law was followed in Uganda vs. Commissioner of Prisons, ex-parte Matovu (Uganda 1966-7) and was referred to approvingly in the Appeal Court and Privy Council stages of Madzimbamuto vs. Lardner-Burke (Rhodesia, 1966-8). It was not followed in E.K. Sallah vs. the Attorney General (Ghana, 1970) and roundly over-turned in Asma Jilani vs. The Government of the Punjab (PLD 1972 SC 139), the last one saying, "The principle laid down in Dosso's case is wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or even otherwise."
The other approach made by the Judges to meet revolutionary situations is by application of the "doctrine of state necessity". When an unconstitutional action is taken by the incumbent authority and the legal order is only partly disregarded, the legal ruler himself has taken something like a revolutionary step not covered by the express words of the Constitution or even in conflict with it. This unconstitutional behaviour is taken to be necessary for the survival of the State. It is called a departure from the Constitution and it is sought to be justified 'in the interest of averting an impending disaster and preventing the State and society from dissolution. The "doctrine of state necessity" was followed in Special Reference No.1 of 1955 by the Governor General (PLD 1955 FC 435), Republic vs. Mustafa Ibrahim (Cyprus 1964) and Begum Nusrat Bhutto vs. The Chief of Army Staff and the Federation of Pakistan (PLD 1977 SC 657). The upshot of this doctrine is that "in order to bridge the gap between the law and the facts of political life", and to avoid the possibility "that a State and the people should be allowed to perish for the sake of its Constitution" and to accommodate an action which was "undoubtedly an extra-constitutional step, but obviously dictated by the highest consideration of State's necessity and the welfare of the people", the doctrine of state necessity is to be read into a written Constitution and the constitutional deviations are to be upheld to preserve the State itself.
Implications of these two judgments are undoubtedly far reaching. The judgements are widely debated expressing concerns and explaining the complications. Some politician found such judgements as deterant against military take over. Martial Law is unconstitutional is not unknown. But to declaring such changes by judicial pronouncements illegal and suggesting perpetrators to be punished despite subsequent ratification by the elected parliament has raised tough questions within and outside the government. If after a constitutional deviation ratification by the parliament is no protection then what?
Marital law is a negation of law, but successful martial law is a new order. No helpful purpose is served by making return to constitutionalism and the rule of law more difficult.
An outstanding former Chief Justice of our country made an insightful analysis of the dilemma judges face in an extra-constitutional take-over. We reproduce below excerpts from the Kamini Dutta Memorial Law Lectures delivered by Mr. Justice Mustafa Kamal at Dhaka University in 1994. It should be clear that the analysis of Mr. Justice Mustafa Kamal has no direct bearing on the recent judgements of the Supreme Court.
There are occasions when either the established constitutional machinery breaks down or an extra-constitutional force takes over the reins of administration, posing a dilemma for the Judges. Nearly all Constitutions require the Judges to take an oath to "preserve, protect and defend the Constitution and the laws" (see Article 148 and the Third Schedule of our Constitution). But when the Constitution is either abrogated or suspended and made subservient to the will of an extra-constitutional force, the Judges have to make a choice. An Argentinian Judge ( Oyhanarte, J..) has aptly described the dilemma of Judges:-
'The Supreme Court cannot modify the course of history. It lacks the power necessary to do this. When it is faced with the overthrow of constitutional authorities and the installation of a Government of force by what have come to be called 'revolutionary' means, the judges of the court can do three things:-
(I) resign, thus transferring the responsibility of the decision to others;
(2) simply accept the fact:
(3) try to save those institutional values which can still be saved"
(Quoted from Snow, Judges and Generals: The Role of the Argentine Supreme Court during Periods of Military Government (1975), p. 617).
In R Vs. Ndhlovu, [1968] 4 S.A.L.R. 515. Sir Hugh Beadle, C.J. expressed the dilemma this way :-
"The problem of whether a judge should stay or go is a matter personal choice……..The first duty of judges then, as I see it, is. 'whatever the political battle', to 'keep out of the main' area of dispute' and to 'carry on their peaceful task of protecting the fabric of society and maintaining law and order.' provided, of course, their judicial independence is not tampered with .. The judge is simply forced into a position of accepting the facts and the laws as they are, whether he likes them or not. He has, as I have said before, been overtaken by events."
Resignation of Judges in revolutionary situations has not been uncommon, but except for the ripple that it causes in the body politic neither the Judges by resignation en masse or in ones or twos have been able to deflect the revolutionary regime from following the course of action it chose to pursue nor have the people at large carried the mantle from the Judges to overthrow the extra-constitutional force. On the other hand when Judges resigned in protest against an unconstitutional takeover or when Judges were removed because of their obstruction to the wishes of the new authority, their successors on the Bench merely conformed to the wishes of the new regime and often they were also of so low a calibre that justice was no longer administered properly. On the other side it may perhaps be rightly argued that the continuance in office of the Judges gives the new regime a semblance of legitimacy.
In the recent Constitution 8th Amendment case, (1989) BLD (Spl) I, M.H. Rahman, J. offers his own choice in the following words :-
"The Court's attention has repeatedly been drawn to the oath the Chief Justice or a Judge of the Supreme Court takes under Article 148 of the Constitution on his appointment, Mr. Asrarul Hossain has pointed out the difference between the 1anguage of the oath the' Judges of the Indian Supreme Court take "to uphold the Constitution", and that of the oath the Judges of our Supreme Court take "to preserve, protect and defend of the constitution. The import of the single word 'uphold' is no less significant or onerous than that of the three words 'preserve, protect and defend'. In either case the burden is the same, And the Court carries the burden without holding the swords of the community held by the executive or the purse of the nation commanded hy the legislature. The Court could do so because all the authorities of the Republic act, as enjoined by the Constitution under art. 112 in aid of the Court for securing obedience to its judgement and orders. When the constitution is suspended or made subject to a non-law the the Court is deprived of the aid of the relevant authorities of the Republic. When such an abnormal situation occurs a Judge has got two alternatives: either he would resign or he would hold on to his post. One who has not lost faith in the rallying power of law may prefer a temporary deprivation of freedom to desertion. It is hardly necessary to point out that the Court will have no worthwhile power without the Constitution. The future of the Constitution lies in the commitment of the citizens who are obliged under art. 21 of the Constitution to observe the Constitution."(para 488)'
Expectation from the Judges and the real position of Judges are highlighted in the monograph on Revolution in the Legal Systems of Third World States by F. Reyntjens (University of Antwerp) and L. Wolf-Phillips (London School of Economics) in the following words :-
"When the judiciary is asked to 'stand up' against usurper it is too often forgotten that Judges may not have the means to do so. Often, but not always, the judicial branch is the only one left in tact in its composition (not generally in its powers) after a revolutionary take-over. Why should the Courts be able to resist the unconstitutional action if the deposed Executive. the dissolved Parliament, (a part of) the Army and the Policc, the Trade Unions . . . . . . cannot'? Thc Courts can never really be the "last bastion" against illegality because in terms of power to enforce obedience (physical if need be) they constitute the weakest link. To a large extent, therefore, De Smith is right, when arguing that, in general, legal analyses of unconstitutional action are fundamenta1ly pollitical Judgements dressed in a legalistic garb."
Generally the Judges have approached the powers of the usurper in revolutionary siituations in two broad ways, first, by applying the Kelsen doctrine of "revolutionary legality" and, secondly, by applying the "doctrine of State necessity".
As early as in 1925 Hans Kelsen in his "General Theory of Law and State (1949)" presented the legal effects of a revolution in a rational and systematic manner. To him a revolution means a successful revolution. To be successful the old order ceases and the new order begins to be efficacious, "because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. (p.118)
The first application of Kelsen's doctrine was made in the Pakistan case of the 'State vs. Dosso (PLD 1958 (SC) 533). Munir, C.J. held that the new legal order after a revolution should be judged by "reference to its own success" and the overthrown legal order by "the efficacy of the change". He said :-
"Where a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of' the Constitution, then such a change is a revolution and its legal effect is not only the destruction of the Constitution but also the validity of the national legal order irrespective of' how or by whom such a change is brought about."
This interpretation of Kelsen's pure theory of law was followed in Uganda vs. Commissioner of Prisons, ex-parte Matovu (Uganda 1966-7) and was referred to approvingly in the Appeal Court and Privy Council stages of Madzimbamuto vs. Lardner-Burke (Rhodesia, 1966-8). It was not followed in E.K. Sallah vs. the Attorney General (Ghana, 1970) and roundly over-turned in Asma Jilani vs. The Government of the Punjab (PLD 1972 SC 139), the last one saying, "The principle laid down in Dosso's case is wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or even otherwise."
The other approach made by the Judges to meet revolutionary situations is by application of the "doctrine of state necessity". When an unconstitutional action is taken by the incumbent authority and the legal order is only partly disregarded, the legal ruler himself has taken something like a revolutionary step not covered by the express words of the Constitution or even in conflict with it. This unconstitutional behaviour is taken to be necessary for the survival of the State. It is called a departure from the Constitution and it is sought to be justified 'in the interest of averting an impending disaster and preventing the State and society from dissolution. The "doctrine of state necessity" was followed in Special Reference No.1 of 1955 by the Governor General (PLD 1955 FC 435), Republic vs. Mustafa Ibrahim (Cyprus 1964) and Begum Nusrat Bhutto vs. The Chief of Army Staff and the Federation of Pakistan (PLD 1977 SC 657). The upshot of this doctrine is that "in order to bridge the gap between the law and the facts of political life", and to avoid the possibility "that a State and the people should be allowed to perish for the sake of its Constitution" and to accommodate an action which was "undoubtedly an extra-constitutional step, but obviously dictated by the highest consideration of State's necessity and the welfare of the people", the doctrine of state necessity is to be read into a written Constitution and the constitutional deviations are to be upheld to preserve the State itself.
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