Appellate Division’s final verdict on 5th Amendment case || Power Shifted from Parliament to the Court

Appellate Division’s final verdict on 5th Amendment case || Power Shifted from Parliament to the Court

(the writer was a 4th year law student of Dhaka University)

 

 

It’s present Bangladesh, where almost every important or non-important matter is deciding by the Courts. All forms of power whether social, political, official, cultural, traditional, historical even religious are now under the authority of Court. Though it’s a parliamentary democratic state, the power and authority is shifted from elected politicians to unelected judges without any political or democratic challenge.

Recently, two judgments of the Supreme Court have threatened the constitutional, political and social order of the country with having some legal arguments and directions over extra-constitutional takeover. One is the Appellate Division’s final verdict on 5th Amendment case on 27th July and latest one is the 7th Amendment case, which is declared illegal and unconstitutional by a High Court Division Bench on 26th August 2010.

From Cinema Hall to Court: -Constitution:

Bangladesh Italian Marble Works Limited vs. Government of Bangladesh case is the 5th Amendment case.  Proceedings start with a Cinema Hall and ends with the country’s most significant political debate. In year 2000, the owner of the Moon Cinema Hall filed a writ petition under Article 102 of the Constitution (WRIT PETITION NO. 6016 OF 2000) 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 at 11, Wiseghat, Dhaka to their original owners. In that writ petition, the petitioners challenged the constitutionality of the 5th Amendment Act by which various proclamations of the Martial Law were condoned by Parliament in April 6, 1979. By a Judgment and Order dated 29th August 2005, a division bench of the High Court Division constituted by Mr. Justice A.B.M. Khairul Haque And Mr. Justice A.T.M. Fazle Kabir  declared the 5th  Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.

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 Government’s appeal was withdrawn and the stay granted has been vacated. Realizing 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 5th Amendment void. These two applications have come up in the list of the Supreme Court on 18th January 2010 for hearing. At last, on 27th July the Appellate Division disclosed its final verdict with some modifications.

 

Major Changes:

Some major changes had been brought by the 5th Amendment to Constitution from original 1972 Constitution and subsequent changes by the 4th Amendment. Let us see first the major changes by 5th Amendment;

 

1972 Constitution  After 5th Amendment
  1. First Paragraph of the Preamble: We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March 1971 and, through a

historic struggle for national liberation, established the independent, sovereign People’s Republic of Bangladesh;

  1. First Paragraph of the Preamble: 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;
  2. Second Paragraph of the
Preamble: Pledging that the high ideals of nationalism, socialism, democracy and secularism which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice theirlives in, the national liberation struggle, shall be the fundamental principles of the constitution;
  1. Second Paragraph of the Preamble:

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 dedicated themselves to, and our brave martyrs to sacrifice their lives in, the war for national independence, shall be the fundamental principles of the Constitution;

  1. Article-6: Citizenship of Bangladesh shall be determined and regulated by

law; citizens of Bangladesh shall be known as Bangalees.

  1. Article-6: (1) The citizenship of Bangladesh shall be determined and regulated by law.

(2) The citizens of Bangladesh shall be known as Bangladeshis.

  1. Article-8:

(1) The principles of nationalism, socialism, democracy and secularism, together with the principles derived from them as set out in this Part, shall

constitute the fundamental principles of state policy.

(2) The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh and shall form the basis of the work of the State and of its citizens,

but shall not be judicially enforceable.

  1. Article-8:

(1) The principles of absolute trust and faith in the almighty Allah,nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of state policy.

(1A)Absolute trust and faith in the Almighty Allah shall be the basis of all actions.]

(2) The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a

guide to the interpretation of the Constitute and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.

  1. Article-12:

The principle of secularism shall be realized by the examination of- (a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; any discrimination against, or persecution of, persons practicing a particular religion.

  1. Article-12 was deleted
  2. Article-142:
Notwithstanding anything contianedin this Constitution – (a) any provision thereof may amended by way of  addition, alteration, substitution or repeal by Act of Parliament: Provided that- (i) no Bill for such amendment shall be allowed to proceed unless thelongtitle there expressly states that it will amend a provision of the  Constitution; (ii) no such Bill shall be

presented to the President for assentunless it is passed by the votes of not less than two-thirds of the total number of members of Parliament;

(b) When a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days

after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period. (2) Nothing in article 26 shall apply to any amendment made under this article.

  1. Article-142:

Notwithstanding anything contained in the Constitution- (a) any provision thereof may be amended by way of  addition, alteration, substitution or reprel by Act of Parliament: Provided that- (i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the  Constitution; (ii) no such Bill shall be

presented to the President for assent

unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament.

(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill,and if he fails so to do he

shall be deemed to have assented to it on the expiration of that period. (IA) Notwithstanding anything contained in clause (I), when a Bill, passed as foresaid, which provides for the amendment of the Preamble or any provisions of articles 8,48 [or] 56 or this article, is presented to the President for

assent, the President, shall, within the period of seven days after the Bill is presented to him, cause to be referred to

a referendum the question whether the Bill should or should not be assented to.

 

After the final verdict of 5th Amendment case, it results with some restorations from the original Constitution. Mentionable are:

  • Islam shall remain the state religion as per the 8th amendment, which is not covered by the judgment.
  • The apex court vehemently denounced military rule and suspension of the constitution by martial law proclamation. Verdict says, “We are putting on record our total disapproval of martial law and suspension of the constitution or any part thereof in any form,” It also says, “Preamble and the relevant provisions of the Constitution in respect of secularism, nationalism and socialism, as existed on August 15, 1975, will revive.”
  • Article 12 to original Constitution, which prohibited religion-based politics and communalism in all forms. The SC judgment reinstates that article.
  • About nationalism, the top court said since it is a political issue, “parliament is to take decision in this regard”.

Was there any way without 5th Amendment?

The First Martial Law (15 August, 1975-7 April, 1979) in Bangladesh was headed by three different persons of different background, the first one is a politician (Khandaker Moshtaque Ahmed), the second a Chief Justice (Justice A. M. Sayem) and third an Army General (Major General Ziaur Rahman). The 4th Amendment was the pillar for 5th Amendment. The 4th Amendment came into force on the 25th January, 1975. A new part VIA was inserted in the Constitution, providing for the formation of a National Party to the exclusion of all other parties. Bangladesh Krishak Sramik Awami League (BAKSAL) was formed in pursuance of the Constitutional provisions. All newspapers and periodicals, except a designated few lost their declaration. Besides this many other undemocratic provisions were inserted which destroyed the basic structure of the Constitution and Democracy. Formal Chief Justice Mustafa Kamal in his book ‘Bangladesh Constitution: Trends and Issues’ wrote “It is a great irony of the history that while the elected representative of the people in a democratic dispensation banned all political parties except one, it was a Judge and later a General, who restored the multi-party system. It can be said that the 5th Amendment was an indispensable one which got it pillar by the 4th Amendment.”

Non-discussed legal Points:

This is for the second time, the Court declared the Amendment to the Constitution passed by the Parliament as void. First one is the 8th Amendment case (Anowar Hossain Chowdhury Vs. Bangladesh ,1988). The Court declared its judgment on the basis of some principles like-Doctrine of unconstitutionality, doctrine of basic structure of the state, principle of judicial review, principle of taking oath of the Justices under Constitution. There are different of opinions among the Judges of this sub-continent regarding those doctrines and principles. Even in the judgment of 5th Amendment case, there are many contradicting and paradoxical opinions; some of those are:

  • In many points of judgment, the learned judges compared the 5th Amendment to the constitution with the original Constitution of Bangladesh. But the 5th Amendment was not made directly from the original constitution. A series of Amendments have been made before it. The basement of the 5th Amendment was surely the 4th Amendment. By the 4th Amendment, the structure of the Constitution, state, politics; all were destroyed. But in the anywhere of judgment, it is absent.
  • The case is a writ petition which is recognized by the Article 102 and 44 of the Constitution. By the 4th Amendment, both Articles were deleted. In 1976, the then President Justice Sayeem restored Article 102 and 44. If it would not restore; the present case can never be filed. So without declaring the 4th amendment as void; the declaration of 5th Amendment as void will create constitutional crisis and hegemony. And all the writ petitions filed in the last 31 years and all judgments and orders made become automatically unconstitutional. Those crucial questions were not discussed in the judgment.
  • Though the Court mentioned about undemocratic features of the 4th Amendment; but it’s was not in the hands of Court to declare 4th Amendment void. Because of three reasons: there wasn’t any suit regarding the 4th Amendment, any matter of the 4th Amendment was not an issue before the Court, and the third one is, the 4th Amendment was passed by a sovereign Parliament by the huge support of elected representative of the people. First two reasons are satisfactory. But it was held in the 8th Amendment case that the basic feature of the constitution cannot be altered even by the Parliament; which was made by the 4th Amendment.
  • Article 95, as amended by the Second Proclamation Order No. IV of 1976, is declared valid and retained; which is paradoxical to the judgment. Because it is subject matter of 5th Amendment.

Debate over Basic Structure:

Basic structure concept to the constitution established in our country by the majority judgment of 8th Amendment case. That means the constitution has some basic features that cannot be altered even by the Parliament. But in a democratic country, is it practicable having such restrictions over the people’s elected representatives? Is it supported by the democratic norms? The answer can be found in minority judgment by Justice ATM Afzal in 8th Amendment case. Justice Afzal in his dissenting opinion has been clear and unequivocal in rejecting the title theory of basic structures on two grounds. ‘The first is that it is inconceivable that the makers of the Constitution had decided on all matters for all people of all ages without leaving any option to the future generation.  Secondly, if it is right that they wanted the so-called ‘basic features’ to be permanent features of the Constitution there was nothing to prevent them from making such a provision in the Constitution itself. On the other hand, it has been noticed that the makers placed no limitation whatsoever in the matter of amendment of the Constitution except providing for some special procedure in Article 142. Further after the  incorporation of sub-article (1A) providing for a more difficult procedure of referendum in case of amendment of the provisions mentioned therein, the contention as to further ‘essential features’ becomes all the more difficult to accept. The Constitution, as now stands, by the said sub-art (lA) amply manifests that except the provisions mentioned therein, no other provision is so basic that it will need a referendum for its amendment to be incorporated in the Constitution.’

Justice Afzal made the view, ‘In our context the doctrine of basic features has indigenous and special difficulties for acceptance. The question naturally will arise “basic features” in relation to which period? What were or could be  considered to be ‘basic’ to our Constitution on its promulgation on 16th December 1972, a reference to the various amendments made up to the (8th ) Amendment Act will show that they have ceased to be basic any more. The ‘basic features’ have been varied in such abandon and with such quick  succession that the credibility in the viability of the theory of fundamentally is bound to erode.’

 

 

Parliament or Court: who possess the Ultimate Amending power?

 

In an Indian Supreme Court case known as Kesavananda  case  Justice Roy observed that

Who is to decide and how to decide when the Constitution-makers themselves in their

wisdom chose not to distinguish, what are to be considered as transcendental, in   limitation to the power of amendment given to the Parliament? This view is agreed by Justice Afzal. “To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essential features are? On what touchstone are the essential features to be measured? Is there any yardstick by which it can be gauged? How much is essential and how much is not essential? How can the essential features or the core of the essential features be determined?

It’s the Parliament, which reflects the peoples opinion. And the Constitution is the solemn expression of the will of the people. This will only can be implemented by the Parliament through the means of elected representative; and if required by Referendum among people.

 

Constitution is not an Ordinary Law:

In another Indian Supreme Court case named Shankari Prasad case Justice Patanjali Sastri, observed that “Although ‘law’ must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and Constitutional law, which is made in exercise of constituent power”. Therefore, a power to amend the Constitution is different from the power to amend ordinary’ law.

The question may arise, where the distinction? It lies in the criterion of validity. The validity of an ordinary law can be questioned.  When it is questioned it must be justified by reference to a higher law. In the case of the Constitution the validity is inherent and lies within itself. The validity of constitutional law cannot be justified by reference to another higher law. Every legal rule or norm owes its validity to some higher legal rule or norm. The Constitution is the basic norm. The Constitution generates its own validity. It is valid because it exists. The Constitution is binding because it is the Constitution. Any other law is binding only if and in so far as it is in conformity with Constitution. The validity of the Constitution lies in the social fact of its acceptance by the community.

ATM Afzal holds that there is a limitation inherent in the word “amend” or “amendment” which may be said to be a built-in limitation. Whatever meaning those words may bear, this, in my opinion, cannot be disputed that they can never mean, to’ destroy’, “abrogate” and destruction” or “abrogation”. It is significant that under Art 142 any provision of the Constitution may be repealed but there is no conferment of power to repeal the Constitution itself as are to be found in the then Constitution of Pakistan of 1956 and the Constitution of Ceylon (vide articles 216 and 82(5) respectively). Therefore, in exercise of the power under Art. 142 the Constitution cannot be destroyed or abrogated. The destruction of the constitution will be the result if any of its “structural pillars”, that is, the three organs of the Government’, Executive, Legislature and Judicial, is destroyed. The result will also be the same if any of these organs is emasculated and castrated in such a manner as would make the Constitution unworkable. For example, if the Supreme Court or a Superior Court by any name is retained but the power of judicial review as under Art. 102 is taken away, the result will be that the form will be there but the ‘soul’ of the Judiciary will be gone and the Constitution will be rendered unworkable in as much as the balance which is struck in the scheme of the Constitution cannot be maintained. There can be no objection to the exercise of amending power to fulfill the needs of time and of the generation. But the power cannot be so construed as to turn the Constitution which is the scripture of hope of a living society and for its unfolding future, into a scripture of doom.

But the very Article 142 also needs to be going back in its original form of 1972 by the order of the highest Court. Think, where we are in? Is it really a democratic state ruled by the elected representatives of the people? If yes, where their role and functions are? Our elected politicians are losing their power, and doing so with hardly any objection.

 

 

 

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