Law Alter Views
Coup d' etat, constitution and legal continuity
Imtiaz Omar and Zakir Hossain
The court challenge of the proclamation of martial law in Bangladesh in 1975 and subsequent actions taken during the asendency of it, and the final act of incorporating these actions into the Constitution is an attempt to throw a spanner in the political process and quite unjustifiably involve the judiciary to get it to rule on issues which have raw political ramifications. Since this being done, it is instructive to reflect on the constitutional doctrinal issues that surround these developments, and arrive at some conclusions on what the role of the Bangladesh Supreme Court under the Constitution should be. It is best to start with some preliminaries.
First, unlike developments in Pakistan in 1958 and 1969, when the Constitutions of 1956 and 1962 were abrogated, the Constitution of Bangladesh as adopted in 1972 was kept operative after the coup d' etat in 1975. Even after the 1982 proclamation of martial law, the Constitution was not abrogated, but suspended. Therefore, in terms of constitutional doctrine, it has been legal continuity despite the extra-constitutional interregnums. The Constitution of Bangladesh as it operates today, and hopefully as it will in future, is still the Constitution of 1972. The non-abrogation of the Constitution is an idea that the authorities in Pakistan have probably learnt from Bangladesh for, despite the proclamations of martial law in that country in 1977 and 1999, the Constitution of 1973 was not abrogated.
Secondly, the Parliament under the Constitution of Bangladesh has two kinds of powers -- the 'legislative' power to make laws within the scope of the powers granted by the Constitution, and the 'constituent' power to change or amend the Constitution. Unlike a simple majority requirement to pass a law, an amendment to the Constitution can only be adopted by a two-third absolute majority vote in Parliament. The 5th (1979) and the 7th (1986) were the consequence of revocation of 'states of martial law', 1975-1979, and 1982-1986. By these amendments to the Constitution, all martial law decrees during the suspension of the whole or parts of the Constitution were 'legalised'. The last two constitutional amendments, the 12th (1919) and 13th (1996) Amendments, by a duly elected Parliament, and under the established provisions of the Constitution, introduced some fundamental changes in the Constitution. The major changes were substitution of parliamentary democracy in place of the presidential form of government, initially introduced as a one-party presidential system by the 4th Amendment, the requirement of a referendum to change the form of government (including, for example, parliamentary to presidential), and the mechanism of a 'caretaker government', to organise elections and exercise ancillary functions in the period between an outgoing government and the installation of a new one.
Thirdly, the power of judicial review, under the Constitution of Bangladesh, by the Supreme Court is confined to examining the constitutionality of acts of the executive branch of government, and laws passed by Parliament that may be contrary to the scope of 'fundamental rights' guaranteed by the Constitution. The judicial review power also generally extends to ensure that the constitutional powers granted to the political branches of government are not exceeded. This power cannot, however, be extended to judicial review of constitutional amendments. As mentioned above, amending the Constitution is an exercise of 'constituent power', not 'legislative power' simpliciter. The obscuration of the nature of these two kinds of powers, and the occasional attempted effort by the Bangladesh Supreme Court to arrogate to itself the power of judicial review of a constitutional amendment, owes its origin to an ambiguous proposition of the Indian Supreme Court in a 1973 case (Keshavnanda Bharati). The premises of this proposition that has quite surprisingly become a cause celebre in some newer Commonwealth countries is borrowed from the sole dissenting judgment of Chief Justice Kennedy in a 1935 case (State v Lennon). Despite several opinions of the judges running for more than 700 pages, all that the 1973 Indian case stands for can be summarised in one sentence: Under the Indian Constitution, the Parliament has full powers to amend the Constitution, including the guaranteed individual rights, but such a change cannot alter the 'basic features' of the Constitution.
Each of the issues highlighted above is now examined. In 1975, martial law was declared in Bangladesh by a civilian figure who assumed the office of 'President' after a coup d' etat by a section of the armed forces. In the immediate post-coup period, the Parliament, predominantly comprised of MPs of the overthrown government, passed an 'indemnity ordinance' exonerating the perpetrators of the coup from any liability. In the ensuing years until the 5th Amendment in 1979, the Supreme Court repeatedly expressed its unwillingness to question the validity of the proclamation of martial law. It rather confined itself to examining the propriety of decrees made under the proclamation, occasionally holding action taken under such instruments and subordinate forums invalid. A good example is the decision in the case of Khondker Moshtaque Ahmed (1982) where the Appellate Division of the Supreme Court set aside the criminal conviction of the incumbent of the post-coup, short-lived presidency on grounds that the martial law authorities acted in bad faith.
This role of the Bangladesh Supreme Court should be characterised as pragmatic. It accepted the proclamation of martial law as a fait accompli. It neither gave a stamp of approval to the proclamation, nor in view of the redefined political power did it uphold any rule on its legality. Had it taken the course of the Court in Pakistan since 1958, the Bangladesh Supreme Court would forever be grappling in the quagmire of extraordinary powers and partisan politics. In the Dosso case (1958) in Pakistan, Chief Justice Munir of the Pakistan Supreme Court, gave an unqualified stamp of approval to the abrogation of the 1956 Constitution of Pakistan, and the proclamation of martial law in that country by Ayub Khan, by taking recourse to quite dubious legal theory. Since then, the Court in Pakistan has been periodically dragged to rule upon the legality of extraordinary regimes of martial law and each time the Court succumbed to these imposed or assumed responsibility. In the Asma Jilani case (1972), Chief Justice Hamoodur Rahman took it upon himself and the Pakistan Supreme Court to retroactively brand illegal the abrogation of the 1962 Constitution and imposition of martial law by Yahya Khan. This decision entailed the overruling the Dosso case (1958).
In the aftermath of the military takeovers in Pakistan by Ziaul Huq and Pervez Musharraf in 1977 and 1999 respectively, the Pakistan Supreme Court was again drawn in to rule on the legality of the regimes. In Nusrat Bhutto (1977) and in the 1999 Martial Law case, the Court gave stamps of approval to the military usurpation of political power. In going about doing so, the Court relied upon variants of a legal theory that has long fallen into disuse in mature constitutional systems, the doctrine of necessity, a technique of interpretation that condones or legalizes otherwise 'unlawful' acts on grounds of extra-ordinary circumstances. Paradoxically, in sanctioning what the military authorities could 'justifiable' do under the proclamations that was judicially upheld, both decisions used some of the reasoning in the Asma Jilani case which condoned certain acts of the military regime which it otherwise held illegal.
It cannot be seriously denied that the decision in Dosso was an overtly partisan decision, and it reflected the chauvinistic views of a section of the political-military elite in Pakistan to which Chief Justice Munir was exposed to. But, the mischief the decision caused left a legacy which the Supreme Court of Pakistan has been unable to reverse. It was open to the judiciary to retract from a position of ruling on these kinds of political questions. But it chose not to. So the rather dismal saga of judicial participation in political affairs continues in Pakistan.
Continued ....
Dear readers, Next part will be published on September 24, 2005. - Law Desk
Dr Imtiaz Omar is a Constitutional Law academic at the University of New England's Law School, Australia and Zakir Hossain is Chairman, Department of Law, University of Chittagong.
