Law Alter Views
Coup d' etat, constitution and legal continuity
Imtiaz Omar and Zakir Hossain
Concluding part of the two part story
The Bangladesh Supreme Court has so far avoided the adventurous path of the Pakistan Supreme Court. In neither of the two proclamations of martial law in 1975 and 1982 did the judiciary in Bangladesh sanction prospective powers to the martial law regimes. It is now being canvassed that all actions taken by the martial law regime in the period between 1975 and 1979 that were passed as the 5th Amendment to the Bangladesh Constitution be declared invalid. This argument obviously rests on the ground that the martial law proclamation of 1975 be retrospectively declared invalid. Such a hypothetical argument can probably find some support in the Pakistan Supreme Court decision in the Asma Jilani case. In that case, although the Pakistan Supreme Court retrospectively invalidated the 1969 proclamation of martial law, practically all actions affecting citizens and the community by the martial law authorities were condoned or legalised.
Since the 5th Amendment, there have been 8 (other) subsequent Amendments to the Bangladesh Constitution. Like the 5th Amendment, the 7th Amendment also ratified, through the parliamentary process, the 1982 proclamation of martial law and all decrees made under it till 1986. The 11th Amendment (1991) also ratified retrospectively actions of the 'caretaker' government. The 12th Amendment (1991) transformed the system of government from the one-party presidential form initiated by the civilian regime in power through the passage of the 4th Amendment. Since the 12th Amendment, the constitutional system in Bangladesh is based on parliamentary democracy. Assuming, but not admitting, that the 5th Amendment is found 'unconstitutional', there will be domino effect in the constitutional and political process since then, and all other succeeding Amendments will be invalid.
In the domino effect, the 4th Amendment will be reinstated, with the consequential effect of the one-party presidential system, and the power of the President to 'hire and fire' Supreme court judges at his discretion. This is an inconceivable proposition both in doctrine and practicality. To say the least, the whole idea is grossly misconceived, and any action of populist lawyers who want to push this line would have the effect of taking the political and legal institutions of Bangladesh to the brink of instability and chaos. In the remote possibility of overruling the 5th Amendment, the Bangladesh Supreme Court will be compelled to 'legalise' and 'condone' all acts and omissions of the martial law authorities between 1975 and 1979. Alternatively, the Parliament would be at liberty to pass another 'Amendment' to overturn the Supreme Court decision. It is advisable that such a confrontation between the Judiciary and the Parliament be avoided.
Looked in this light, it is improper both for politicians and lawyers to fling this predicament in the judicial forum, and for the judiciary to attempt to grapple with it to offer some solution. The fact that the Bangladesh Supreme Court has powers of judicial review under the Constitution cannot be contested. What is important though is the scope of judicial review, and the practicalities of its exercise. When confronted with issues like the 'legality' of the 5th Amendment and the possibility of a finding of judicial invalidity of it, the rationale for entrenching judicial review in the Constitution, the scope of this grant of power, and the doctrinal limitations on the use of this power must be considered.
Judicial review in post-colonial Constitutions like Bangladesh is a carry-over concept from colonial constitutional documents, like the Government of India Act 1935. Under this document, the superior courts, with the Privy Council at the apex, was given power to keep a check on legislative bodies, which though elected by whatever means, were classified as sub-ordinate law making bodies. In the post-colonial stage, Constitutions like that of Bangladesh entrenched this power, principally to reinforce 'constitutional supremacy', but also for the Court to ensure the operation of the individual rights guaranteed by the Constitution. In overseeing the operation of constitutional rights under the Bangladesh Constitution, the Court's power of judicial review is restricted by the legislative power of Parliament to enact laws for achieving a wide range of objectives like ensuring public order, morality, decency, affirmative action and so on. Parliament, under the Bangladesh Constitution, also has powers to amend the guaranteed constitutional rights of individuals. The conclusion therefore is inescapable that the legislative power of the Bangladesh Parliament is plenary, and the amending power, although exercisable by extraordinary majority, extends to every provision of the Constitution except, since 1991, changing the form of government.
Apart from facilitating the operation of constitutional rights of individuals, an inquiry into the judicial review power of the Supreme Court of Bangladesh must not be narrowly focused on the clause in the Constitution that lays down that the Constitution is the 'supreme law', and laws inconsistent with it shall be void. This provision is as much directed to Parliament as to the Judiciary. Apart from this, no other provision of the Bangladesh Constitution explicitly empowers the Supreme Court to engage in judicial review of legislation. The provisions in the Bangladesh Constitution that authorise the Court to ensure the functioning of guaranteed constitutional rights of individuals can only be classified as the power of 'judicial review of executive acts', not 'judicial review of legislation'. Despite this, the Supreme Court at times proceeded even to examine the legality of constitutional amendment and, in the past, even declared a constitutional amendment invalid. In terms of constitutional doctrine and theory, the Supreme Court has no such power. Even though it can be conceded that the Bangladesh Supreme Court has the power of 'judicial review of the exercise of legislative power' in certain areas it cannot have the power of 'judicial review of the exercise of constituent power'. In doctrinal terms, that would mean that the decision of a non-elected forum like the Judiciary would, as a matter of course, not only trump over the will of the people expressed through an elected legislature, but also the 'absolute will' of the people to bring about a change of the governmental system, expressed in the paramount charter, through which they want to be governed, for example a change from a presidential to a parliamentary system. If the Court ventures into this path, that would be tantamount to 'government by the court'.
The Constitution of Bangladesh establishes a representative democracy. In democratic theory, effective political power is exercised by the majoritarian institution -- the Parliament. This institution is comprised of electorally accountable members. The Court is a counter-majoritarian institution staffed by appointed and tenured members who have no political accountability. Its task should be restricted to overseeing that the mechanisms established by the Constitution are functioning optimally, and the political and social values inherent in the charter are given effect to. In this sense, the Court cannot substitute its own values over that of the majoritarian institution, the Parliament, which is primarily entrusted with preserving the values explicitly or inherently enshrined in the Constitution. In this role, the Court will be reinforcing the system of representative democracy, and encouraging participation in the political processes.
On questions such as the invalidation of the 5th Amendment, or the legality of an Amendment to the Constitution, the Bangladesh Supreme Court should adopt an approach along the lines of the 'political questions doctrine' invoked by the Supreme Court of the USA. This doctrine assumes that there are certain constitutional questions which are inherently non-justifiable. These questions and issues are identified as 'political questions', the resolution of which must be left to the political branches of government, or to the electorate as a whole, to have the final say. The Court cannot define the limits of the exercise of power that relates to these 'political questions'.
Constitutional parliamentary politics in Bangladesh had been in place between 1972 and 1975, and from 1991 to this day. For a young nation, this is something to take some small pride in. The legacy of intrigues, coups and counter coups, bloodshed, assumption of power by subterfuge, and authoritarianism, are behind the nation, and it should stay behind. In the West, it has taken centuries to build up democratic and parliamentary institutions. Reflections on the experience of these democracies would be helpful. Representative institutions should be nurtured in a spirit of tolerance, far-sightedness, and a certain degree of conformity to institutional legitimacy. The institutional capacity and limitations of 'non representative' institutions should be borne in mind so as not to cause a rapture in the co-ordinated efforts to build up inter-institutional and intra-institutional harmony to better serve the future aspirations of the nation.
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.
