Constitutional Analysis
15th amendment and constitutional sedition: Some issues
Barrister Md. Abdul Halim
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Photo: khalilur-rahman.com |
One of the most debatable issues introduced by the 15th Amendment to the Constitution of Bangladesh is the provision of sedition as provided in article 7A. In fact this new Article has created two substantive offences to be termed as Constitutional sedition:
(i) Abrogation, repeal or suspension of the Constitution by show or use of force or any other unconstitutional means (7A(1)(a)); and
(ii) Subverting the confidence, belief or reliance of the citizens to the constitution or any Article of it by show or use of force or by any other unconstitutional means (7A(1)(b));
Side by side two substantive offences this article also creates a pair of inchoate offences (attempt or conspire) and a pair of participatory offences (aiding, abetting, instigating, approving, condoning, supporting, ratifying).
In case of first category of sedition the offender has to either suspend, abrogate, or repeal the Constitution and any attempt or conspire to perform these actions will also be an offence and to constitute this offence the offender must either (i) show force; or (ii) use force; or (iii) use any other unconstitutional means. For practical purpose, ordinary citizens have nothing to worry about this first type of sedition since this show or use of force can in fact be done by the military authority. However, ordinary citizens will have concerns over the second category of sedition. Leaving aside the question of 'show' or 'use' of force, a person may, by 'any other unconstitutional means' subvert the confidence, belief, or reliance of the citizens to the Constitution or any of its articles. Here lies the most crucial and likely abusive part of the offence. Relying on this sub-article (b), the government of the day may file a case against a columnist or writer or news presenter or talk show presenter on the ground that the alleged writing, column, news or presentation or speech was written or presented in such a manner that it subverts the confidence, belief or reliance of the citizens to the Constitution. Leaving the question of proving the manner of 'unconstitutional means' aside, this sub-article gives sweeping power to the executive to harass citizens at the cost of their guaranteed freedom of speech, expression and press.
The government argues that this provision is an armory or savers clause and it has been introduced in line with the observation made by the Appellate Division in 5th Amendment case. In this case the Appellate Division strongly denounced martial law and suspension of the Constitution and recommended for suitable punishment to the perpetrators. However, the way the provision has been inserted in the Constitution has every possibility of being abused at the cost of peoples' guaranteed right of freedom of speech and press which in effect will turn it into a sinister clause in the Constitution. This is because of the following reasons:
First, the provisions in article 7A are identical with those in article 6 of the Pakistan 1973 Constitution. However, the Pakistan Constitution does not have the provisions inserted in clause 7A(1)(b) and as such the provisions in Bangladesh Constitution have been made more draconian compared to those in the Pakistan Constitution. Further, Pakistan Constitution provides that parliament shall make law for punishment of persons found guilty of high treasons. However, the provisions in Bangladesh Constitution leave the entire matter of punishment with the existing law of the country whereas the existing law (Penal Code) seems incompatible with these provisions.
Second, the category and status of the crime created in article 7A also seems clashing with the existing provisions in the Penal Code. Article 7A creates a separate offence named sedition, better to be termed as “Constitutional Sedition” but again sub-article 7A(3) states that persons alleged to have committed the offence shall be sentenced with the highest punishment prescribed for offences by the existing law. Now plainly speaking, the offence and its actus reas have been created by the Constitution whereas the punishment is to be hired from the Penal Code. This inconsistent outlook of penal jurisprudence in a sacred document like the Constitution seems irrational and conflicting with the spirit of constitutional jurisprudence. It will certainly generate unnecessary debate with constitutional interpretation. The Constitution creates an offence with constitutional significance but it neither mentions its punishment nor specifies the mode of investigation and proof and trial by courts etc. leaving many issues uncertain and vague. Which court will take cognizance of this offence? How will the investigation proceed? What will be the extent of 'show of force' or 'use of force'? How will the term 'unconstitutional means' be proved and at which standard? Likewise, 'confidence', 'belief' or 'reliance'- these words are uncertain and vague- who will explain these? How will their explanation be accepted by the courts? It was incumbent upon the parliament either to outline these or to empower parliament to make law in this regard.
Third, the way the offence has been designed in clause (2)(b) it sounds clear that even judicial condonation has been made an offence of sedition and the Supreme Courts power of judicial review and condonation for the sake of restoration of democracy has been blocked.
Fourth, the words, 'show of force', 'use of force' and 'unconstitutional means' are not only wide but are always subject to interpretation and debate. After the passage of the amendment the Prime Minister Sheikh Hasina stated on several occasions in public that the amendment has been made with a view to preventing extra-constitutional military take over only. However, the Prime Minister's contention has relevance only with regard to the first category of sedition in clause 7A(1)(a) but not with regard to clause 7a(1)(b). It is not indicated anywhere why the clause (b) (indirect sedition) was introduced. We should not forget that these stringent provisions were also inserted in the Constitution of Pakistan but these could not prevent military take over in that country. Genral Ziaul Haque and Parvez Mosarraf ruled the country with martial law suspending the Constitution in spite of these tiger-provisions but ironically they did not face charges of 'high treason'. Martial law or military take over never comes in force through constitutional means, and that they know no court verdicts; they don't care about court rulings; court verdicts are suspended or overruled by force; even judges become bewildered and succumbed to circumstances and so an amendment to the constitution is never a solution to prevent military rule. The only guarantee to hinder the unconstitutional take over of the state power by the Armed Forces is to install a truly democratic Constitution which articulates the will of the people and ensures the participation of all the citizens in the democratic polity. It is now apprehended that anyone who criticizes the Constitution may be prosecuted for sedition. This is glaringly manifested in the International Crisis Group Asia Report No 226 13 June, 2012 in which extensive interviews have been taken recently from experts and leaders but all are anonymous for fear of being charged with sedition.
It remains to be seen how these offences are dealt with by the judiciary. However, the constitution- the supreme law of the country is now full of contradictions and uncertainties.
The writer is an Advocate, Supreme Court of Bangladesh.
