Md. Abdul Halim, Bar-at-Law
The judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has so far raised little hue and cry until May 4th 2009 when the Attorney General surprisingly moved a petition for withdrawing the leave-to-appeal petition in such a case having grave constitutional implications and interpretations. As the present government has decided not to continue the appeal any more, the Appellate Division has allowed filing of petitions for leave to appeal by Khandker Delwar Hossain and other two interveners. This write-up is intended to explore some constitutional issues involved in the judgment of 5th Amendment case and the pitfalls in withdrawal of the appeal.
Apart from declaring the 5th Amendment illegal and ineffective, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between 15th August, 1975 and April 1979. The court held that usurpation of the state power through martial law proclamation, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional. The judgment as it is reported in BLT Special Issue 2006 contains 242 pages with 22 points in its operative part. The judgment is largely based on some doctrines under constitutional jurisprudence: doctrine of illegality or unconstitutionality, doctrine of basic structure, the power of judicial review under a written constitution (constitutional ultra vires) and principle of oath of office under the constitution. Apart from the scrutiny of limits of some these doctrines, there are some jurisdictional and constitutional continuation issues which the Appellate Division should examine in detail.
'Past and closed transaction' and 'Condonation':
His Lordship Mr. Justice A.B.M. Khairul Hoque held categorically in the judgment:
All acts and things done and actions and proceedings taken during the period from August 15, 1975 to April, 9, 1979 are condoned as past and closed transactions but such condonations are made not because those are legal but only in the interest of the Republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.
The preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condonation is allowed in respect of these provisions of the Constitution.
Besides, Article 95, as amended by the Second Proclamation Order No. IV of 1976 is declared valid and retained.
Various Ordinances passed during the period between August, 1975 and April, 1977 are condoned.
Thus it is clear that on question of condonation the court has adopted the method of pick and choose. While declaring the whole amendment illegal and then accepting part of it as legal; condoning all laws passed by way of ordinances and then retaining the provisions in Article 95 as amended by the 5th Amendment seem irrational and needs further scrutiny by the Appellate Division.
Likewise, the extent and limit of the doctrine of 'past and closed' transaction needs more scrutiny by the Appellate Division. Can any criminal liability be condoned by this type of judgment? If so, the trial and imposition of punishment for killing of Banglabandhu Sheikh Miujib would be impossible in the eye of law as this would also be a part of 'past and closed transaction'. Second, if all transactions including acquisition of properties under Martial Law order and rules are treated as 'past and closed transactions' judicially, how can the court give order for returning the ownership of Moon Cinema Hall? Is the door of judicial remedies for any other affected person during that period is closed forever?
Disputed 4th Amendment and the 5th Amendment Case:
The High Court Bench was mindful of the undemocratic provisions of the disputed 4th Amendment to the Constitution. However, Their Lordship stated that first, the 4th Amendment was not an issue before them; second, the said amendment was passed by a sovereign parliament, admittedly by overwhelming majority of the representatives of the people, and third, the 4th Amendment was never challenged before any court. There is no doubt with regard to first and third arguments of their Lordship. However, it is respectfully arguable that even a parliament with overwhelming majority cannot change the basic structure of the Constitution as held in 8th Amendment case. Second, as their Lordship were concerned with 5th Amendment only. They lacked jurisdiction admittedly to alter or retain any provision introduced by the 4th Amendment which was not issue before them. However, their Lordship avowedly and in self-contradicting manner retained some provisions altered by the 4th Amendment. For example, provisions of 'consultation with Chief Justice' while appointing judges under Article 95 was deleted by the 4th Amendment but restored by the 5th Amendment. If their Lordship wanted to scrap 5th Amendment, how did they go beyond their admitted limit and scrapped part of the 4th Amendment? Third, the Appellate Division should examine the limit of the doctrine of judicial review; judicial review power is not and cannot be equivalent to the plenary law making power of the parliament. By way of exercising judicial review power, the High Court Division cannot directly make law; direct law making power, i.e., plenary law making power is the prerogative of the parliament. The judiciary can only see if the parliament by using its plenary power is transgressing the bounds of the constitution or not. While admitting that any provision of 4th Amendment was not issue before them and at the same time scrapping provisions of 4th Amendment and retaining provisions in the original Constitution, their Lordships seem to have taken self-contradicting step. Fourth, the judgment in 5th Amendment case arose from a writ petition filed in 2000 under Articles 102(1) and 44 of the Constitution. Both these Articles were deleted by the 4th Amendment and had they not been restored by the 5th Amendment, their Lordship would not have any jurisdiction to even hear the matter; let alone pronouncing any judgment. Their Lordship's oath of office of which they have given the utmost importance in their judgment and sacred duties imposed upon them under Articles 102(1) and 44 is itself the result of the 5th Amendment as this amendment restored them. Declaring 5th Amendment illegal would, therefore, also mean the non-existence of Articles 102(2) and 44 of the Constitution. No point with regard to this vital issue was raised before their Lordship and as such it is arguable that declaring 5th Amendment illegal without first declaring 4th Amendment illegal would necessarily mean total lack of jurisdiction of the apex court to hear any writ on fundamental rights.
Oath of Office of Judges and Constitutional Continuity:
His Lordship started his judgment with the utmost importance and solemnity of His oath of office. Certainly His Lordship did not take oath under the original Constitution; oath was administered under the Constitution as it stood on the day of oath. If they were administered oath under the Constitution as stood after 4th Amendment which their Lordship admitted was passed by sovereign parliament with overwhelming majority of the peoples' representative, they would certainly not have been in a position to hear a writ for enforcing fundamental rights as Articles 102(1) and 44 were completely wiped out from the Constitution. If today the 5th Amendment is upheld, the Constitution will be, by operation of judgment, without Articles 102(1) and 44 and in such a situation the apex court will not have any jurisdiction to hear any writ for fundamental rights. What will be then the position of pending writs and writs already disposed of in last 31 years, bearing in mind that both these Articles were restored by President Sayem on 28th May, 1978 by the 2nd Proclamation (Seventh Amendment) Order? Thus on jurisdictional issue it is likely that constitutional continuity will be hampered if the judgment in 5th Amendment is upheld.
Preamble and Bismillahir Rahmanir Rahim:
The original constitution did not use these religious words in the preamble of the constitution. These words, inter alia, were inserted by Proclamations (Amendment Order) Order, 1977 by late President Ziaur Rahman and in the very first edition of my book on Constitution, Constitutional Law and Politics this writer commented that these religious words were inserted with a political end. It was a constitutional tricks played by Ziaur Rahman especially to get quick support from a large section of people who are religious but illiterate and politically unconscious. The 5th Amendment judgment is completely silent about this meaning that if this judgment is upheld, Bismillahir Rahmainr Rahim will no longer be in the constitution although the law Minister is advocating that this would not be so.
Judgment in 5th Amendment case: Bandwagon for Law Minister?
The Law Minister Barrister Shafique Ahmed stated that over 50 religion-based political parties will get banned if the Appellate Division upholds the High Court Division's judgment. This is true but it is difficult to understand why a political government should cry for riding over a shoulder of a judicial caravan for amendment to the Constitution. The ruling party has more than two-thirds majority in the parliament and they can easily bring about necessary changes to the Constitution with a view to returning to the original Constitution. This is reinforced by the fact that the judgment in 5th Amendment will restore the position before the declaration of martial law in 1975 and this will, in no way, bring back the provisions of the original Constitution.
Finally, if the judgment in the 5th amendment case is upheld, some important decisions by the Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. Chief Election Commissioner, Haji Jaynal Abedin V. State, Jamil Haque V. Bangladesh, Nasiruddin V. Bangladesh, Khandakar Mostaque Ahmed V. Bangladesh, Khandker Ehtesamuddin Ahmed V. Bangladesh, Bangladesh V. Mahbubur Rashid, Presidents Secretariat V. K. Mahtabuddin Ahmed, Nasir Kader Siddiqui V. Bangladesh will be affected as these judgment accepted that martial law proclamation, regulation etc, were supreme law and the Constitution lost its character as supreme law.
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