Editor's Pick

Removing innovations from the constitution

5 February 2010, 18:00 PM
EDITORIAL
Muhammad Zamir

A legal process initiated on April 28, 1972, by the Bangladesh Italian Marble Works pertaining to a dispute over a cinema hall at Wise Ghat in old Dhaka has eventually led to the possible restoration of the original pristine features of our Constitution. The dispute started with the possession of the hall, but the legal process subsequently led to the government being asked to explain why 'ratification and confirmation' of the Abandoned Properties (Supplementary Provisions) Regulation 1977 (Martial Law Regulation VII of 1977) and Proclamation (Amendments) Order 1977 with regard to insertion of Paragraph 3A to the Fourth Schedule of the constitution by the Fifth Amendment to the Constitution would not be declared illegal. This judicial dynamics continued through several tiers over the next few decades and exhaustively dealt with the nuances, connotations and denotations of different enactments and various Orders and Amendments issued and made between 15 August 1975 and April 1978. Eventually, the High Court bench of Justice ABM Khairul Huq and Justice ATM Fazley Kabir on August 29, 2005, delivered a verdict declaring illegal and void the Fifth Amendment (which had special bearing for the case) and the Martial Law regulations issued between August 15, 1975 and April 1979. The verdict, however, also pointed out that '… 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.' This was construed to mean that according to the verdict, such matters would not be deemed illegal or void under the declaration the court had made. The court also observed that 'condonations of provisions were made, among others, in respect of provisions, deleting the various provisions of the Fourth Amendment but no condonation of the provisions was allowed in respect of omission of any provision enshrined in the original constitution'. It was also pointed out that 'the Preamble, Article 6, 8, 9, 10, 12, 25, 38 and 142' will 'remain as it was in the original constitution'. In addition, 'Article 95, as amended by the Second Proclamation Order No IV of 1976' was 'declared valid and retained.' When the HC delivered the judgment in 2005, the BNP-Jamaat led four-party alliance was in power, and the government sought to appeal against the verdict. This process however remained incomplete over the next few years. Matters changed after the present government assumed office. They decided not to challenge the verdict. Seeing this, the Bangladesh Nationalist Party's Secretary General and three other lawyers filed two provisional petitions on May 3, 2009 seeking permission to appeal against the High Court verdict. In response, the Chief Justice-led six member bench of the Appellate Division has now pronounced that 'the petitions for leave to appeal are dismissed with modifications and observations'. Some have argued that this suggests a degree of uncertainty with regard to which parts of the High Court verdict will be upheld and retained by the highest court. The BNP has seized on this slight lack of clarity to point out that one needs to wait and see whether restoration of the provisions would require further enactment of the Parliament. This view, as expected, has not been accepted by those associated with the Office of the Attorney General and they have held that only a reprint of the constitution with the addition, alteration and substitution of the provisions, as to be directed in the final judgment, will be enough for the restoration of these provisions. The Attorney General quite rightly has referred to the process of revival of the original Article 100 as a precedent. Nevertheless, the Law Minister has mentioned that the Law Commission would be asked for their opinion with regard to the implementation of the judgment and if the Law Commission suggests any enactment by the Parliament, such a course of action would receive consideration. This is constructive engagement at work. The way ahead will be complex and definitely contentious. We will have to deal with sensitive issues and ramifications pertaining to religion and fundamental principles of state policy. That will, among others include the reverting of citizens being known as "Bangalees' as opposed to 'Bangladeshis' (Article 6). One thing is however clear. The decision has possibly paved the way for the return of the Constitution to the four fundamental principles of the state -- nationality, socialism, democracy and secularism -- as stipulated in the original Constitution (under Article 8). Restoration of the original Article 9 will also mean the re-affirmation of our ethos as represented through our war of independence. In this context, it would however be important to see if references towards encouragement of local government institutions and participation of women in all spheres of life (included in amended Articles 9 and 10) are somehow retained. It would similarly be interesting to see how principles enunciated earlier in the original provisions and later amended in Article 38 (barring the right to form associations or unions where members might have religion for its object and pursue a political purpose) and that in Article 42 (related to acquisition, nationalization or requisition and compensation) are dealt with. In addition, there will have to be a very careful consideration of Article 142 which at various times has been amended through the Second Amendment, the Fifth Amendment and also the Twelfth Amendment. It refers to crucial aspects associated with the parliamentary process and will need to be handled with caution. Some lawyers have expressed the opinion that the declaration of the Fifth Amendment being illegal might denote the revival of the Fourth Amendment which had introduced a presidential form of government and a one-party system in January 1975. This has been a deliberate attempt aimed at creating controversy and misleading the nation. This is not so. It is a matter of relief that our Law Minister has already clarified this issue by pointing out that the 12th and other Amendments had scotched that possibility. We have to understand that the importance of this decision arises from the fact that it is restoring the spirit of the 1972 Constitution and also asserting that imposing martial law or usurping power through any extra-constitutional means will always be treated as illegitimate. The Fifth Amendment, to one like me, has always remained as a symbol of mis-governance whereby ratification was granted to actions that not only destroyed the basic character of our Constitution but also made it subordinate to iniquitous martial law proclamations, orders and regulations. That allowed the young nation to become captive to politics based on religion and also provided sanctuary and political rights to anti-Liberation War forces and war criminals. In turn, this permitted the growth and evolution of communal politics. One needs to conclude by appreciating the courage shown by our Judiciary and their affirmation that turmoil or crisis in a country cannot be the excuse for 'any violation of the Constitution' on any pretext. It is reassuring to see the highest court of our country observing that any turmoil or crisis within our body-politic 'must be faced and quelled within the ambit of the Constitution and the laws made thereunder, by the concerned authorities, established under the law for such purpose'. Muhammad Zamir, an Advocate, is a former Secretary and Ambassador and can be reached at mzamir@dhaka.net

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