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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 210
October 8 , 2005

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Star Law Analysis

Role of the judiciary in military intervention

Barrister Md. Abdul Halim

Doctrine of necessity
The present Pakistan constitution was adopted in 1973 when Zulfiker Ali Bhutto was the Chief Martial Law Administrator and president. But in 1973 General Ziaul Haque, the Chief of Army led a military coup; ousted Bhutto and his government; dissolved parliament; suspended the constitution and declared martial law. The legality of this martial law came up for consideration in Begum Nusrat Bhutto V The Chief of Army Staff and Federation of Pakistan. The Supreme Court declared martial law and military coup by Ziaul Haque valid; it overruled the decision of Asma Jilani. But this time the court did not rely on the doctrine of efficacy; rather it resorted to the doctrine of state necessity. The court said: ".... It was in this circumstances that the Armed Forces of Pakistan ... intervened to save the country form further chaos and bloodshed to disaster. It was undoubtedly an extra-constitutional step, but obviously dictated by the highest consideration of state necessity and welfare of the people. .... The imposition of martial law was impelled by high considerations of state necessity and welfare of the people, the extra-constitutional step taken by the Chief of Army staff to overthrow the government of Mr. Bhutto, as well as the provincial government and to dissolve the Federal and Provincial legislature stand validated in accordance with the doctrine of necessity."

Dilemma for the judges
Thus when martial law is declared just to capture power through military coup or to oust the existing government for any other purpose, this martial law does not have any legal validity. But due to pressure of realities and facts or under a threat the judges have tried to legalise this type of martial law sometimes on the basis of the doctrine of efficacy and sometimes, on necessity. Again, when there has been no threat or any pressure, the court has emphatically declared this martial law illegal. For example, when the Pakistan Supreme Court delivered its judgment on Asma Jilani's case Yahya and his regime had been discredited and removed from office and martial law was not in force. Likewise, the decision of E.K. Sallah's case also came after the military government had ceased to exist. If such judgments are pronounced during the continuance of military rule and martial law, there is danger for the judges and the courts so pronouncing; they will either be suspended or their jurisdiction will be restricted or the judges concerned will be removed from office by the new regime. Again, it is improbable that the judgment of the court would have made the slightest difference to the continuance of martial law, because the military authority does not hesitate to fraustrate such judgments by issuing decrees or proclamation. For example, when the Lahore High Court of Pakistan in Malik Mir Hassan V. State declared the proclamation of martial law declared 25th March ,1969 illegal, the military authority issued the President's Jurisdiction of Courts (Removal of Doubts) Order, 1969 by which the courts were barred from questioning the exercise of powers by the Martial Law Authority and the decision in contravention of this would be deemed to be of no effect. Likewise when the Supreme Court of Nigeria in Lakanmi V. Attorncy General declared the military coup and martial law illegal, the decision of the court was made ineffective by the military government by issuing the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970. The situation has best been explained by Justice Fieldsend in Madzimbamuto V. LardnerBurke N.O. and another: "It may be a vain hope that the judgment of court will deter a usurper, or have the effect of resorting legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality."

Thus the legality of so-called martial law which is followed by a military coup or revolution does not depend on the courts justification or judgment; rather it conversely controls the courts and judges. Judges are simply forced into a position of accepting the facts and the laws as they are, whether he likes or not. He has been taken over by events." An Argentinan Judge (Oyhanarte. J.) has aptly described the dilemma of judges : "The Supreme Court cannot modify the course of history. It lacks the power necessary to do this. When it is faced with the overthrow of constitutional authorities and the installation of a government of force by what have come to be called 'revolutionary' means, the judges of the court can do three things :
(i) resigns, thus transferring the responsibility of the decision to others ;
(ii) simply accepts the fact ;
(iii) try to save those institutional values which can still be saved."

But the judges should make choice for the third alternatives because, as mentioned by Mastafa Kamal. J. 'resignation of judges in revolutionary situations has not been uncommon, but except for the ripple that it causes in the body politic neither the judges by resignation en masse or in ones or twos have been able to deflect the revolutionary regime from following the course of action it chose to persue nor have the people at large carried the mantle from the judges to overthrow the extra-constitutional force. On the other hand when judges resigned in protest against an unconstitutional take-over or when judges were removed because of their obstruction to the wishes of the new authority, their successors on the Bench merely conformed to the wishes of the new regime and often they were also of so low a calibre that justice was no longer administered properly.

Persue Martial law in Bangladesh
The Constitution of Bangladesh does not envisage the imposition of martial law. Throughout the text of the Constitution, no reference has been made to Matial Law. Although the term 'Martial Law' had duly occurred in Article 196 of the 1956 Constitution of Pakistan and Article 223-A of the 1962 Constitution of Pakistan, the Articles which enacted provisions for passing an Act of Indemnity in relation to acts done in connection with Martial Law Administration, it has significantly been omitted form corresponding Article 46 of the Constitution of Bangladesh that empowered parliament to pass an Act of Indemnity in respect of any act done in connection with the national liberation struggle or the maintenance or restoration of order in any area in Bangladesh. This shows that although in Pakistan Articles 196 and 223A of the 1956 and 1962 Constitutions respectively, recognised the possibility that Martial law might be imposed under the common law doctrine of necessity for the purpose of 'the maintenance or restoration of order in any area in Pakistan', no such recognition was given in Bangladesh where the phrase 'Martial Law' was omitted from the analogous Article 46 of the Constitution of Bangladesh. Therefore, it appears that in the Constitution of Bangladesh there is no provision whatsoever for the imposition of martial law under any circumstances even for the sake of restoring law and order.
But like some other commonwealth countries martial law was imposed unconstitutionally in Bangladesh twice first, on the 15th August, 1975 and second, on the 24th March, 1982.

On 15th August, 1975 Sheikh Mujibur Rahman, the then President of Bangladesh was brutally killed with his family members by a military coup. Following this assassination martial law was declared throughout the country. Khandaker Mostaque Ahmed assumed the office of the President. Though martial law was imposed, the Constitution was not suspended; it was to remain in force subject to martial law proclamation, regulations, orders etc. This martial law continued for 3 years and 7 months. On the 5th April, 1979 the Chief Martial Law Administrator and President Ziaur Rahman got his extra-constitutional regime legalised through the parliament which was elected during the continuance of martial law and on 6th April martial law was withdrawn.

For the second time martial law was imposed by the then Chief of Army Lieutenant General Hussain Muhammad Ershad ousting the civil government of Justice Abdus Sattar on 24th March, 1982. This time the Constitution was suspended. This martial was kept in force for 4 years and 7 months. On 10th November, 1986 General Ershad legalised his regime through a parliament which was elected during the continuance of martial law and on the next day martial law was withdrawn. It is pertinent to note here that unlike the case of Dosso and Asma Jilani in Pakistan, in Bangladesh the legality of the declaration of martial law was not discussed by the Supreme Court in any case either during the continuance of or even after the withdrawal of martial law. But some fringe questions relating to martial law came up for consideration before the courts in some cases (like Halima Khatun V. Bangladesh 30 DLR, Sultan Ahmed V. Chief Election Commissioner 30 DLR…
etc ) the courts declared that martial law proclamation regulation etc. were supreme law and the Constitution lost its character as the supreme law. In this respect, the observations of Fazle Munim. J. in the case of Halima Khatun V. Bangladesh is worth quoting :

"What it appears from the Proclamation of August 20, 1975 is that, with the declaration of Martial Law .... the constitution of Bangladesh ... (has been made) subordinate to the Proclamation and any regulation or order as may be made by the president in persuance thereof .... Under the Proclamation ... the constitution has lost its character as the supreme law of the country. There is no doubt, an express declaration in Article 7(2) of the constitution to the following effect," This constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this constitution that other law to the extent of such inconsistency be void." Ironically enough, this Article, though it still exists must be taken to have lost some of its importance and efficacy. In view of .... the Proclamation the supremacy of the constitution .... is no longer unqualified."

The author is an advocate of the Supreme Court of Bangladesh.


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