Reviewing the views
5th Amendment case: Some concerns
Professor Rafiqul Islam
THIS article is a follow-up of my previous article on the Fifth Amendment published in The Daily Star on 16 May 2009. Since its publication, I received emails raising concerns about the consequences that may flow from any AD decision concurring with the illegality verdict of the HCD. Major concerns include the creation of a legal vacuum and non-continuity in governmental authorities and activities between 15 August 1975 and 9 April 1979. Indeed, the lawyers filing the leave-to-appeal petition specifically mentioned this argument of legal vacuum and non-continuity. Upholding the HCD decision by the AD also means that the constitutional governance will revert back to the 15 August 1975 situation, some aspects of which, notably the form of government, have undergone changes over the years. These concerns and consequences appear to be extraneous at their best and scare mongering at their worst in determining the constitutionality of the Fifth Amendment - purely a legal exercise.
Consequences of an act appear at the aftermath of the commission of that act. In the legal realm, it is the existing and applicable law, not the consequences, which determine the legality or illegality of that act. Someone may be extremely hungry and may die as a consequence. Would his/her hunger and its consequences legitimize him/her stealing food? We know too well that a justified end does not justify any prohibited means. All contents of the Fifth Amendment were ordained, promulgated, and maintained under martial law during the period when the constitution remained in force. These authorities could arguably have abrogated the constitution and justified their positions under the Kelsenian doctrine of effectiveness and validity. Instead, they kept the constitution in force, treated it with utmost abhorrence, and genuflected to it only to camouflage their illegal acts. Since the constitution was in force, the authorities in Bangladesh were duty-bound to respect and uphold the constitution. It is this profound lack of respect for, and adherence to, the constitution that lies at the root of the illegality of the Fifth Amendment. The martial law regimes were illegal by both what they did and what they failed to do.
The constitutional status of the martial law regimes in the Fifth Amendment is identical with that of the Yahya regime. In a bid to avert the Asma Jilani consequences, these regimes unduly sought impunity under the same constitution that they arrogantly defied by force. It is a legal fiction to say that they derived their authority from martial law and to justify that authority under the constitution, which outlaws the former. The Supreme Court of Bangladesh, being the custodian and guardian of the constitution, and its judges being bound by their oath, are duty-bound to defend the constitution. The concerns and consequences raised are extra-legal matters for the AD in deciding the constitutionality of the Fifth Amendment.
However, there are palatable legal and administrative options available to address those concerns and consequences, particularly when an elected parliament is functional in Bangladesh. The changes brought about by the Fourth Amendment have almost dissipated. Nonetheless, any undesirable aspects of the 15 August 1975 situation, say the form of government, may be invalidated and desirable aspects of governance between 15 August 1975 and 9 April 1979 may be given validity by current parliament. This precisely happened to the Indemnity Ordinance 1975, an element of the Fifth Amendment, which was invalidated by parliament to commence the Bangabandhu murder trial.
Parliament may enact an adaptation legislation to validate any laws and acts of those martial law regimes currently in force with a view to avoid any legal vacuum and non-continuity in governmental authorities. Precedents of such adoption exist in the law-making history of Bangladesh. Upon independence, Bangladesh issued the Adaptation of Existing Laws Order No. 48 of 1972, adopting certain laws and acts (of Pakistan) that were in existence and applicable in then East Pakistan prior to independence (such as the 1951 Citizenship Act) in order to fill up the gap created by the secession of Bangladesh from Pakistan. Parliament can choose and pick all acceptable elements of the Fifth Amendment and put a stamp of validity, even retrospectively if necessary. Parliament can also justify its action under the principle of necessity in the same way it endorsed overstay of the immediately past caretaker government and the Law Minister justified it as a matter of necessity. There are legal ways to overcome any potential vacuum in continuity. There is nothing in law or the constitution that prevents parliament from resorting to adaptation if the AD rejects the leave-to-appeal petition.
Proclaiming the Fifth Amendment constitutional on the basis of the raised concerns and consequences would tantamount to making a legal decision based on extra-legal considerations and the justified end turning the prohibited means into a permissible one a striking contradiction in any justice system. Its effect would be to condone many unacceptable elements of the Fifth Amendment. It would validate all acts of the martial law regimes, including those that vandalised and tailored the constitution to cater for their political ambitions, removed the constitutionally entrenched ideals of the liberation war, recommunalised politics, stultified the development of political institutions, made politics difficult for politicians by creating political turncoats, installed pliable parliament through rigged elections, introduced military oligarchy with democratic outfits, hamstrung the rule of law for the rule of the jungle to prevail, and pursued sectarian interests.
Constitutionalism in Bangladesh has been on a roller-coaster ride. Mischievous interference by the Fifth Amendment stripped the constitution of its basic structural essence and coherence. The judicial scrutiny of its retrospective unconstitutionality is in order and indeed imperative to generate a deterrent effect prospectively on those anxious of exploiting the constitution as a political ploy to conceal their self-serving spurious agendas. It is the assigned and assumed responsibility of the Supreme Court to preserve the constitutional value and dignity as the supreme law of the Republic. There are credible avenues for adjustments to avoid any legal vacuum, and ensure governing continuity and stability without abrupt interruptions from the past. For citizens, it is a matter of stark and reasoned choice between support and sympathy for lawful, and opposition and antipathy for unlawful, behaviours. We should not exaggerate our concerns and consequences to serve vested interests and to frustrate our ongoing quest for a law-abiding culture so fundamental to our dignified existence.
Dr. Rafiqul Islam is Professor of Law and Director of the Law PhD Program, Macquarie University, Sydney, Australia.