Wednesday, 20 October 2010

Where do we stand now, constitutionally?

Dr M Shah Alam
Dr. M. Shah Alam , member of the Bangladesh Law Commission, wrote an article regarding recent debate of Constitutional amenment and reprint in the country. The article is published here for the BLHouse readers.

BLHouse Report
M. Shah AlamIt is becoming increasingly clear that it is not as easy for the government to address the post-Fifth Amendment judgement situation as was thought by many. The task has been further complicated by the Seventh Amendment judgement. There is speculation that the State-Religion part of the Eighth Amendment can also be challenged.

True, the power to amend any constitution exclusively lies with the parliament. It is equally true that the verdict of the apex court has the force of law and is binding on any individual or institution in the country. Our parliament is yet to amend the Constitution in line with the Supreme Court verdict, while the verdict itself is in the full force of the law. What, then, is our constitutional position now? And how weare going to put all the questions, speculations and confusions brewing around this at rest?

At first glance the issue appears to be more of procedural nature than substantive, because considering the imperativeness of the apex court's verdict it only remains for the government to take necessary steps to implement the verdict. One way to do it is to make necessary gazette notification to reinstate the restored provisions and reprint the Constitution.

However, the Fifth Amendment has been declared void subject to many condonations. The necessity to take a huge number of condoned and cancelled provisions of the Constitution into consideration with their chain reactions, though characteristically procedural in nature, possesses great substantive value. This is a unique situation.

The Bangladesh Constitution was never repealed, but suspended. The military rulers who suspended the Constitution revived it in full measure only after they provided validity to their acts and actions by way of amendments made by the parliaments elected under special circumstances. The Supreme Court functioned under military rulers, and condoned their acts and actions.

Now, for the first time, the apex court has given a landmark judgement that the military rulers' coming to power and their acts and actions were illegal. However, many of their acts and actions had to be condoned for understandable reasons.

The judgement would restore many of the features of our original constitution of 1972 and the ideals of our war of liberation. The task of the government after the judgement has few parallels and precedents in history.

This explains why accomplishing the task may prove bumpy. Conventional constitutional jurisprudence may not be of much help here. A unique situation has to be dealt with uniquely, setting precedents rather than taking a cue from any past precedents.

Under the extraordinary constitutional situation in which Bangladesh finds itself now, two distinct approaches for its possible resolution are identifiable. First is that the government is under an obligation to take the judgement into full cognisance and correctly put the relevant provisions in the body of the Constitution by practiced administrative mechanism, i.e. gazette notification. Second is for the Parliament to amend the Constitution based on the judgement, or in other words, to implement the judgement by amendment.

Both approaches are legally tenable. It is now more a question of the government's political choice as to how it would proceed. However, one cannot escape the thought that had the party in power not commanded two-thirds majority in the Parliament and the opposition had not cooperated, how would it move with amendment approach? In that case gazette notification would be the only option, for the verdict of the apex court cannot remain unattended to.

Whatever the method employed by the government, it will have to face the socio-political consequences of the judgement or the purported amendment. Contrary to what many may think, it is unlikely that it would be less onerous for the government to ride on the apex court's judgement and implement it executively.

It is also clear that the government does not want to see the full impacts of the judgement realised, if the judgement is interpreted in a strict sense. This especially relates to use of certain Islamic terms in the Constitution, religion and religion-based parties. Of course, the government, by dint of its two-thirds majority, has the option to obviate such impact by amendment.

The judgement is in full force; the expected amendment is waiting. What is our constitutional position now? Hypothetically speaking, should a case now come before the Supreme Court which requires reference to the impugned provisions of the Constitution, which law would be referred to -- pre-judgement provision of the Constitution or the relevant portion of the judgement? The situation warrants taking of prompt measures, legislative or executive. Constitutional uncertainties ought not to persist for long.

Considering the uniqueness of the situation and the fact that the details of the judgement would need to be ascertained in concrete words before they could be inserted in the text of the Constitution, and also that some of the impacts of the judgement the government would like to obviate, can the above two methods be combined?

To repeat, the Parliament's amending power is exclusive. On the other hand, the Supreme Court is the guardian of the Constitution, having the exclusive power to declare not only any ordinary law unconstitutional but also any law amending the Constitution, if such amendment violates its basic structures.

The situation demands that the government combine the methods, first, by declaring unequivocally the imperativeness of the judgement, clarifying and concretising its provisions, and then also declaring its intention, if any, to amend certain provisions revived by the judgement.

Although it may appear unique, this can be done by an amendment act of the Parliament. This will resolve the dichotomy of the two, shorten the time for constitutional readjustments, and uphold the respective powers of the Parliament and the Supreme Court. In addition, some constitutional issues not covered by the judgement, but long discussed in the community, can be considered in the same amendment act.

 Dr. M. Shah Alam is Professor of Law, University of Chittagong.

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