Proposed constitutional amendment 'unsustainable'

M. Shahidul Islam

As the clock ticks towards the pros-pective Constitutional amendment, the judiciary of the
nation may be blamed for having stirred a political storm that it could have easily deflated.
The menace of that dreaded storm has hit home with devastating consequences lately, due to
the opposition BNP having refused on July 20 to join the proposed all-party committee, and,
a day before, committee's chief steward-designate, Suranjit Sengupta MP, having said, "Since
the opposition lawmakers do not want restoration of 1972's Constitution, they may not be
included in the committee."
The main concern now is not whether the government can affect the desired amendments,
but whether it should. The Fifth Amendment ratified all changes made to the Constitution
between August 15, 1975 and April 9, 1979; meaning that the governments during that
period-led respectively by Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and
Major General Ziaur Rahman-were unlawful. Such a generalized, sweeping assertion is too
difficult to sustain - legally and politically.

Controversial ruling
The HC ruling itself has originated from an old case initiated by the Bangladesh Italian
Marble Works on April 28, 1972, pertaining to the ownership of a cinema hall at Wiseghat
area of old Dhaka. The case's proceedings led the court to ask the government to explain why
'ratification and confirmation' of the Abandoned Properties 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. For decades since, the case
had laid dormant, gathered dust, yet did not cease to lurk as a combustible powder keg
waiting to explode upon certain remote controlled activation.
That hour of reckoning arrived in late 2005, at a time when the changed global political
dynamics found it expedient to replace the BNP-led government amidst the US-led, world-
wide anti-terror drive and the burgeoning Indo-US strategic alliance. Not coincidentally, a
High Court bench comprised of Justice ABM Khairul Huq and Justice ATM Fazley Kabir
made the ruling on August 29, 2005, after 33 years, and declared illegal and void the Fifth
Amendment and the Martial Law regulations issued between August 15, 1975 and April
1979.
As expected, the controversy over the ruling kept rolling ever since, thanks to its
clumsiness, obscurity and lack of nuanced analysis relating to the catastrophic impact it is
bound to have on the socio-political contours of our struggling democracy. The most
unsustainable aspect of the ruling was its choosing to make exceptions to the sweeping
branding of martial law as illegal, saying, '... 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 cherry-picking exception had lent itself to an interpretation
that the orders and the regulations made during that period were illegal while the acts done
under such orders were not. It sounded like saying, the messenger is genuine, but the
messages are not.
The ruling thus foisted the judicial arena of the nation into the most irreconcilable and
intractable contradiction, by displaying judicial opacity and lacking vividly in sound

1
jurisprudential doctrines and deserved fairness. The court also confused the ruling further by
stating: "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." What it probably means is that amendments made by the Fifth Amendment to
replace some provisions of the Fourth Amendment is condonable, others are not. Besides, the
ruling opined that the Preamble, Article 6, 8, 9, 10, 12, 25, 38 and 142 (of the Constitution)
will 'remain as it was in the original Constitution' and 'Article 95, as amended by the Second
Proclamation Order No IV of 1976,' was 'declared valid and retained.'
Simply put: the ruling is loaded with distinctive and discernible political prejudices.

Ramifications
Despite such anomalies, the HC ruling had enabled the AL-led regime to make an attempt
to revive the 1972 Constitution, the impact of which could be politically disastrous and
legally suicidal. Firstly, the revival of the 1972 Constitution will require total abrogation of
the First through Fourth Amendments, made by the first Awami League (AL) regime during
its reign from 1972-75. The fact that the Fifth Amendment had undone much of the Fourth
Amendment's constructs further testifies the indispensability of the Fifth Amendment and the
absolutism and the anachronism enshrined in the previous amendments.
Secondly, starting from our national identity to the chronicle of the post-liberation
generational struggles, the proposed amendment will alter everything. The re-institution of
the 1972 Constitution will turn the citizens of Bangladesh into "Bengalis,' as opposed to
'Bangladeshis', reigniting a settled confusion between the Bengalis of the Indian and the
Bangladeshi descents. Already we are the only country with a national anthem that does not
contain the name of the country itself.

No AL during Aug. '75 - Apr. '79

Thirdly, some experts believe, the ruling AL may face legal challenges in the future due to
there being no party called AL during the statutory period (August 1975 to April 1979). They
argue, during the August 15, 1975 coup, BKSAL was the party in power, led by Sheikh
Mujib, who had himself brought an end to AL. As Mujib made himself President and vested
sweeping power on himself through the Fourth Amendment (of January 1975) to the
Constitution, the Proclamation Order of August 20, 1975 used the same Presidential power,
by a civilian president, who chose not to suspend the efficacy of the Constitution.
Finally, the redundancy of the Fifth Amendment may call into probation the legality of the
Fourth Amendment, which had altered the fundamental fabrics of the 1972 Constitution. It
replaced, inter alia, multi-party parliamentary democracy with a one party presidential
system. The President was vested with beyond-reproach- power to do and undo anything he
liked. The Fourth Amendment empowered the President to dissolve Parliament at any time by
public notification (Art. 72). Like now, the AL then had 97.66% majority in the House.

Legality of Martial Law

The HC ruling's terming of Martial Law of 1975 as illegal needs justification and evidence
of higher merit to sustain. The legality of the post-August 1975 Martial Law was derived
from the proclamation of 20 August 1975 that stated: "The President may make martial law
regulations and orders, notwithstanding anything contained in the Constitution." As the
proclamation did not suspend the Constitution, the Moshtaque regime used the sweeping
Constitutional power of the President that the pre-August 1975 Constitution offered, and,
amended that aspect of the Constitution that relates to the modalities of electing a President
for the Republic, due to the manner by which he became a President.

2
 General Zia and many other senior officials of the military did not like that, which resulted
in Moshtaque's forcible removal from power on 6 November 1975, following the second
coup on 3 November 1975. The second coup having failed, Zia was sucked into the fray by
rebelling soldiers and Justice Sayem became the President. It was President Sayem who
declared the incumbent Chief of the Army, Maj. Gen. Zia, as the Chief Martial Law
Administrator, on 29 November 1976. Upon becoming the CMLA, Zia arrested, convicted,
and imprisoned Moshtaque on February 24, 1977, for the abuse of powers, and, Sayem too
resigned on 21 April 1977, after having appointed Zia as the President.
If Zia's becoming President is not deemed as illegal, which the HC verdict seemed to have
acknowledged without much hesitation, the holding by Zia of presidential election on 3 June
1978, and parliamentary election on 18 February 1978, amid martial law, could not be
interpreted as illegal either.

Constitution after 15 Aug. 1975

It was that elected parliament which, upon withdrawal of martial law on April 6, 1979,
enacted the Fifth Amendment and amended the Fourth Schedule (by adding a new clause
3A), through the Proclamation Order No. I of 1977, on April 9, 1979, to validate the martial
law acts. Besides, the validity of those acts must be traced to the validity of the Constitution,
which remained in force following the coup of 15 August 1975, and, at the time of the
abdication of power by Justice Sayem.
To the contrary, the proclamation order relating to the declaration of martial law in March
1982 suspended the Constitution, which constituted an act of sedition against the Republic.
Although, by implication, proclamation of martial law does render constitutional governance
null & void, the post-August 1975 regime did not choose to tread that path. Ironically, the
martial law proclamation that had suspended the Constitution in 1982 was welcomed by the
AL then, and the surrogate born of that unconstitutional conjugation is an ally of the AL now.
This is hypocrisy.

Transitional provision
More alarmingly, serious analytical pitfalls in the HC ruling stem from other major
omissions. The designated statutory period from August 1975 to April 1979 was a transitional
period marred by extreme turbulence and unpredictability, involving the fate of our nation.
Article 150 of the Constitution contains indemnity provisions for such transitional purposes,
as are enumerated in the Fourth Schedule.
For instance, Bangladesh proclaimed its independence on 26 March 1971 and the
Proclamation of Independence Order (of April 10, 1971) was invoked to indemnify all the
acts of war and peace until the adoption and passing of the Constitution on November 4, 1972
by the first Constituent Assembly. During this pre-Constitution- transitional period, our
government made laws, orders, and ordinances, performed functions, and exercised powers
without a Constitution. Those interim measures were ratified to have been duly made,
exercised, and done according to law.
The Judiciary and the legislation must acknowledge that, since there was no Constitution to
follow during those nine months when we fought a war of independence, those acts could not
be construed as unconstitutional. With the Constitution's coming into force, any act that is
deemed to have contradicted with the Constitutional precepts must be treated as illegal. The
military coup of March 1982 was the most distinctively identifiable act of unconstitutional
adventurism that the judiciary, the legislation and the executive should try to set at right first
before aiming their guns at the Fifth Amendment which had rescued the nation from the
hazard of a one-party dictatorship.

3
 (The author is a member in good standing of the International Bar Association (IBA) and
the American Society of International Law (ASIL).

Source: http://www.weeklyholiday.net/front.html#01

The Weekly Holiday Friday, July 23, 2010