Law Alter Views
On coup d' etat, constitutionalism, and the need to break the subtle bondage with alien legal thought
A reply to Omar and Hossain
This write-up aspires to reflect on a recent article in The Daily Star, Law & Our Rights page by Dr Imtiaz Omar (an established researcher on the judicial role in emergencies) and Mr Zakir Hossain (who taught me American constitutional law in 1994-5) who apparently responded, in their academic pursuit, to the recent moralising decision by the High Court Division ("HCD") proclaiming (through observations) the unconstitutionality of the first martial law regime that, in its opinion, was a "grave" legal wrong and "remains so for all time to come". The authors not only virtually assailed this politico-contextually radical, if long overdue, decision, they also embarked on some doctrinal issues concerning the judicial role in such a constricted fashion that it risks the judges being pushed to abdicate their constitutional responsibility in particular while deciding 'hard cases'. This is the backdrop of this review article.
In short, the authors think it improper for the judiciary to indulge in the issue of legality of the 5th amendment (that validated activities of the martial law regime), as it might lead the Court to declare the coup d' etat unconstitutional retrospectively, and then to "'legalise' and 'condone'" all activities of the martial law authorities. Such a position appears to them to be "hypothetical" and "adventurous". They go further to the extent of arguing that if the "5th Amendment is [held] 'unconstitutional', […] then […] all other succeeding Amendments will be invalid", and that the "4th Amendment will be reinstated, with the consequential effect of the one-party presidential system" being restored. This is clearly a generalised, flat argument that refutes the possibility that the Court can declare something unconstitutional and illegal which was really so, without creating a legal vacuum. Without being "compelled to legalise" past extra-constitutional activities, the Court may well refuse to void them for the sake of legal continuity which the authors fear would have otherwise been impaired. In a constitutional democracy, the Supreme Court is the guardian not only of the Constitution, but also of constitutional ethics and social values. In a country such as Bangladesh where these ethos and democratic foundations were demolished many times, it is a vital constitutional duty of the judges to say to the nation, whenever the opportunity comes, about what wrongs were done to its constitutional life. Any one who believes in "moral reading" of the Constitution (R. Dworkin, Freedom's Law) rather than in constitutional textualism would thus find the authors' proposition retrograde.
More worrying is the authors' rigid view about the role and scope of judicial review under our constitutional power-allocative arrangements. They find no provision in the Constitution, apart from Article 7 (constitutional supremacy clause), that specifically authorises judicial review of legislation. The provisions that guarantee constitutional fundamental rights have also been interpreted by them as creating the "the power of 'judicial review of executive acts'" only, and not legislation. Analysis of this sort glamourises a method of disintegrative constitutional interpretation, as it marginalises article 7, the 'pole star' of the Constitution. Even when they reluctantly admit judicial review of legislation, they argue that the judiciary lacks the "power of judicial review of the [legislature's] constituent power." Their "inescapable" conclusion is thus that the Parliament's "plenary" amending power "extends to every provision of the Constitution except, since 1991, changing the form of government". It is clear that the authors stand against the Appellate Division's landmark decision in the 8th Amendment case to the effect that legislature's plenary power cannot be exercised to deconstruct the basic structure of the Constitution. They have academic freedom to take such a stance (even Mr Justice A T M Afzal did exactly so in his dissent in that case). But how logical is it to say that Parliament cannot change the form of government 'since 1991'? Even the basic structure doctrine did not go to that extent. Also, they are of the opinion that "in terms of constitutional doctrine and theory," the Court had no power to invalidate the 8th constitutional amendment, and that such a power is compatible with the concept of popular sovereignty.
Where do the authors derive this constitutional doctrine? As appears below, they draw it certainly not from the internal rich vault of their autochthonous constitutional legal system, but from the outside. I find it extremely difficult to concede to their view that "judicial review in post-colonial […] Bangladesh is a carry-over concept". Ours is a transformative constitution, aimed at a just social order based on certain core values such as justice (social, economic and political), human dignity, and rights-and-duty-based democracy, and hence judicial review here has its own unique indigenous instrumentality. The debate of the above kind about judicial review is essentially an American debate, where some but not all scholars still consider that the very judicial review was not originally intended and that the judiciary arrogated this power to itself. They, like our authors being reviewed here, think that judicial review is 'counter-majoritarian' and hence this, even when accepted, should be under strict limits so that 'non-elected' judiciary cannot overrule the majority expressed through the parliamentary acts or constitutional amendments. In the contemporary constitutionalism discourse, there is hardly any place for such a concept of uncontrolled majoritarian democracy. True constitutionalism demands a complete political responsibility of the government to those who are governed: it should be so, because, the people govern themselves through the elected representatives. But once elected, these representatives do not inherit a blanket power to do everything they wish until they are de-elected in the next election. Here comes the role of the constitutional parameters and contours of governance to enforce which the Constitution itself provides a unique mechanism called 'judicial review'. Moreover, today's democracy means substantive democracy rather than procedural/formalistic. Elections and the rule of primacy of majority decisions are the formal aspects of democracy; its substantive virtue resides in the guarantee and realisation of certain fundamental rights and in constitutionally sustainable, ethical, humane and pro-values decisions and actions. Whenever there is an overthrown of these fundamentals, be it through a constitutional amendment or a seemingly efficacious military intervention, or through state inactions, the higher principle of rule of law (not 'laws') or constitutionalism demands of the Court the performance of its constitutional duty in exploring, and if possible remedying, any constitutional wrong. This is exactly what the recent HCD-ruling (exploring a past gross unconstitutionality) seems to have done. Neither such a ruling nor a judgment of the type in the 8th Amendment case thus leads to a 'government by the court', as our authors would have it, but to a triumph of constitutionalism. For these reasons, the doctrine of inviolability of the basic constitutional structure, now anchored in South Asian legal systems (India, Bangladesh, Nepal), though misfits in Western constitutional theories, nevertheless constitutes a desired protective wall against any potential subversion of constitutionalism. Truly speaking, this doctrine, a result of creative and activist judging, is increasingly gaining prominence as a principle of global constitutionalism. For example, though the South African Constitution does not specifically prohibit alteration of its basic structure, the country's Constitutional Court has recently suggested a possibility that it might not consider valid an 'amendment' to the Constitution that would radically restructure its "fundamental premises" (United Democratic Movement v President, 2002).
On the question of the desirability of judicial engagement with legality of the 5th amendment or of "an Amendment to the Constitution", the authors pre-emptively advise the Supreme Court to "adopt an approach along the lines of the 'political questions doctrine' invoked by the Supreme Court of the USA". This illusive invitation is unaccompanied by any explanation why our judiciary should take such an exceedingly fluid doctrine as this in line with the USA. Also, by urging to apply this doctrine to any "Amendment", they seem to pursue the establishment of constitutional taqlid. The so-called 'political question doctrine', a truly American invention, implies that some issues are inherently unjusticiable for their political/policy nature. But the American constitutional scholarship invented this doctrine allegedly to perpetuate racial injustice of that society by barring the courts entering the legal (not political) regime that was injusticious to the minority. Since then the doctrine has been dis-applied even in the USA (see, e.g., Baker v Carr 369 US 186 (1962), disapproving a legislative attempt to segregate racial minority voters into different voting districts) and contemporary scholars such as Louis Henkin ("Is there a 'political question' doctrine?", 1976 Yale L. J. 597) question its continued necessity there. Moreover, a sharp dividing line between political and legal issues is practicably incapable of being drawn, and the Western scholarship provides no device for that. In reality, even a strictly political issue can also be legal/constitutional.
My argument, basically, is that the Court should avoid the trap of 'political question doctrine', which it has already beautifully avoided in the Parliament Boycott case (advisory opinion, 1995). I am not proposing that there is nothing like political questions. Let the Court decide which they are in reference to over-all societal circumstances, and not "along the lines" with the US Supreme Court. It is jurisprudentially dangerous to induce it to permanently adopt such a doctrine, as it would then become permanently disempowered to deal with peculiarly Bangladeshi (constitutional) issues such as, e.g., legality of martial law regimes/regulations. Rather, the existing socio-political realities require the judiciary to adopt and evolve an active and operational jurisprudence of its own to help 'we the people' gain the promised constitutional democracy. In the Indian context, in 1976, the famous Justice Krishna Iyer underscored the need to get rid of "subtle bondage" with "alien legal thought" to craft an indigenous jurisprudence for his country. As the above analysis evidences, this need is even more acute in our legal and jurisprudential culture.
The author is an Assistant Professor at the Department of Law, University of Chittagong, and a PhD researcher in comparative constitutionalism, University of London.