Confusion and Controversy over Reinstitution of the "1972" Constitution

The recent judgement on the Fifth Amendment is not as straightforward as it seems, argues ASIF NAZRUL.

The Fifth Amendment case is a judicial annulment of both Fourth and Fifth Amendment of the Constitution of Bangladesh. In a sense, it has more emphatically negated the Fourth Amendment, as wherever the apex court has found any alteration of Fourth Amendment by Fifth Amendment, it has condoned the provisions of the latter amendment for the sake of public interest and state necessity. But no such condonation is made with regard to those provisions of the Fifth Amendment which have substituted or amended the provisions of the 1972 Constitution. The Supreme Court has observed that such provisions are void ab initio and not suitable for condonation as they have attacked the basic structure of the Constitution. It has therefore instructed reinstitution of the provisions of the 1972 Constitution altered by the Fifth Amendment.

Things are, however, not as simple as have been recapitulated above. The Fifth Amendment judgment has given rise to some confusion as well as controversy. These have perhaps made the amended provisions unsuitable for straightforward reinstitution or rendered the guidelines for such reinstitution imprecise and imperfect.

First: the apex court has not invalidated each and every provision of the Fifth Amendment which is inconsistent with the 1972 Constitution. For example, the authority of investigating complaints against the judges of the Supreme Court was granted to the Supreme Judicial Council (a body comprising the Chief Justice and two other most senior judges of the apex court) under the Fifth Amendment, although this authority belonged to the parliament under the 1972 Constitution. In this case, the Supreme Court has retained the Supreme Judicial Council which means going back to the 1972 Constitution would not apply to the concerning provisions enunciated in Article 96 of the Constitution. As this is a fundamental premise of the Fifth Amendment judgment, this is a serious departure from that premise, the reason for which has not been convincingly explained in the judgment.

Second: The Supreme Court, in the Fifth Amendment judgment, has not only "picked and chosen" the provisions to be retained or deleted from the Constitution, it has also placed the constitutional provisions in contradiction with each other on at least two accounts. It has retained Article 6 as modified by the Fifth Amendment according to which our nationality is Bangladeshi while the reinstated Article 9 of the 1972 Constitution has described us as Bangalee nation. Again, the reinstated Article 8 described secularism as one of the fundamental principles of state policy and Article 12 defines secularism, as a policy which, among other things, requires elimination of "granting by the State of political status in favour of any religion." These two Articles, therefore, should not and cannot co-exist with Article 2A, which has unambiguously granted such political status to Islam by declaring it as the state religion. As long as Article 2A remains in the Constitution, it is doubtful whether automatic reinstitution of Article 8 and 12 of the 1972 Constitution is logical or sensible.

Third: The Fifth Amendment judgment is misleading with regard to Article 142 of the Constitution. The High Court has denied condonation of the changes in this article along with preamble and some other articles (Art 6, 8, 9, 10, 12, 38 and clause 1A, 1B, 1C of Article 142) of the Constitution and declared that these articles must "remain as it was in the original constitution." However, Article 142, which the High Court has described in the Fifth Amendment judgment as an Article of the original Constitution is not actually so; rather, it is an amended version done by the second amendment in 1973. The difference between these two versions is not at all trivial. Original Article 142, along with Article 26, means the state cannot curtail or circumscribe the provisions of the Constitution concerning fundamental rights of the citizens by amending the Constitution. In contrast, Article 142, as altered by the second amendment, denotes that this could be done by constitutional amendment! The question might be raised as to which version of Article 142 the High Court Division of the Supreme Court has sought to reinstate in the Constitution. The Appellate Division as well has not yet addressed this lacuna, although it has been pointed out earlier in the news media.

The Supreme Court judgment therefore lacks precision and clarity. Its translation into the Constitution requires "legislative" analysis which cannot be done by the Law Ministry being a part of the executive branch of the government. As reported in the daily Prothom Alo on October 11, 2010, the way the Law Ministry has explained the ramifications of the judgment and the manner in which the Law Commission has endorsed it has already been found erroneous. For example, the recent Law Ministry report on interpretation of the Fifth Amendment judgment has suggested the revival of Article 44 and 102(1) in the light of the Fourth Amendment, not according to the 1972 Constitution. As the Prothom Alo report commented, that would mean destroying the very authority of the High Court itself by dint of which it has given the Fifth Amendment judgment! Surely, the High Court could be the last institution which would agree with such erroneous interpretation of its own judgment. Further, the said report has reportedly suggested that the amendment of Article 116 was declared illegal by the High Court Division, but was approved by the Appellate Division. The reality is, the Appellate Division has not approved the amended 116, and rather it has urged the parliament to restore 116 of the original Constitution. Such departure by the Law Ministry, which is now reprinting the Constitution for implementing the Fifth Amendment judgment, from the actual dictates of the very judgment would thus lead to confusion in the minds of the people and chaos in the country. Given the presence of the Parliamentary Committee, the rationale of assigning the Law Ministry with this task is also debatable.

Some of us, however, have different views. While justifying reprint of the Constitution in the light of the Fifth Amendment judgment, they invariably cite the example of the Eighth Amendment case. But we have to take into account that the Eighth Amendment case focused on a very narrow area and decided the fate of an amendment of a single article of the Constitution. It had declared the amendment of Article 100 invalid and ordered restoration of the original version of Article 100 in the Constitution. The rest was a clerical job capable of being performed by a computer operator by deleting the paragraphs inserted in Article 100 by the Eighth Amendment. In comparison, the Fifth Amendment has touched upon dozens of articles and has declared reinstitution of original articles, some of which contradict existing articles and at least one of which does not have any clear meaning. It has also condoned amended articles, one or two of which are inconsistent even with the original Constitution! Even the logic of such condonation is not always coherent in the text of the judgment. The Appellate Division has observed that condonation should be done "in order to avert the resultant evil of illegal legislations;" although in condoning Article 44 substituted "illegally" by the Martial Law Proclamation, it also observed that the substitution was done to "advance rule of law and the welfare of the people!"

Replication and reflection of the Fifth Amendment judgment in the Constitution therefore is not at all as straightforward as the Eighth Amendment judgment. It requires application of a legislative mind, which belongs only to the legislature.

The apex court's judgment was, in a way, aware of the role of legislature upon a number of important issues, including maintaining independence of the judiciary. It has refrained from restoring Article 115 of the original Constitution which required consultation with the Supreme Court in appointing judges of the subordinate judiciary and also Article 116 which empowered the Supreme Court to deal with posting, promotion and grant of leave of those judges. Among these two articles, as Article 116 was amended by both Fourth and Fifth Amendment, the Court had the scope to intervene and restore this article. The court rather stated that "it is our earnest hope that Article 115 and 116 will be restored to their original position by the Parliament as soon as possible."

In an ideal world, the restoration of all other provisions of 1972 as well should have been done by the parliament; the Supreme Court's judgment could have been taken into account as instructions and guidelines for discharging that responsibility and the controversy would been avoided in that way. But the truth is that we do not live in an ideal world and the controversy over the Fifth Amendment judgment will continue for many years.

Asif Nazrul is Professor of Law, University of Dhaka.