The Apex Court's Judgment in 5th Amendment Case
New turn for basic structure and condonation
Barrister Md. Abdul Halim
THE judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has recently been upheld by the Appellate Division, the apex court of the country. The Appellate Division's judgment came on 2nd February, 2010 when it stated after six days of hearing that it would not grant the leave for full hearing; rather it would uphold the judgment of the High Court Division with some modifications and observations. With a gap of over 6 months the Appellate Division released the full text of its judgment on 27th July, 2010. Mr. Md. Tafazzul Islam, Chief Justice, as he was then, authored the judgment and other 5 judges approved it with no dissenting opinion on any law point. This write up attempts to highlight some points and concerns regarding modifications and observations by the apex court.
Modifications of the judgment of the High Court Division
The apex court has, by way of modification, expunged the following from the judgment of the High Court Division:
Article 44 and 102(1)
If the 5th amendment is struck down as has been done by the High Court Division, the provisions of Article 44 (enforcement of fundamental rights) and Article 102(1) (power of the High Court Division to enforce fundamental rights) as they stand today will have to be deleted and provisions inserted by the fourth amendment would revive which will give no right to citizens to move for enforcement of fundamental rights; nor will the High Court Division be in a position to give any direction to government regarding enforcement of fundamental rights. Admitting this, the Appellate Division has expunged the decision of the High Court Division and it retained the provisions inserted by the 5th amendment in both Articles for the interest of justice and rule of law. However, the apex court did not say anything about the actions of the High Court Division done by way of hearing of thousands of petitions under these two Articles and reliefs given thereof. It was essential for the court to condone all writ and other applications for enforcement of fundamental rights and all orders and judgments given by the High Court Division during the period between 15th August, 1975 and April 9, 1979.
The High Court Division did not condone provisions regarding nationalism as inserted in Article 6 as it emphatically held that provisions of nationalism as laid down in the original constitution (Bangalees) was a basic structure which could not be amended by any martial law; nor even by any Ac of parliament. However, the apex court has condoned the provisions of Bangladeshi nationalism inserted by the 5th amendment, although it did not say anything whether the concept of nationalism would be considered as a basic structure of the constitution or not.
Transitional and temporary provisions in Article 150
The High Court Division did not condone provisions regarding transitional and temporary provisions in Article 150 of the constitution. However, the apex court has condoned the provisions in Article 150 and the fourth schedule taking in view of the subsequent developments, although it did not extend any further reasoning behind such condonation.
Provision of Supreme Judicial Council in Article 96
The apex court has also expunged the decision of the High Court Division regarding the provisions of Supreme Judicial Council inserted by the 5th Amendment and retained this on the ground that this substituted provision by 5th amendment are more transparent procedure than that of the earlier ones and also safeguarding independence of judiciary.
Part VIA: Nationalist Party
If the 5th amendment is struck down, Part VIA of the Constitution under the heading “THE NATIONALIST PARTY” (Article 117A) inserted by fourth amendment would revive. The apex court, therefore, held that this Article 117A would be inconsistent with Articles 37, 38, 39 of the constitution. However, this provision has been deleted by the Proclamation dated 8th November, 1975. Accordingly this portion of the above Proclamation has been condoned in the judgment.
Provision of consultation for appointment of judges
In the original constitution there was provision of consultation with the Chief Justice while appointing judges in the High Court Division under Article 95. The words “after consultation with the Chief Justice” were deleted by the fourth amendment. This consultative provision was revived by the Second Proclamation (Seventh Amendment) Order. However, these words were again deleted by the Second Proclamation (Tenth Amendment) Order, 1977. The Appellate Division held that accordingly this Article 95 as amended by the Second Proclamation Order No. IV of 1976 could not be legally condoned by the High Court Division as it was not in force on the day the 5th amendment was passed. Moreover, a repealed provision cannot be legally retained and/or validated by the court. So Article 95 will remain as it existed on August 15, 1975.
The principle of condonation
Can the High Court Division exercise 'legislative power' by way of condonation? The Appellate Division stated that to avoid anomaly and also preserve continuity, the courts have to pass consequential orders. It seems that the apex court has dealt with the issue very quickly and without discussing details of limits of judicial law making by way of condonation. Legislative powers and consequential reliefs are not always the same thing. Many legal issues are involved with the terms 'legislative power' and 'judicial law making'. There must be some distinctive features and barriers between the two which has not been discussed elaborately by the court. Although both the both the courts have borrowed the concept of condonation from the decision in Asma Jilany's case in Pakistan, the apex court should have discussed the limits and extent of this doctrine so that it may work as a guide for future judicial coherent dispensation.
Recommendations by the Apex Court
Apart from the above expunge in the form of modifications the Appellate Division has made the following two recommendations for the law makers:
Independence and separation of judiciary
The Appellate Division held that the independence of judiciary will not be fully achieved unless Articles 115 and 116 of the Constitution are restored to their original position. Although Article 22 has been implemented to a great extent through the judgment in Masder Hossain case but until and unless the unamended Articles 115 and 116 of the Constitution are restored vesting the control of the subordinate judiciary in the Supreme Court, the separation of judiciary will remain a distant cry and a music of the distant drum. The court expressed its earnest hope that Articles 115 and 116 of the Constitution will be restored to their original position by the parliament as soon as possible.
No doubt this suggestion of the apex court is commendable although thoughts should be given seriously whether the provision of appointing District Judges from amongst advocates with 10 years standing should be revived or not as this will certainly bring political consideration into the appointment process in the lower judiciary. The present recruitment process through competitive examination apart from quota system is transparent and merit-oriented. Further, restoring Articles 115 and 116 to their original position will be conflicting with the decisions in Masder Hossain case and the principles of separation of judiciary since original Article 115 speaks of magistrates exercising judicial functions, president's interference in the magistracy etc.
Farewell to military takeover
The apex court has finally stated, 'Let us bid farewell to all kind of extra-constitutional adventure forever' and to this the apex court insisted parliament to make necessary law. However, one thing which the court did not mention is that extra-constitutional adventure or military take over is an unwanted chapter both in law and politics. The reasons for repeating this extra-constitutional adventure do not lie in law or judicial adjudication; they lie in the weaknesses of the political leadership of a country. We have seen that even after such type of milestone judgment by the apex court, extra-constitutional adventure was repeated in Pakistan. The realities is that if such type of judgments are pronounced during the continuance of martial law, there is danger for the judges and the courts so pronouncing; they will either be suspended or their jurisdiction will be restricted or the judges concerned will be removed from office by the new regime. Again, it is improbable that the judgment of the court would have made the slightest difference to the continuance of martial law, because the military authority does not hesitate to frustrate such judgments by issuing decrees or proclamation. For example, when the Lahore High Court of Pakistan in Malik Mir Hassan v. State declared the proclamation of martial law declared 25th March, 1969 illegal, the military authority issued the President's Jurisdiction of Courts (Removal of Doubts) Order, 1969 by which the courts were barred from questioning the exercise of powers by the Martial Law Authority and the decision in contravention of this would be deemed to be of no effect. Thus to bid farewell to extra-constitutional adventure our elected leaders must abide by their oath of office to protect and preserve the constitution so that their servant-type armed defenders do not have to think of replacing them. It is an undenying truth throughout the third world countries that military take over comes along the line of political instability followed by leadership weakness and when it takes over, it rarely cares for judicial adjudication.
An unresolved issue of basic structure
The High Court Division based its judgment on the plinth of the doctrine of basic structure. It specifically laid down that 'secularism', 'socialism' and 'nationalism' as embodied in the original constitution are basic structure which the parliament cannot change even with its plenary law making power. Although the apex court expunged some of the condonations done by the High Court Division, particularly on point of nationalism, it did not say anything about whether these three concepts which are basically in the nature of fundamental principles of state policy should be treated as basic structure or not. This will leave a tremendous leeway for the next generation judges in interpreting the constitution.
The writer is an advocate of the Supreme Court of Bangladesh.