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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 189
October 09, 2010

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Amending the wounds

Imtiaz Moinul Islam

The Honorable Supreme Court recently passed a revolutionary judgment dismissing the appeal and upholding the High Court's decision in the 5th amendment case with some modifications. In the judgment, the honorable Judges seem to refrain from emphasizing on the aspect that we, the young generation, should be acquainted and educated with the true history of our national struggle. I embarked upon this enlightening journey and had myself introduced to historic judgments dating from the 16th century kings' reign in England up to modern day revolutionary deliberations and I urge my fellow young lawyers to go through the judgment for enrichment of knowledge. I have gathered this with my limited knowledge that the Honorable Supreme Court has declared the 5th and later in another judgment, the 7th amendment illegal but as the Constitution can only be amended by the Parliament hence soon the Parliament is going to amend the Constitution following the guidelines prescribed in the Honorable Supreme Court's judgment. It has been contemplated that illegally amending the Constitution by 5th and 7th amendments and declaring marshal laws should be termed as criminal offences against the state however Part VI of the Penal Code enumerating offences against the state is inadequate for the punishment of past usurpers and new laws need be enacted and amalgamated with amendments of existing laws. New laws or amended laws will safeguard against any future catastrophe however Article 35 (1) of the Constitution acts as a bar to such initiatives being effective for past usurpers. A few things are challenging my legal rationality and I humbly wish to bring those to notice of my respected senior veteran lawyers for their kind perusal and further guidance.

As we know, every criminal offence is consisted of two elements; the actus reus (Latin for guilt act) and the mens rea (Latin for guilty mind). the general wave of opinion envisages that the Supreme Court do not have the authority to strike out the 5th and 7th amendments by amending the Constitution itself and indeed it has not done so. The Supreme Court has merely declared that the said amendments were contrary to the Constitution and they should be void and the perpetrators should be punished. Thus the practical position is now that the illegal amendments are continuing with full effect and it is only when the Parliament validly re-amends those amendments or strike them out exactly then the crimes committed by 5th and 7th amendments would stop and the actus reus of those result crimes would be completed. The Honorable Supreme Court have also condoned some of the Articles inserted by marshal law proclamations to avoid anomaly and prevent chaos by applying the doctrine of necessity however the Honorable Judges clearly stated in page 171 of the judgment, “a Court of law cannot extend benefit to the perpetrators of illegalities by declaring it legitimate”. We have to succumb to the fact that even if some Articles are useful and thus condoned but their insertion were by wrong methods hence should be deemed as crimes and the actus reus for which are still continuing and it will be so until the Parliament re-amends the said amendments following Article 142 of the Constitution never mind along the same wordings. The Supreme Court opined in this connection in the 5th amendment judgment in page 92, “Further, if the Constitution is wronged, it is a grave offence of unfathomed enormity committed against each and every citizen of the Republic. It is a continuing and recurring wrong committed against the republic itself.”

In my humble belief, this provides the Parliament with a tremendous opportunity to punish the perpetrators if it so wishes and safely avoid attracting Article 35 of the Constitution. Article 35 provides: “ No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence.”

The Article incorporates the ideas of the “ex post facto laws” which makes that criminal which was not so at the time the act was performed and “the time of commission of the act” denoting the actus reus of an offence. Not all acts forming the basis of an actus reus are single, unconnected events. The law will treat the actus reus as having started with the initial act (said amendments) and ended with the Parliament striking them out i.e. the sequence of events is so inevitably linked that it can all be viewed as a single transaction.

So long as the requisite mens rea is formed before the sequence begins or during the sequence (and before it ends), the defendant will be liable. For example, in Fagan v. MPC (1969) 1 QB 439, a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he drove the car on to the policeman's foot and he refused to move it. The Court held that this could constitute a common assault. This actus reus was a continuing state of affairs for so long as the car rested on the officer's foot and the mens rea was formed before the car was removed. Similarly as long as the amendments are not being struck out they are like the car, an illegal burden on the nation's chest and on the Constitution; they constitute a continuous state of affairs for the actus reus of the offence of violating the Constitution which can be taken to be a single transaction until the said amendments will be re-amended.

If declaring marshal law/amending the Constitution without following Article 142 becomes unlawful and punishable offences then the every amendment made by 5th and 7th Amendments will become continuing unlawful acts forming the actus reus and when the Parliament will re-amend them/struck them out at that time the actus reus would be completed.

If the Parliament enacts precise statute(s) focusing only to punish such crimes and also make necessary amendments in the Penal Code and bring it into force before they re-amend/strike out the said amendments then what will it have are valid instruments to try such offences as the actus reus would continue to be subsisting until the re-amendment/strike out.

The case of Samuels v. McCurdy, 267 US 188 established the principal that a law does not come with the definition of ex post facto law by providing punishment or penalty for the continued maintenance of certain conditions which, prior to enactment of the law, were lawful or there was no law making it an offence. Here continued effect of the illegal amendments is still subsisting and it will continue to be so until the exact re-amendments/strike outs will be made according to the Supreme Court's suggestions.

Before doing the amendments/strike outs, necessary laws might as well be passed if punishing the perpetrators is desired. With my limited knowledge, I feel that the Parliament should first pass/amend necessary laws and then shun out the said amendments and make necessary adjustments as directed by the Honorable Supreme Court. The reasoning behind this spawns from the doctrines of id quod alias non est licitum, necessitas licitum facit (that which otherwise is not lawful, necessity makes lawful), salus populi suprema lex (safety of the people is supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) to exemplify that be you ever so high, the law is above you so that no more usurpers can assume the authority to play with the interest of the state and its people and that no crime, no matter how smartly committed, goes unpunished.

It is my earnest hope that my novice efforts bear some substance and appeal to the pioneer legal minds who are constantly working hard to deliver us the long cherished “Shonar Bangla” dreamt by the father of the nation but then mythologized for us new generation by some anarchist.


The writer is a Barrister-at-Law.


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