A Rebuttal to Rumi Ahmed’s blog posts on the Fifth Amendment Case

Rumi Ahmed is a Bangladesh-American blogger well known for his thoughtful and erudite posts on Bangladeshi politics. As someone who straddles the line between being an outsider and a native, he is able to both dispassionately and insightfully dissect contemporary issues. However, after reading two of his posts on the 5th Amendment case that he published in 2010, I feel that a rebuttal should be offered as he raises several contentious points. I’ll address his comments on the High Court Division judgment first followed by the Appellate Division judgment.

In his post, Ahmed first explains the importance of the Bangladeshi Constitution as well as the meaning and significance of Judicial Review. The first argument he makes is regarding whether the judicial system should overturn the martial law proclamations and orders of the 1970s. He states: “It is only appropriate that another parliament, maybe the current one, pass another amendment expressly rejecting these orders. What was done by parliament is thus fittingly undone by parliament.” Such a sentiment is hard to argue with, especially if expressed in terms where parliament is seen as the embodiment of the will of the people. No court in the country has the power to overturn the Constitution or its amendments; such power only resides with a government that has a 2/3rd parliamentary majority. The incumbent party has just such a majority and they performed such a ‘rejection’ by forming a Constitutional committee on the matter, taking on the court’s suggestions – after all, without being able to exercise section 142 of the Constitution, the court’s repealing of martial law instruments only amount to suggestions – and scrapping portions of the 5th Amendment.

Ahmed then goes on to personally criticize Justice Khairul Haque. Without going into personal barbs, the author writes: “Justice Khairul Haque is ill-advised to second guess the reason behind a constitutional amendment.” This, along with the assertion that “the will of people being thwarted by six unelected government servants” is misguided as the Constitution, the supreme law of Bangladesh, vests the powers of (constitutional) judicial review in the judiciary. It is almost ironic that the issue of being ‘unelected’ is being raised here as the judgment primarily deals with legislation that was instituted by regimes that came to power through coups.  (I am aware that the martial law proclamations, orders and ordinances between 1975 and 1979 were retrospectively ratified by Bangladesh’s Second Parliament but the genesis of this ratifying act and indeed that Parliament itself is open to question.)  It is arguable that such balancing powers are necessary in a country like Bangladesh as it has been subject to numerous military usurpations over the years.

Furthermore, Ahmed contends that simply put the preamble of the Constitution “is not law”. He raises an issue debated by many constitutional scholars about whether such text is a part of the substantive body of the Constitution or simply an ancillary, explanatory text. He would find support for his contention from Barrister Saqeb Mahbub, who in his Financial Express article Unravelling the “basic structure” of the Constitution expressed reservations about the insertion of such a structure into Bangladeshi jurisprudence and whether provision for such a structure was made in the Constitution. In simple terms, this theory espouses that there are sections of a Constitution that are fundamental to its nature and can’t be derogated from by transient majorities. To ensure that such derogations do not happen, the Courts assume the power to declare that a Parliamentary Act or Instrument is ultra vires and incompatible with the Constitution. As NUJS-Kolkata Professor, S. Krishnaswamy notes: “review on the basis of basic structure provides a sound constitutional basis for the judicial review of constitutional amendments because it does not rely on the particular phrasing of a single provision of the constitution thereby avoiding the possibility of the Parliament amending such provisions of the Constitution to oust judicial review.”

On the other hand, the chief criticism directed at the usage of the ‘basic structure’ when conducting a constitutional judicial review is that it is a form of strident judicial activism and the usurpation of democratic, Parliamentary powers. Just such a criticism is made by Rumi Ahmed but by doing so, he fundamentally misunderstands the nature of governance in Bangladesh. If someone opens any constitutional law text on Bangladesh, it will quickly become evident that unlike in the UK, Parliament is not supreme in Bangladesh – the Constitution is. In turn, judges are not mere ‘servants’ of the law (or lions beneath the throne as English judges have been described) but an independent entity with a primary responsibility to upholding the Constitution.

It is unsurprising that such a doctrine has largely developed in the Indian subcontinent, given the nature of some of the majorities and regimes that have come to power since 1947. In opposition to Rumi Ahmed and Saqeb Mahbub’s contentions, I submit that a basic structure is almost never explicitly set out in any nation’s Constitution and drawing out such fundamental principles and using it as a basis for constitutional judicial review is an accepted, though admittedly still controversial, form of legal doctrine.  Looking at Indian jurisprudence, as we so often do in Bangladeshi courts, we discover the ‘basic structure doctrine’ is a theory that has gained credence in India over the past five decades. But even without going so far afield, we can find the doctrine being positively used in the Dhaka High Court itself in 1963. In Abdul Haque v Fazlul Quader Chowdhury PLD 1963 Dac.669, the court held:-

“…franchise and form of government are fundamental features of a Constitution and the power conferred upon the Presidency by the constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution.” (Fazlul Quader Chowdhury v. Abdul Haque PLD 1963 SC 486)

As can be seen from the quote above, the Court exercised the basic structure doctrine to curb absolute Presidential powers when the President sought to exercise his executive power to ‘remove (legal) difficulties’.  While Bangladesh has been able to gain independence from Pakistan since that judgment, it has still labored under autocratic regimes and Parliaments with near-autocratic powers. This has allowed for a disproportionate number of amendments to the Constitution within four decades and raises the question whether the two-third majority stipulated in Article 142 is sufficiently stringent to prevent continuous constitutional re-writing.

Clearly the two-third majority threshold is not high enough. Though Saqeb Mahbub’s suggestion of referring decisions affecting ‘fundamental features’ to a public, nation-wide referendum sounds favorable it is not feasible at the present time. Therefore, for the time being, the basic structure doctrine remains a necessary tool for the courts. I’m for judicial activism in such a matter as it renews faith in a system that has often been hijacked by extra-constitutional means & military maneuvering. What I do have issue with is the ‘doctrine of condonation’, mentioned in the Supreme Court judgment, where the court assumes the power to actively determine which fundamental features and/or which parts of an amendment to retain in the Constitution out of ‘necessity’. This is a clear abrogation of the separation of powers and I am of the opinion that the court should do no more than recommend to Parliament which provisions should be condoned.

While it is quite popular to say that the form of judicial activism exhibited in the Fifth Amendment case is detrimental to the ‘true will of the people’ it is doubtful whether the will of the people vacillates so extremely every five years. The basic structure doctrine, one of the key arguments used by the HC and SC Judges, provides a measure of stability that is essential for any fledgling democracy. As the eminent legal academic Upendra Baxi once wrote: “The Power to change the Constitution cannot be permitted to become the power to destroy it” (U. Baxi, “Some Reflections on the Nature of Constituent Power in Indian Constitution: Trends and Issues, R. Dhavan and A. Jacob (Eds) (Tripathi: Bombay, 1978)  p.122)



Tips for Advocacy (Part 1)

Throughout law school and the BPTC, you will undoubtedly receive a lot of advice about advocacy. You’ll see advocacy demonstrations and will be lectured on the topic by master/mistresses of the moot, mooting coaches and guest lawyers and judges. If you’re especially keen, you’ll probably read books on mooting and advocacy such as The Devil’s Advocate The Art of the Advocate or How to Moot: A Student Guide to Mooting. Through some of my following posts I will try to share some of the advice and tips that I have received over the past four years.

The tips that I have provided below are from an autobiography that I picked up from an antique/second-hand booksellers in Coventry during the summer of 2011 after graduating from University. It’s titled “Law and Life” by G Roberts KC OBE and was published in 1964.  It details the life of one of the UK’s great Barristers, who went so far as to represent Great Britain at the Nuremberg Trials. In his memoirs, Roberts KC speaks of his long experience as a Barrister and provides many useful tips for budding lawyers.

His tips on advocacy may seem obvious but are easy to forget or overlook:

  1. Be Prepared – even on obscure facts/points of law
  2. Be Audible – Strong, Clear Voice
  3. Open with Care – In his opinion, burglary, housebreaking cases should be opened in about 3 sentences. The jury want to hear witnesses in such cases. If the case is regarding fraud, dishonest prospectuses, share-pushing, then a detailed opening is required to show how documents bear out submissions.
  4. Beware the disastrous question – A single misguided or inappropriate question can lose the case for the unfortunate client. Speak slowly and think carefully before asking questions.
  5.  Leave Well Alone – A case can be lost when the advocate tries to “rub in” a good point already made. Such an issue can arise where, for instance, a favorable point has been made by a potentially hostile witness and you try to hammer the point too much. Its full effect may be diluted.
  6. Be Impersonal – Roberts KC amusingly said that an advocate should never talk about their own health in court. By this he meant that while in court, a Barrister should shed his personal skin and assume the role of professional counsel, thereby acting as the best advocate possible for their client.

In sum, he quoted Lord Somervell of Harrow and said “that the object of the advocate should be to persuade the court that his client has the best case though unfortunately not the best advocate”.

GD Roberts KC OBE at his desk
© IWM (Art.IWM ART LD 5862)


Back in January 2011, two of my course-mates and I represented Warwick University at an International Criminal Law Moot in New Delhi. The following is our slightly tongue-in-cheek report about the Moot and I hope it is seen to be both amusing and illuminating of the kinds of opportunities available to mooters:

“For the purposes of the mooting competition we had to prepare two Memorials outlining our arguments, one for the Appellants and the other for the Respondents, and had to send it to New Delhi to be marked an entire month before the competition began. It took weeks of research, assistance from Warwick Law Professors and an International Criminal Law Barrister as well as considerable quantities of apples and red bull to complete our Memorials in time for the December 10 deadline. We thought that a harrowing week of all-nighters before the deadline would be the worst of it; little did we know about the Indian visa application process.

After hours of queuing and after retaking a number of passport photos, we managed to secure our visas and we excitedly waited for the 12th of January – the date of our departure. We boarded the plane with thinly-veiled pessimism and it was a feeling that was reinforced after being picked by the very hospitable students of the Campus Law Centre Delhi as they casually remarked that due to the exceptionally high standard of mooting at the competition, we should just “enjoy our holiday”. They reminded us that in the previous year’s competition Cambridge did not even make the Quarter-Finals and became grievously ill in the process. So brimming with confidence, we travelled across Delhi to our accommodation at the International Guest House within the campus of Delhi University.

On the day of registration, we were warmly welcomed to the University by one of the patrons of the moot, Mr. Siddharth Luthra and were able to witness an impressive opening ceremony at the Campus Law Centre. This included memorable speeches by two Indian Supreme Court Judges (Justices Singhvi and Ganguly) and renowned Indian legal academics. The ceremony was also our first opportunity to meet the other competitors. We were immediately intimidated by the size of their moot bundles. While ours was 25 pages, their bundles ran into several volumes and unlike our jet-lagged selves, they seemed very focused. We were fortunate enough to meet the organisers, the judges and many other legal figures in the High Tea that followed the opening ceremony. We were impressed by the standard of organisation and the food that was provided at every break.

We went through the two preliminary rounds of the competition the following day and were constantly challenged by the high quality of judging, where they persistently interrogated us throughout our speeches. It was interesting to note how our style of mooting differs to those practised in other parts of the world. In England we are told to be very formal and reserved while the style in countries like India and the US seem to be much more emotive and adversarial.  Nonetheless, despite the high standard of competition, we were informed over High Tea that we had successfully defeated the first two teams and had qualified for the quarter-finals. We were also very pleased to hear that we had been awarded the second best memorial out of the sixty teams enrolled.

We then narrowly managed to beat the quarter-final team, whose institution had won the competition in the previous instalment of the competition. We were very impressed by the quality of the opposition and how thoroughly they had researched each and every aspect of the moot. Late in the evening over dinner, there was a dramatic pause and the convenor of the moot announced the four teams that had qualified for the semi-finals and C1, our team number was one of them.

With a mixture of euphoria and nervous apprehension, we diligently prepared our extended speeches for the semi-finals in our hostel room. The next day when the early-morning mist was still lying heavy over the city and marathon runners were doing laps around the campus, we left for the venue of the semi-finals: the prestigious Indian Habitat Centre.  We were slotted against George Washington University Law School and had already heard of their formidable reputation. The moot began with judges from the Indian High Court firing questions at counsel on both sides regarding nuanced areas of International Criminal Law and judicial procedure in international courts. Unfortunately, we were narrowly beaten by the American team as they believed our style was too restrained compared to their standards. We were awarded third place overall and were given a large set of practitioners texts as a prize from another Supreme Court Judge (Justice Reddy).  We were extremely proud of getting that far in the competition, amongst the very dedicated and prepared students from around the world, and relished our opportunity to experience the culture of India.”

Warwick Team at KK Luthra Moot
Addressing an Indian HC Judge, Habitat Centre, New Delhi



Organising a Mooting Competition

Organising a mooting competition is fairly straightforward and law students should endeavour to organise one themselves, if their law school does not have an intra-University competition already. Oxford University Press recommends the following steps:

  1. Establish the rules – Consider the rules which should be adopted for the competition, including the order in which the mooters are to speak, the timing of the moot speeches, whether or not the clock will be stopped during any questioning of the mooters by the judge, and whether the appellant team should be permitted a right of reply.
  2. Select teams and opponents – The names of all those interested in entering the competition should be listed and divided initially (insofar as possible) into teams of four. Each set of four mooters will argue together in a moot. Bear in mind the status of each mooter, that is their particular year of study and whether or not they have studied or omitted particular legal subjects. Where possible, it is best to choose opponents who are in the same year of study and who will have studied similar options.
  3. Set the moot problem – It is usual for the moot problem set to be concerned solely with a particular point of law. The facts are assumed to be as recorded in the moot problem and the legal issues on appeal should be clearly set out. The moot court will generally (though not always) be the Court of Appeal or the House of Lords. The mooters should be told clearly for whom they will argue and whether they are leading or junior counsel. [An archive of recent problems used in the OUP & BPP National Mooting Competition can be found here].
  4. Set a date, time and venue, and appoint a judge and clerk – The moot judge may be an academic, postgraduate student, or member of the legal profession as the particular competition requires. The judge should be sent a copy of the moot problem and competition rules in advance of the moot. A volunteer should be found to clerk the moot. The clerk will have responsibility for the timing of the moot and also for providing the judge with copies of the authorities (eg law reports) when necessary.
  5. Exchange of legal authorities – The usual rules of mooting require that these authorities be exchanged in advance of the moot. This means that each team should supply for the judge and the opposing team a full list of all the legal authorities upon which they intend to rely on in the course of their argument.

I glossed over preparing for a moot when discussing its contaminant benefits in the post below. The nitty gritty details of preparing for a moot and presenting it in a mock court is beyond the scope of this blog, so I would recommend reading John Snape and Gary Watt’s How to Moot: A Student Guide to Mooting 2e as well as visiting http://www.mootingnet.org.uk/first.html.

To conclude, a video on the peripheral benefits of mooting:


Gaining Mooting Experience

While studying law, whether in the UK itself or through the University of London external programme, the prospect of undertaking additional activities involving law seems unappetising. Most people would prefer to do something diverting during the little free time that they have. However, in my opinion, ever aspiring Barrister should find time to get involved with mooting.

As Oxford University Press succinctly puts it “mooting is the oral presentation of a legal issue or problem against an opposing counsel and before a judge.” More than debating or Model United Nations, it is essential for the aspiring advocate as “it is perhaps the closest experience that a student can have whilst at university to appearing in court.” The beneficial qualities of mooting can be summarised as follows:

  1. Confidence in public speaking: While at University, even if one studies Law, it is possible to graduate without doing much public speaking: sitting quietly at the back of the class, not speaking in seminars till spoken to, etc. In large Universities, it is often the case that a student has to go out of their way to get public-speaking experience, either by joining a relevant society/club or taking on a leadership role. However, aspiring Barristers are expected to go out of their way to gain such experience, as it allows them to begin honing their public-speaking abilities from a young age. Mooting provides a more intense experience that debating or Model United Nations as it requires participants to make persuasive submissions using legal arguments and documents, under the stern gaze of judges, who are often practitioners themselves. The length of time one is allocated to speak in a moot is also longer than the time granted to speakers in most debates and MUNs and that time has to be marshalled carefully, as a speaker has to complete their submissions while also responding to the interjections of the judge(s). Whether a participant wins or loses a moot, it is inevitable that from the heat of such a crucible, the participant emerges as a better advocate, aware of their weaknesses and confident about their strengths.
  2. Enhanced research skills: It is possible that during a Law degree, a student may snore and day-dream their way through Tort, Property and Criminal Law. While revision guides and classmates’ notes may have helped students pass their end-of-year exams, similar short-cut methods are not available for mooters. Preparing for a moot requires participants to become thoroughly familiar with the law relevant to the dispute, which often means trawling through practitioners’ and students’ textbooks and reams of case law. Extensive research is absolutely crucial as it contributes to one’s understanding of the dispute; persuasiveness of their submissions; strength of their skeleton argument; anticipation of an opponent’s arguments and response to judge’s questions. Judges, in particular, will ask awkward legal questions to test an advocate’s knowledge of the area of law in dispute and so it is necessary to be well prepared. Especially at the latter stages of a mooting competition, where all the mooters are adept advocates, the quality of research can separate the winners from those who come second best. Additionally, doing such research in the library or on Lexis Nexis and Westlaw obviously spills over into one’s academics – so the benefits are not merely extra-curricular!
  3. Learning Law: I don’t know about most people but first year criminal law is a bit of a blur for me. What I do remember though is that we studied provocation in great detail, largely because it was about to be abolished as a defence; which meant that it was a topic of academic interest but of little practical use. I can clearly recall the relevant case law related to this topic and its usage as a defence, not because I wrote an assessment on it but because my first moot’s problem question was based on it. Spending hours reading cases like Ahluwalia, Thornton, etc. meant that the case names would be seared into my memory; vivid in my mind even after four years. To prepare for the moot, I also read a number of journal articles, so that I could learn how provocation was used as a defence is English and Commonwealth jurisdictions. Thus, I learned about criminal law in a much deeper way than if I had just studied for it in class. The competitive element also adds interest and makes the blandest of legal subjects seem more palatable and interesting. Furthermore, once you have done a number of moots on a variety of topics, you may discover that you enjoy a particular type of law. This may be invaluable to you in the future, when you come to decide what you would like to specialise in during your Master’s or what kind of law you would like to practise.
  4. Improved career prospects: In an increasingly demanding job market, substantial mooting experience is highly desirable on one’s CV and in some cases is required. Winning a moot or two, or even getting to the knock out stages of large moots, adds considerable weight to your resume. Additionally, when appearing for job interviews, mooting topics provide you with something to talk about with your prospective employer as you are likely to be able to discuss these legal issues confidently, without feeling that you are making a fool of yourself! Having said that, I would advise exercising caution, as it may very well be that the Barrister (or Solicitor) you are speaking to was involved in one of the key cases related to that legal topic.
  5. Networking: A person’s first moot is usually an intra-University competition; a moot involving one’s Law School peers. Following the first few moots and the first few victories, participants may move into bigger regional, national and international moots. As you would imagine, the participants of such moots are among the best students of their respective Universities and the judges are from the actual judiciary. To provide some examples, I participated in the Thomas A. Finlay Moot in Dublin during my 2nd year and the judges there included law professors and judges of the Irish High Court and Supreme Court. Similarly, a Mooting competition I participated in in Delhi was adjudicated by members of the Indian High Court and Supreme Court Bench and my alma mater Warwick’s own competition final is often judged by a Justice of the UK Supreme Court. This provides an invaluable opportunity for participants to mingle, network and impress respected members of the legal community and build contacts for the future. It is entirely possible that the person who judges your moot one day may be the same person who interviews you for a job on another day!
  6. Opportunities to travel: This is a minor point compared to the above. If one prospers in mooting competitions, very soon doors open up for participation in grander, international competitions. The two biggest international competitions are Jessup’s International Law Moot and VIS International Commercial Arbitration Moot but there are a number of others throughout the world. While it can be quite expensive to participate in these moots, it is often possible to find sponsors for such prestigious events. Therefore, along with the mooting and networking experience mentioned above, one gets to visit a different country and culture.

I should clarify that mooting is not a substitute for legal experience (i.e. para-legal work, mini-pupillages, marshalling) and actual advocacy (i.e. appearing in front of an Employment Tribunal). In addition to accumulating mooting experience throughout University and on the Bar course, one should seek to gain the above experiences as well.

My next post will be on how students can arrange their own moot.

I leave you with a video introducing Mooting, produced by Bond University in Australia