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)



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