Reprinting the 1972 Constitution!
Thursday, 21 October 2010
The state functions have, on a broad spectrum, three branches or avenues. These include: (i) Parliament: For enactment of laws i.e. legislative; (ii) Judiciary: For judiciary functions and interpretation of laws; and (iii) Executive: For executive functions and administration, in a nutshell.
Let us now reiterate here that there is no dearth of appreciation for the wisdom and spirit respectively of the Fifth Amendment Judgement of the Hon'ble High Court Division and that of the Hon'ble Appellate Division of the Supreme Court. But there should not be any stigma in having insight into the Judgement in order to highlight this brief for all and sundry at large specially the connoisseurs of laws.
Since the article is highly technical and legal and a large number of issues has also been condensed and crowded in a limited space, we would, therefore, apologise for any shortcomings at the very outset.
The Fifth Amendment Judgement came out on August 29, 2008 as a bye-product of Moon Cinema case by the Hon'ble High Court Division Bench of the Supreme Court. Upon appeal, the case travelled to the Hon'ble Appellate Division of the Supreme Court and not as a referral under the Article 106 of the Constitution.
The Hon'ble Appellate Division of the Supreme Court through its judgement of February 2010 made some remarkable observations obviously binding to the relevant judgement of the Hon'ble High Court Division. Of the observations, the following have been raised for quick comprehension.
(i) For sentimental attachment of public perception on historical background, a sidetracking has been adopted by the Hon'ble Appellate Division on the issue of insertion by the Fifth Amendment (by Shaheed Zia) of the words 'Bismillahir Rahmanir Rahim' at the 'Pre-Preamble'. It seems, however, that it has been condoned by the Hon'ble Appellate Division of the Supreme Court Should this 'Pre-Preamble' element be withdrawn, there may be a sprouting effect of public backlash at domino-theory scale.
(ii) Article 6 of the Constitution: Citizenship of Bangladesh as 'Bangalees' as was in 1972 Constitution was substituted by the Fifth Amendment but uncondoned in the judgement by the High Court Division has now been rightly condoned by the Appellate Division.
(iii) Findings and observations on Article 150 and IV Schedule of the Constitution made in the judgement of the High Court Division have been rationally and judiciously expunged by the Appellate Division in view of actions, inter aria, from 15/8/75 to 9/4/79 having been past and closed, and validation of acts that could have been done by a lawful government and so on and so forth. Moreover, revival of 1972 Constitution shall also put the original Art. 150 as before.
(iv) Article 95: Art. 95 of 1972 Constitution allows President to appoint Chief Justice (C.J) and that of other Judges in consultation with the C.J.
(a) 1975 (IV Amendment of the Constitution): President is to appoint C.J. and Other Judges. This is an alteration of Art. 95 of 1972 Constitution.
(b) 1976 (2nd proclamation order 1976): As in (a) above. This is a substitution of Art. 95 of the 1972 Constitution.
(c) 1977 (2nd proclamation order 1977): As in (b) above. This is a substitution of Art. 95 of the Constitution after the Fourth Amendment.
It is, thus, clear that there has never been any omission, deletion or repeal of the Article 95(1) but in effect 'altered' once and 'substituted' twice.
Since the judgement condoned provisions of the Fifth Amendment which only omitted/deleted various provisions of the Fourth Amendment and naturally and obviously did not condone provision of the Fifth Amendment that might have been incorporated by way of 'addition', 'alteration' or 'substitution' of any provision of the Fourth Amendment or that of the 1972 Constitution, hence this will in effect put back Article 95(1) as in the Fourth Amendment fully in operation.
Further, the judgement may either condone or uncondone provisions of the Fifth Amendment but should not make any attempt to go beyond the stipulations of the provisions of the Fifth Amendment i.e. if provision asks for 'change' or substitution, then such change or substitution has to be either condoned or uncondoned to that extent only.
Alteration or change of Article 95(1) from that of the 1972 Constitution and as incorporated in the Fourth Amendment enacted by Parliament may not be omitted by the said judgement as it will then be tantamount to an act beyond the scope of jurisdiction of the judiciary and hence ultra vires of the Constitutional stipulations for the judiciary.
The Appellate Division of the Supreme Court in its judgement has thus disapproved validation of Art. 95 as pronounced by the Fifth Amendment judgement of the High Court Division.
Furthermore, Art. 142 (I) (a) of 1972 Constitution reads as "Any provision thereof may be amended or repeal by Act of Parliament". It is, therefore, crystal clear that procedures for amendment or repeal of the constitutional provision need enactment of an Act by Parliament and no other means whether by way of a court verdict or otherwise shall be allowable.
It is painful to know that some of the learned experts have echoed that the issue at stake here is merely to validate those provisions of the 1972 Constitution after having been uncondoned those elements in the Fifth Amendment Judgement. The cat has now come out of the bag opening the Pandora's Box.
For examples, (i) since the Fourth Amendment of the Constitution was enacted by a valid Parliament and was repealed by the Fifth Amendment, how can the said repeal be condoned by the Fifth Amendment Judgement? The Fifth Amendment repealed the Chapter VI A (that led to formation of BAKSAL) incorporated by the Fourth Amendment and this act of repeal (uncondoned) by the Fifth Amendment has been condoned by the Fifth Amendment Judgement. In other words, a valid Act incorporated by the Fourth Amendment by Parliament was made invalid by the Fifth Amendment judgement i.e. a valid act of Parliament has been made invalid by the judgement, an absurdity of high magnitude. Rather than reprint this condonation by the Fifth Amendment Judgement, it needs, beyond all reasonable doubts an enactment by Parliament. Is it not ultra vires of the constitutional provisions? Shall it not put the cart before the horse? Will it not be tantamount to supremacy of the Supreme Court over Parliament?
(i) Will not reprinting of the 1972 Constitution rouse questions regarding third Amendment of the Constitution about transfer of Beruberi enclave, so on and so forth? Obviously question will come up for all other relevant issues implemented through subsequent amendments.
(ii) The Fifth Amendment Judgement by the High Court uncondoned Art.142 (1A), (1B) and (1C) and that have also been upheld by the judgement of the Appellate Division which at its 353 (2) (b) (of the judgement) has spelt out condonations of actions not derogatory to the rights of citizens. The 1972 Constitution under Art. 142 has mandated merely constitutional amendment bills to be passed by two thirds majority of the total number of members of Parliament. The Fifth Amendment of the Constitution strengthened Art. 142 through addition of Art. 142 (1A), (1B) and (1C) for holding referendum. Did it not give more power to the people so that Parliament without further references to the people shall not be able to amend certain important provisions of the Constitution? That is it shall not change the basic fabrics and characteristics of the Constitution.
Reprinting: What is legally and within the parameters of the Constitution right that needs to be done neat and clean. Should an enactment by Parliament be needed, let us so do it rather than take the resort of the court and avoid referendum.
Let us now visit down to earth scenario about reprinting the 1972 Constitution. Reprinting means printing the original document as it is or at best with minor and insignificant changes. For example, reprinting was made in 2006 for 1972 Constitution. But reprinting, as came out in the press, the Constitution after incorporation of the Eighth Amendment also made through similar arrangement should not have been cited as an example, as it ought to have been enacted by act of Parliament. Such example for reprinting to suit perhaps some current philosophy specially by learned experts may not speak good to enhance our constitutional process.
The opinion of the stalwarts of legality has been sharply divided as to whether to go back to 1972 Constitution to start with or take the existing Constitution (with till date amendments), in hand, and proceed through amendments to be incorporated in the Constitution by way of addition, alteration, substitution or repeal.
We guess the stalwarts are right in their own schools of thought.
The globe being round, one can reach one's destination almost through any direction. The question is as to how soon and at what cost.
The 1972 Constitution in its original form, under to-day's context, is unworkable. Contrarily, the existing Constitution needs some quick amendments to make it more workable, amenable, acceptable and operable to strengthen democracy.
It is, therefore, in the fitness of things that instead of taking-up 1972 Constitution in hand and then go on adopting amendments we may take-up the current Constitution in view of taking care of the de facto implications and then go on to incorporate amendments by way of addition, alteration, substitution or repeal.
Finally, let us by our judicious action at least once prove, 'Maxims: Democracy' of Bernard Shaw's -- "Democracy substitutes election by the incompetent many for appointment by the corrupt few."
(The writer is a former State Minister, Civil Aviation & Tourism and Textiles, Former Member of Parliament (Dhaka-2), former Chairman, Parliamentary standing Committee, Ministry of Agriculture, and former Managing Director, Biman Bangladesh Airlines. He can be reached at e-mail: mmfedamm@gmail.com)
Let us now reiterate here that there is no dearth of appreciation for the wisdom and spirit respectively of the Fifth Amendment Judgement of the Hon'ble High Court Division and that of the Hon'ble Appellate Division of the Supreme Court. But there should not be any stigma in having insight into the Judgement in order to highlight this brief for all and sundry at large specially the connoisseurs of laws.
Since the article is highly technical and legal and a large number of issues has also been condensed and crowded in a limited space, we would, therefore, apologise for any shortcomings at the very outset.
The Fifth Amendment Judgement came out on August 29, 2008 as a bye-product of Moon Cinema case by the Hon'ble High Court Division Bench of the Supreme Court. Upon appeal, the case travelled to the Hon'ble Appellate Division of the Supreme Court and not as a referral under the Article 106 of the Constitution.
The Hon'ble Appellate Division of the Supreme Court through its judgement of February 2010 made some remarkable observations obviously binding to the relevant judgement of the Hon'ble High Court Division. Of the observations, the following have been raised for quick comprehension.
(i) For sentimental attachment of public perception on historical background, a sidetracking has been adopted by the Hon'ble Appellate Division on the issue of insertion by the Fifth Amendment (by Shaheed Zia) of the words 'Bismillahir Rahmanir Rahim' at the 'Pre-Preamble'. It seems, however, that it has been condoned by the Hon'ble Appellate Division of the Supreme Court Should this 'Pre-Preamble' element be withdrawn, there may be a sprouting effect of public backlash at domino-theory scale.
(ii) Article 6 of the Constitution: Citizenship of Bangladesh as 'Bangalees' as was in 1972 Constitution was substituted by the Fifth Amendment but uncondoned in the judgement by the High Court Division has now been rightly condoned by the Appellate Division.
(iii) Findings and observations on Article 150 and IV Schedule of the Constitution made in the judgement of the High Court Division have been rationally and judiciously expunged by the Appellate Division in view of actions, inter aria, from 15/8/75 to 9/4/79 having been past and closed, and validation of acts that could have been done by a lawful government and so on and so forth. Moreover, revival of 1972 Constitution shall also put the original Art. 150 as before.
(iv) Article 95: Art. 95 of 1972 Constitution allows President to appoint Chief Justice (C.J) and that of other Judges in consultation with the C.J.
(a) 1975 (IV Amendment of the Constitution): President is to appoint C.J. and Other Judges. This is an alteration of Art. 95 of 1972 Constitution.
(b) 1976 (2nd proclamation order 1976): As in (a) above. This is a substitution of Art. 95 of the 1972 Constitution.
(c) 1977 (2nd proclamation order 1977): As in (b) above. This is a substitution of Art. 95 of the Constitution after the Fourth Amendment.
It is, thus, clear that there has never been any omission, deletion or repeal of the Article 95(1) but in effect 'altered' once and 'substituted' twice.
Since the judgement condoned provisions of the Fifth Amendment which only omitted/deleted various provisions of the Fourth Amendment and naturally and obviously did not condone provision of the Fifth Amendment that might have been incorporated by way of 'addition', 'alteration' or 'substitution' of any provision of the Fourth Amendment or that of the 1972 Constitution, hence this will in effect put back Article 95(1) as in the Fourth Amendment fully in operation.
Further, the judgement may either condone or uncondone provisions of the Fifth Amendment but should not make any attempt to go beyond the stipulations of the provisions of the Fifth Amendment i.e. if provision asks for 'change' or substitution, then such change or substitution has to be either condoned or uncondoned to that extent only.
Alteration or change of Article 95(1) from that of the 1972 Constitution and as incorporated in the Fourth Amendment enacted by Parliament may not be omitted by the said judgement as it will then be tantamount to an act beyond the scope of jurisdiction of the judiciary and hence ultra vires of the Constitutional stipulations for the judiciary.
The Appellate Division of the Supreme Court in its judgement has thus disapproved validation of Art. 95 as pronounced by the Fifth Amendment judgement of the High Court Division.
Furthermore, Art. 142 (I) (a) of 1972 Constitution reads as "Any provision thereof may be amended or repeal by Act of Parliament". It is, therefore, crystal clear that procedures for amendment or repeal of the constitutional provision need enactment of an Act by Parliament and no other means whether by way of a court verdict or otherwise shall be allowable.
It is painful to know that some of the learned experts have echoed that the issue at stake here is merely to validate those provisions of the 1972 Constitution after having been uncondoned those elements in the Fifth Amendment Judgement. The cat has now come out of the bag opening the Pandora's Box.
For examples, (i) since the Fourth Amendment of the Constitution was enacted by a valid Parliament and was repealed by the Fifth Amendment, how can the said repeal be condoned by the Fifth Amendment Judgement? The Fifth Amendment repealed the Chapter VI A (that led to formation of BAKSAL) incorporated by the Fourth Amendment and this act of repeal (uncondoned) by the Fifth Amendment has been condoned by the Fifth Amendment Judgement. In other words, a valid Act incorporated by the Fourth Amendment by Parliament was made invalid by the Fifth Amendment judgement i.e. a valid act of Parliament has been made invalid by the judgement, an absurdity of high magnitude. Rather than reprint this condonation by the Fifth Amendment Judgement, it needs, beyond all reasonable doubts an enactment by Parliament. Is it not ultra vires of the constitutional provisions? Shall it not put the cart before the horse? Will it not be tantamount to supremacy of the Supreme Court over Parliament?
(i) Will not reprinting of the 1972 Constitution rouse questions regarding third Amendment of the Constitution about transfer of Beruberi enclave, so on and so forth? Obviously question will come up for all other relevant issues implemented through subsequent amendments.
(ii) The Fifth Amendment Judgement by the High Court uncondoned Art.142 (1A), (1B) and (1C) and that have also been upheld by the judgement of the Appellate Division which at its 353 (2) (b) (of the judgement) has spelt out condonations of actions not derogatory to the rights of citizens. The 1972 Constitution under Art. 142 has mandated merely constitutional amendment bills to be passed by two thirds majority of the total number of members of Parliament. The Fifth Amendment of the Constitution strengthened Art. 142 through addition of Art. 142 (1A), (1B) and (1C) for holding referendum. Did it not give more power to the people so that Parliament without further references to the people shall not be able to amend certain important provisions of the Constitution? That is it shall not change the basic fabrics and characteristics of the Constitution.
Reprinting: What is legally and within the parameters of the Constitution right that needs to be done neat and clean. Should an enactment by Parliament be needed, let us so do it rather than take the resort of the court and avoid referendum.
Let us now visit down to earth scenario about reprinting the 1972 Constitution. Reprinting means printing the original document as it is or at best with minor and insignificant changes. For example, reprinting was made in 2006 for 1972 Constitution. But reprinting, as came out in the press, the Constitution after incorporation of the Eighth Amendment also made through similar arrangement should not have been cited as an example, as it ought to have been enacted by act of Parliament. Such example for reprinting to suit perhaps some current philosophy specially by learned experts may not speak good to enhance our constitutional process.
The opinion of the stalwarts of legality has been sharply divided as to whether to go back to 1972 Constitution to start with or take the existing Constitution (with till date amendments), in hand, and proceed through amendments to be incorporated in the Constitution by way of addition, alteration, substitution or repeal.
We guess the stalwarts are right in their own schools of thought.
The globe being round, one can reach one's destination almost through any direction. The question is as to how soon and at what cost.
The 1972 Constitution in its original form, under to-day's context, is unworkable. Contrarily, the existing Constitution needs some quick amendments to make it more workable, amenable, acceptable and operable to strengthen democracy.
It is, therefore, in the fitness of things that instead of taking-up 1972 Constitution in hand and then go on adopting amendments we may take-up the current Constitution in view of taking care of the de facto implications and then go on to incorporate amendments by way of addition, alteration, substitution or repeal.
Finally, let us by our judicious action at least once prove, 'Maxims: Democracy' of Bernard Shaw's -- "Democracy substitutes election by the incompetent many for appointment by the corrupt few."
(The writer is a former State Minister, Civil Aviation & Tourism and Textiles, Former Member of Parliament (Dhaka-2), former Chairman, Parliamentary standing Committee, Ministry of Agriculture, and former Managing Director, Biman Bangladesh Airlines. He can be reached at e-mail: mmfedamm@gmail.com)