DOES INCONSISTENCY WITH 'FUNDAMENTAL PRINCIPLES OF STATE POLICY' INVALIDATE A LAW?

Does Inconsistency with ‘Fundamental Principles of State Policy’ Invalidate a Law?

M. Jashim Ali Chowdhury

Published in the BRAC University Journal Vol 5 No 1 pages 71-75

To find a pdf copy click: http://www.bracu.ac.bd/journal/contents/pdf.php?article=116

ABSTRACT

There is a struggle throughout the world on the issue of justiciability of socio-economic rights. It is forcefully argued that socio-economic rights should be given the same status as that of civil political rights. Ensuring the judicial enforcement of socio-economic rights has been considered a prime issue in this regard. In Bangladesh, Part II of the Constitution embodies the socio-economic rights as “Fundamental Principles of State Policy” whereas “Fundamental Rights” consisting of Civil Political rights find place in Part III. Article 8(2) of the Constitution makes the Principles and thereby the socio-economic rights judicially non-enforceable. This provision came under judicial consideration in Kudrat-e-Elahi v. Bangladesh case. The Appellate Division relied on non-enforceability criteria (in article 8(2)) to hold that a law cannot be repealed only on the ground of inconsistency with fundamental principles. This article attempts to submit the opposite.


Keywords: Civil Political Rights, Economic Social Rights, Fundamental Principles of State Policy, Fundamental Rights, Judicial enforcement.

I. INTRODUCTION

The Constitution of Bangladesh (1972) creates a dichotomy between civil and political rights and economic, social and cultural right by making the former enforceable by the court and the latter non-enforceable.
Economic, social and cultural rights are included in Part II of the Constitution as “fundamental principles of state policy” (articles 8 to 25). These include the equal rights of women, principles of ownership, provision of basic necessities of life including food, clothing, shelter, education and medical care, and worker’s rights. Article 8(2) explicitly states that these principles are not judicially enforceable. It reads as follows:
“The principles set out in this part shall be fundamental to the governance of Bangladesh, shall be applied by the state in making of laws, shall be a guide to the interpretation of the constitution and of the other laws of Bangladesh, and shall form the basis of the work of the state and of its citizens, but shall not be judicially enforceable.”
Part III of the Constitution embodies the ‘fundamental rights’, encompassing mainly civil and political rights (articles 26 to 47). Unlike Part II, the rights in Part III are justiciable. Citizens have the right to approach the High Court Division to redress any infringement of the rights (article 44). Again the Constitution provides that laws inconsistent with the rights shall be void to the extent of such inconsistency (article 26) there being no such provision regarding the principles in part II.
The status of the fundamental principles of state policy (FPSP) within the fabric of the constitution has come under judicial scrutiny in Kudrat-E-Elahi Panir and Others v Bangladesh 44DLR (AD) 319 where the appellants relying on article 7 of the Constitution tried to convince the court that a law inconsistent with any of the FPSP is void. Article 7 deals with the supremacy of the Constitution, and sub section 2 provides that “if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void”. To negative the contention, the Court interpreted article 7(2) along with article 8(2) in a pessimistic approach. This article is an attempt to prove into the worth of such non-liberal literal interpretation of the constitution and intends to submit that the constitution doesn’t bar repelling a law conflicting with any of the ESC rights placed in Part II.


II. STATUS OF THE PRINCIPLES UNDER JUDICIAL SCRUTINY

The above mentioned case concerned a challenge to Ordinance No. XXXVII of 1991 (that subsequently became Act No. II of 1992) which abolished the elected Upazila Parishads (the third tier of the local government) and vested in the government all rights, powers, authorities and privileges of the dissolved Upazilla Parishads. The appellants, some chairmen of dissolved Upazilla Parishads, unsuccessfully challenged the law in the High Court Division and therafter obtaining leave to appeal appeared before the Appellate Division of the Supreme Court of Bangladesh.
The Ordinance was challenged on two grounds. First, it violates article 59 of the constitution. Article 59 provides that local government in every administrative unit shall be entrusted to bodies composed of elected representative of the people. Article 152(1) of the Constitution defines administrative unit as ‘a district or other area designated by law for the purposes of article 59’. The court rejected the contention holding that though all the local government institutions must conform to article 59, the Upazilla was never designated to be an administrative unit for the purpose of article 59. Hence the abolition of Upazilla didn’t attract the mischief of article 59 (Kamal Mustafa, 1994:131).
Second, the appellants argued that the Ordinance being inconsistent with articles 9 and 11 runs against the spirit of the Constitution and becomes void by the operation of article 7(2). Article 9 emphasises on maintaining democratically elected local government institutions. The State shall encourage local government institutions ‘composed of representatives of the areas concerned’ with special representation given to peasants, workers and women. Article 11 affirms the democratic nature of the state, in which fundamental human rights and freedoms and respect for the dignity and worth of the human person are guaranteed and the effective participation of people through their ‘elected representatives’ in administration at all levels is ensured.
In the main judgement Ahmed Shahabuddin CJ held that articles 9 and 11 being located in Part II of the constitution are not judicially enforceable. If the State does not or cannot implement these principles the Court cannot compel the state to do so and other such fundamental principles also stand on the same footing (para 22 p. 331).
Kamal J concurring with Shahabuddin CJ based his reasoning on the following two points:
First, while there is a specific provision in the Constitution dealing with laws that are inconsistent with civil and political rights (article 26), there is no specific provision on laws that are inconsistent with fundamental principles of state policy. To him the omission is deliberate and calculated because provisions analogous to article 26 could have been inserted in part II as well.
Second, under article 7(2), any law that is inconsistent with the Constitution shall be void to the extent of the inconsistency. Kamal J observed that the Constitution itself in article 8(2) recognises that fundamental principles of state policy are not laws but “principles” that have to be applied by the state when making laws. And to equate “principles” with “laws” is to go against the law of the Constitution itself (para 84 p. 346). So article 7(2) cannot be interpreted to mean that if any other law is inconsistent with the “principles” mentioned in part II then that law to the extent of the inconsistency will be void (para 85 p. 346). He fears that such interpretation would bring “the Fundamental Principles of State Policy at par with Fundamental Rights in so far as voidability is concerned (para 85 p. 346).”
Interestingly, though the court declined to strike down the Ordinance for inconsistency with fundamental principles of state policy, it used articles 9 and 11 as touchstone to interpret article 59 to hold that designating administrative units and forming elected local governments are the constitutional obligations of the state. Accordingly it ordered the Government to designate all the local government areas as administrative unit within four months and then to replace all non-elected persons by elected representatives within six months from the date of the judgment (Judgment on July 30 1992). Unfortunately the order is yet to be executed.


III. AN ANALYSIS OF THE JUDGEMENT

Though the case concerns only with the people’s right to participation, it has a direct impact on the enjoyment of other socio-economic rights as well. The judgement shall facilitate the State in passing laws detrimental to people’s right to basic necessaries of life including food, clothing, treatment, housing and education as all those rights are placed in part II of the constitution. Hence, the observations of the court as regards the validity of law contrary to the state principles in Kudrat-E-Elahi require consideration.
Firstly, the interpretation of article 7(2) offered by Kamal J fails to follow the proper tune of the article, as a plain reading of the article leads one to a different conclusion. Article 7(2) declares the Constitution to be the supreme law of the Republic and further proceeds to say that if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. It is not disputed that “principles” are not “law” in the ordinary sense and it is obvious that ‘principles’ may not supersede the ‘law’. But the term “this Constitution” in article 7(2) includes both the ‘laws’ and ‘principles’ embodied in it. Moreover, the principles in Part II are not principles of ordinary weight or principles of any particular organ of the state, of any public corporation promulgated under its plenary or delegated legislative power. They are ‘constitutional principles’ and article 8(2) itself requires the state to apply these principles when making laws.
Secondly, it may be asked whether article 8(2), by making the provisions of part II unenforceable by the court, has vested the legislature with power to flout these provisions by enacting laws in violation of these provisions. Logically article 8(2) cannot be interpreted as superseding article 7(2) on the yardstick of which all laws enacted by the legislature has to be tested [Huda AKMS, 1997:281]. What is meant by unenforceability is that the directive principles can’t be enforced by and through judicial process to compel the state to carry them out, if it can’t do. This is not to say that it can throw them to the winds, and can enact laws openly in opposition to them. A court can unambiguously declare a law unconstitutional as being manifestly opposed to the fundamental principle of state policy (Jain Kagzi Mc, 2004:938).
Thirdly, the article 8(2) has five parts – the principles:
• shall be fundamental to the governance of Bangladesh;
• shall be applied by the State in making of laws;
• shall be a guide to the interpretation of the Constitution and other laws of Bangladesh;
• shall form the basis of the work of the State and its citizens; and
• shall not be judicially enforceable.
It seems that while declining to nullify a law on the ground of inconsistency with the principles and using the principles only as an interpretative tool, judiciary is ready to enforce the fifth and third criteria respectively and not the other three criteria set out in article 8(2). It may be asked whether article 8(2) binds the judiciary only and leaves the executive and legislature out of its ambit.
Fourthly, by invoking the phrase ‘shall not be judicially enforceable’, Ahmed Shahabuddin CJ held that if the state ‘does not or cannot’ implement the principles, the court cannot compel. What is missing in this argument is that though the court cannot compel progression, it can always pin down retrogression. In this regard Justice Badrul Haider Chowdhury of the Appellate Division of the Supreme Court in Anwar Hossain v Bangladesh 1989 BLD(Spl) 1 has stated that:
“Though the directive principles are not enforceable by any court, the principles therein laid down are nevertheless fundamental in the Governance of the country and it shall be the duty of the state to apply these principles in making laws. It is a protected Article (article 8- author) in our Constitution and the legislature cannot amend this Article without referendum. This alone shows that the executive cannot flout the directive principles. The endeavour of the Government must be to realise these aims and not to whittle them down (para 53 p 61).”
Lastly, the fear of fundamental principles becoming at par with fundamental rights is not a substantiated one. Conversely, the tune is somewhat opposite in the constitution of Bangladesh. The constitution has discarded the supremacy of rights doctrine by inserting article 47(1) (Ahmed Naim 1994:91). Article 47(1) provides that no law shall be deemed to be void on the ground that it is inconsistent with or takes away or abridge any of the rights guaranteed by Part III which is declared to be enacted to give effect to any of the fundamental principles of state policy set out in Part II. As regards the relative strength of rights and principles, it is pertinent to consult the Indian jurisprudence.


IV. COMPARATIVE CASE LAW FROM INDIA

The Indian Constitution is similar to that of Bangladesh in this regard as socio-economic rights are included as directive principles of state policy. In the constitution of India a detailed list of human rights has been incorporated in the form of Fundamental Rights and Directive Principles under Part III and Part IV of the constitution respectively. Despite the classification of the rights and principles, there has been, in practice dynamic interaction between these two parts, which gradually enhanced the status of the principles (Prasad Anirud 1976:85).
Initially the Indian Supreme Court in State of Madras v Champkam Dorairajan AIR 1951 SC 226, 525, MH Quareshi v State of Bihar AIR 1958 SC 731 and Re Kerala Education Bill AIR 1958 SC 956 took the stand that directive principles have to conform to and run subsidiary to the chapter on fundamental rights.
However, in Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 the court held that what is fundamental in the governance of the country cannot be less significant than what is significant in the life of the individual and so rights and principles supplement each other. Mathew J constituting the majority in that case said: considerations of justice, of the common good, or "the general welfare in a democratic society" might require abridging or taking away of the Fundamental Rights (para 1760).
Subsequently the 42nd amendment to the Indian Constitution in 1976 tightened the link between the ‘principles’ and ‘rights’ by including the word ‘socialist’ in the preamble and by amending article 31C to confer primacy of a principle over fundamental rights.
Inclusion of the word ‘socialist’ in the preamble to describe the nature of the statehood of India affirmed and established that Indian’s is a socialist constitution striking a balance between the individual liberty and the social interest (Ahmed, Naim 1994:94).
Article 31C, however, was struck down in Minerva Mills Ltd v Union of India AIR 1980 SC 1789 on the ground that giving absolute primacy to one part over the other disturbs the harmony of the constitution and ipso facto destroys the basic structure of the constitution (Chandrachud CJ, para 22, 64). Bhagwati J (dissenting), however, maintained that if a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest (para 329 F-H and 330 A-F). Later in Sanjeev Coke Manufacturing Co v Bharat Coking Coal Ltd AIR1982 SC 239 the Court affirmed Bhagwati’s dissenting opinion.
The Indian literature can be a source of inspiration for Bangladeshi courts. Since the scheme of the Constitution of Bangladesh relating to the rights and principles is the same as in the Indian Constitution, the same position should obtain under our constitutional dispensation (Islam Mahmudul 2002:56). Moreover whereas the Indian Constitution describes Part IV as “Directive Principles of State Policy”, the Bangladeshi one describes Part II as “Fundamental Principles of State Policy” which may be claimed to be calculated and deliberate. Keeping in mind that the Indian Supreme Court never shrugged its shoulders where it was called upon to give effect to principles (Mehta, PL & Verma N 1994:21), our judiciary is expected to be more enthusiastic than its Indian counter part.


V. CONCLUSION

Fundamental principles are incapable of judicial enforcement only in the sense that the order, time, place and mode of fulfilling the policies should be left with the executive. At the same time the executive should not be allowed to defy the Constitution by allowing them to flout, ignore, disregard and defeat the fundamental principles of state policy in making laws. Any sort of retrogression is constitutionally unacceptable. An interpretation of the constitution that allows repelling laws inconsistent with the fundamental principles will be in template harmony with the vision and mission of the Constitution enshrined in the preamble.

REFERENCES

[1] Kamal. Mustafa: Bangladesh Constitution: Trends and Issues, 2nd ed., pp. 176. University of Dhaka, (1994)

[2] Huda. AKMS: The Constitution of Bangladesh Vol1, pp. 554. Rita Court. Chittagong. (1997)

[3] Jain. Kagzi Mc: The Constitution of India, Vol2, 4th Edition, India Law House. (2004)

[4] Ahmed. Naim: Public Interest Litigation Constitutional Issues and Remedies, pp. 190. BLAST, Dhaka (1994)

[5] Prasad. Anirud: “Human Rights and Socio-Economic justice: A Study with special reference to India” in Civil and Military Law Journal, Vol12 pp. 84-93 (1976)

[6] Islam. Mahmudul, Constitutional Laws of Bangladesh, 2nd ed., pp. 848. Mullick Brothers, Dhaka (2002)

[7] Mehta. PL and Verma Neena: Human Rights under the Indian Constitution: (The Philosophy and Judicial Gerrymandering), pp.187. Eastern Book Corporation. (1999)

Determining the Province of Judicial Review: A Re-evaluation

Determining the province of Judicial Review: A re-evaluation of ‘Basic Structure’ of the Constitution of Bangladesh
Dr. M. Jafar Ullah Talukder*
M. Jashim Ali Chowdhury**

Published in the Metropolitan University Journal (Vol 2 Issue 2), a peer reviewed journal.

To download the pdf version from Metropolitan University website click: http://www.metrouni.edu.bd/webMetro/Journal/vol2/Writing14.pdf

Abstract
The fascinating doctrine of Basic Structure resides in the nitty-gritty of the highly sophisticated debate on the scope of constitution amending power. It has become a vibrant tool of judicial activism to protect the constitutional edifice faced with the invincible parliamentary super majority from ruination. The substance of the claim is that there are certain structural pillars of the Constitution which cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. Though since Anwar Hossain it has got a confident practical acceptance, a plain reading of Article 142 of the Constitution puts the doctrine into the fogginess of controversy, incongruity and inapplicability in certain cases. This article aims at outlining the clarified range of the reach of the doctrine as well as the flat standard of its identification to shun the duskiness rotating round the contents of the notion.



1. Introduction
The celebrated doctrine of Basic Structure is the most outstanding constitutional ‘invention’ of the Indian Supreme Court in Kesavananda Bharati (His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and another 1973 (4) SCC 225ff). The gist of the dictum is that parliament could not use its amending powers to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.
Since then the premise of this proposition has become a cause celebre (Hossain and Omar, Coup d' etat) in some newer Commonwealth countries especially in South Asia. In Bangladesh it was given a thriving trial by the Appellate Division in Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. A majority of 3:1 of the Appellate Division of the Supreme Court struck down the Constitution (Eighth) Amendment Act, 1988 establishing six permanent Benches of the High Court Division outside Dhaka on the charge of being violative of the basic structure of the Constitution. While scrutinizing the Anwar Hossain case three most striking constitutional implications of it become noticeable.
First, the Judiciary has got a free hand in defining basic structure making the concept a fluctuating one and hence bad. Second, the judiciary has got a final say over the power of the parliament to amend the constitution. Third and the most sweeping one is that judiciary will thereby not only trump over the ‘will of the people’ expressed through an elected legislature, but also the 'absolute will' of the people in case of amendments effected through referendum.
Against this backdrop, even though feeling deeply associated with the platitude that a democracy likes ours is vulnerable to its own representatives due to ‘excessive adventures with power’ coupled with uncertain political consciousness and illiteracy of the people (Sethi 41), this paper argues:
First, that the plea of inherent limitation on the power of amendment is not plausible as it makes certain provisions of the Constitution (which again are to be determined by the court on case to case basis) virtually fixed for ever;
Second, that though mere parliamentary amendments (effected through two thirds majority in the House) may be subjected to judicial oversight, amendment effected through referendum (Article 142 (1A)) must not be; and
Third, the judicial oversight on parliamentary amendment again should be circumscribed by fixing or expanding, if necessary, the list of basic structures in Article 142 (1A) of the Constitution so that the basic structure does not become a matter of continuing uncertainty.
Before the assertions are presented with justifications and replies to possible objections, we start with a brief account of the constitutional provision regulating the amendment procedure.

2. Amending process of the Constitution
The Parliament is given the legislative power in Article 65 while the procedure of amending the constitution is prescribed in Article 142 of the Constitution of the People’s Republic of Bangladesh. An amendment to the constitution may be made through a Bill passed in the parliament by the votes of not less then two thirds of the total members of the Parliament. There is however, clause (1A) inserted in Article 142 by the Second Proclamation Order No IV of 1978. This clause provided for referendum in excess of two thirds majority in cases where the amending Bill intended to amend the preamble, any of the Articles 8, 48, 56, 58, 80, 92A and 142. The President shall refer the Bill to referendum before his assent his given. This again was amended by the Act No XXVIII of 1991 which omitted Articles 58, 80 and 92A from the list.

3. Is there anything unamendable in the Constitution?
In Anwar Hossain the Court emphasized on the inherent limitation on the power of amendment. It was assumed that amending power is a limited power, by express provsions or necessary implications. Justice Shahabuddin Ahmed made a difference between ‘adoption of a new constitution’ and ‘the derivative power of amending the constitution’ and having regard to the term ‘amendment’ took the view that amendment of the Constitution does not mean its abrogation or destruction or a change resulting in the loss of its identity and character (Para 378).
The contention that ‘amendment’ does not mean fundamental change resulting in the losing of identity may be disputed at least on three grounds. First, if the fundamental character of a constitution can never be changed, should it not mean that a particular generation is governing the future from the grave particularly when ‘this Constitution does not contain any provision to repeal or replace the constitution’ (B H Chowdhury J in Anwar Hossain para 256)? Secondly, the presence of Article 142 (1A) along with the absence of provision for ‘replacing or repealing’ the constitution makes it clear that there is no other way to effect change, either trivial or drastic, in the Constitution except the Article 142 procedure. There is no provision for establishing a Constituent Assembly to overhaul the Constitution if necessity arises.
Thirdly, our constitution is ‘the solemn expression of the will of the people’ (Article 7). Now think of a situation when the people of Bangladesh think of a completely new version of it with fundamental changes in the philosophy and structure of the Constitution. Any such effort will not be tenable under the scheme of Basic Structure of the present Constitution as there are some basic features which according to Anwar Hossain are not amendable in any case (Para 255). Should we construe the intention of the framers of the Constitution in this way? An unamendable constitution is the worst tyranny of time. So the argument of inherent limitation is a misnomer to establish that there are some provisions which can never be changed. Constitution is particularly hard to amend but not unamendable.

4. Judicial Review of Constitutional Amendment
On judicial review of constitutional amendments, some poses an outright rejection of the concept, while some other asserts a sweeping claim of such power. However, we are not willing to generalize the formulation in that way. Taking cognizance of the nature and modes of amendment, our stance on judicial review of constitutional amendment is distinct for two types of amendments which we call parliamentary amendment and popular amendment.

4.1. Amendment made by the Parliament alone
While judicial review of laws passed by parliament is marked as a precursor of constitutional supremacy, judicial review of the constitutional amendments is seen with both ‘reverence and suspicion’ (Kamal 139). There are arguments disputing the judicial review of parliamentary amendment. First, some argue that Judiciary should protect the Constitution as it is and check that ordinary laws do not violate the Constitution. The Judiciary should not define how the constitution should be which, it is argued, the ‘basic structure’ purports to ensure. If the Court ventures into this path, that would be tantamount to Judicial Supremacy or 'government by the court' (Hossain and Omar, Constituionalism).
Secondly, amendment of the constitution being a political question should remain out of judicial review (Hossain and Omar, Constitutionalism). Thirdly, the amending power of parliament (constituent power) is distinct from its plenary legislative power. The power of amendment is not dealt with in the Part which deals with composition, powers and functions of Parliament and Article 65 is not applicable in case of amendment of the Constitution under Article 142 (Islam 404). In exercising its constituent power the Parliament is responsible to electorate only and hence judicial review of constituent action should be barred (ATM Afzal J in Anwar Hossain Para 530).
It is submitted that all the arguments lack strong foundation and are rebuttable. Firstly, it is one of the salient features of ‘Constitutional Supremacy’ that amendment of the constitution is particularly rigid and cumbersome. There are many ways to ensure this. Requirement of two thirds majority for constitutional amendment is only one of them. Judiciary as a guardian of the Constitution should have a say in constitutional amendment. This is nothing but another sign of rigidity of the Constitution. Once elected, the parliamentarians do not inherit a blanket power to do everything they wish until they are de-elected in the next election (Hoque). This argument is extremely relevant. This if not ensured will make the constitution a plaything in the hands of the majority party ridden parliament and thus will give birth to ‘Parliamentary Supremacy’ which also is surely not contemplated by the framers of the constitution.
As to the second point, it is not disputed that amendment may be the result of political agenda or policy determination. But is this not the case with almost every law passed by a particular parliament? Does law making by a particular ruling party not reflect its political ideology and convenience? So if political question is not evoked in ordinary legislation why should it be preached only for constitutional amendments? Moreover the doctrine of political question is not applicable at least in parliamentary amendments due to Article 7 which implies the concept of limited government. Nobody can transgress the limit by asserting the doctrine of political question (Islam 311). The Appellate Division in Special Reference no 1 of 1995, 47 DLR (AD) 111 observed that:
‘There is no magic in the phrase ‘political question’. While maintaining judicial restraint the Court is the ultimate arbiter in deciding whether it is appropriate in a particular case to take upon itself the task of undertaking a pronouncement on an issue which may be dubbed as a political question.’
Thirdly, the proposition that the parliament’s power of amendment is a constituent power and as such is not subject to judicial review also seems no more to hold the field. In Anwar Hossain case while wrongly conceding the difference between the constituent power and legislative power, the Court wrongly emphasized on ‘inherent limitation’ on the power of amendment to hold it to be subject of judicial review. Despite agreeing with the obiter dicta, we submit that the plea of amendment being a constituent power better suits in another place which we address later. That ‘inherent limitation’ lacks substance is already shown. Rather there is a far better approach to bring parliamentary constitutional amendment under judicial review which was mistakenly rejected in Anwar Hossain.
It was argued in Anwar Hossain case that an Act of Parliament amending the constitution will be ‘any other law’ within the meaning of Article 7 to attract the operation of the provision ‘if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void’ (Article 7(2)). This was rejected simply on the ground that an amendment is passed in the exercise of constituent power.
But later in Kudrat-e-Elahi v. Bangladesh, 44 DLR (AD) 319 Mustafa Kamal J held to the contrary, “This Constitution taken as a whole is a law, albeit the supreme law and by ‘any other law’ and ‘that other law’ the Constitution refers to the definition of Law in Article 152(1), including a Constitutional Amendment (Para 84). Under Article 152 (1) "law" means any Act, ordinance, order rule, regulation, bye-law, notification or other legal instrument, and any custom or usage having the force of law in Bangladesh. This was again confirmed in BIMW Ltd v Government of Bangladesh and Ors 14 BLT (Special Issue) 2006 widely known as The Moon Cinema case (Page 54). Moreover, if we compare Article 7 with Article 26 it is seen that while the latter was amended by the Third Amendment to mean that it does not hit Article 142, the former was not amended to such effect (Islam 403). So an amendment under Article 142 is very well hit by Article 7.
In fact judicial review of parliamentary amendments has become a regular practice in Bangladesh. The Tenth Amendment was challenged in Dr. Ahmed Hossain v. Bangladesh 44 DLR (AD) 109, 110 and Fazle Rabbi v. Election Commission 44 DLR 14. The Thirteenth Amendment was challenged in Mashihur Rahman v. Bangladesh 1997 BLD 55. The Fifth Amendment was challenged in The Moon Cinema Case. All the challenges were decided on merit and no question regarding the propriety of judicial review was raised.

4.2. Amendments made through referendum
While launching Basic Structure, the Appellate Division did not make any distinction between amendment made by two thirds majority in the House and amendment effected by the House plus referendum. This is very much important in the sense that though the 8th Amendment was not effected through a referendum, the pronouncement of the Court at least theoretically runs the risk of affecting a popular amendment.
Only one of the judges, B H Chowdhury J made reference to the Martial Law Amendment of Article 142 rendering the Preamble and some other provision unamendable without referendum to the people (Para 256). He made that reference only to establish that the constitution itself recognizes something as ‘Basic’ over which the majority was pondering. Yet by analogy of the phrase ‘unamendable without referendum to the people’ we may presume B H Chowdhury J to acknowledge that these ‘basic principles’ are amendable by the people.
But there is a tendency to camouflage the Article 142 (1A) as whole in the basic structure talk. It is evident when Mahmudul Islam, a pro basic structure scholar, criticizes even the elusive reference made by B H Chowdhury. To him such a reference is misleading. As basic structure is an issue of original dispensation, it cannot depend on the interpretation of an amended provision (Islam 394). But total camouflage of Article 142 (1A) or its spirit in Basic Structure discourse will not be logically correct. A distinct approach to amendments under 142 (1A) procedure is warranted at least on three grounds:
First, even from the perspective of ‘originalism’ (the ‘romantic theory’ of literature wherein, the meaning intended by the author of a text is privileged and is placed above all the contesting meanings that are argued) it is well evident that while the concept of limited government in Article 7, upon which Anwar Hossain resides, is intended for the different functionaries of the state, the constitution being the expression of their will, the people’s right to amend any provision of the constitution by way of addition, alteration, substitution or repeal is unlimited.
Secondly, the plea of amending power to be a constituent power mentioned in the previous section nicely fits with popular amendment under Article 142 (1A). It is curious to note that while amending the Constitution it is not the Parliament who exercises the constituent power. Article 142 of the constitution merely lays down the amending procedure. It does not confer upon the parliament the power to amend the Constitution. The amending power of parliament arises from other provision of the Constitution (Article 65) which gives it the power to make laws i.e., plenary legislative power (Subba Rao CJ in Golak Nath v. State of Punjab AIR 1967 SC 1643).
Rather a plain look on the Preamble of the Constitution will locate the constituent power elsewhere. The Preamble imposes a sacred duty upon the people of Bangladesh to safeguard, protect and defend the constitution and maintain its supremacy ‘as the embodiment of the will of the people of Bangladesh’ (A.B.M Kahirul Haque J in Moon Cinema Case Page 42). The ‘constituent power’ is here with the people of Bangladesh (Chowdhury 114). The Parliament did not and does not give us the Constitution. It is we, the People of Bangladesh who ‘adopt, enact and give to ourselves’ the Constitution. So the constituent power resides exclusively in people. The parliament’s constituent power, if it has any, is merely derivative because ‘all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution’ (Article 7(1)). The logical conclusion that follows is that amendment made by referendum, being not hit by Article 7 and being in the exercise of constituent power, is not subject to judicial review; whereas amendment made by Parliament in the exercise of derivative power is subject to judicial review.
Thirdly, distinct approach to popular amendment will answer also to the controversy regarding the Twelfth Amendment. The Appellate Division argued that the past amendments altering the basic structures of our constitution provides no grounds for such amendments to be made in future (Para 213). The Twelfth Amendment turned the Presidential form of government into a Prime Ministerial one. The Presidential form of government was a basic structure of the Constitution then. Though the Prime Ministerial from of government was the result of democratic revolution of the three alliances (Islam 407), it would stand void as per Anwar Hossain. But how far it sounds rational to invalidate the Twelfth Amendment?

4.2.1 Addressing the Validity of Article 142 (1A) itself
While advocating the specialized treatment for Article 142 (1A) we should not forget that there is a well founded doubt on the validity of Martial Law Amendment introducing Article 142 (1A) (Islam 394). It was substantiated in Moon Cinema where the High Court Division declared the Martial Law Amendment in Article 142 void (Page 238). A.B.M. Khairul Haque J opened the Pandora’s Box of anfractuous debate (Karzon and Al Faruque 192) observing:
“Addition of clause (1A) was craftily made. In the one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People’s Republic of Bangladesh according to his own whims and caprices by his order…….... but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions cannot be changed even by the two thirds majority members of the parliament short of a referendum. In short by executive Order of one person, amendment of the Constitution can be made at any time and in any manner but even the two thirds majority of the representative of the people cannot further amend it. We are simply charmed by the sheer hierocracy of the whole process” (Page 199).
The decision is stayed by the Appellate Division on appeal which is pending now. Keeping in mind that Moon Cinema is a matter sub judice, we humbly submit that we cannot altogether disregard the philosophy of Article 142 (1A). One of the main intentions behind clause (1A) was to check constitutional amendments like Fourth Amendment whereby a democratic constitution took an autocratic complexion. The Fourth Amendment is widely accused to destroy the Basic Structure of the Constitution without taking fresh mandate from the people on the new standing of the majority party. Article 142 (1A) was presumably intended to compel the majority party in the Parliament to seek popular verdict before such a drastic change in future. The force and rationale of that philosophy seems not to be very weak.
Moreover, in Moon Cinema the High Court Division’s apathy to the Fourth Amendment is evident. Though it refused to condone the Martial Law amendment of any of the provsions of the original Constitution, the Court was ready to condone the amendments deleting the various provision of the Fourth Amendment (Page 242). In this regard, the position of Article 142 (1A) is interesting. It was not in the original constitution and it did not delete any provision of the Fourth Amendment. But certainly it deleted the scope of any such Fourth Amendment in future without popular mandate. Now the burden of determining the exact constitutional status of Article 142 (1A) is on the Appellate Division. The Apex court may either accept or reject the High Court Division rationale. But it is possible to cure the gangrene by a democratic amendment re enacting the present Article 142 (1A) which is needed also for another purpose discussed below.

5. Delimitation of Basic Structures
Accepting the Judicial Review of parliamentary amendment dos not relieve us of another important attack on Anwar Hossain. It is the issue of there being innumerable and controversial basic structures. In Anwar Hossain Shahabuddin Ahmed J gave a list of eight basic features of the Constitution (Para 377). Mohammad Habibur Rahman J added another one to the list (Para 443). Badrul Haider Chowdhury J found twenty one unique features out which some were basic which he did not identify (Kamal 100). In India more than half of the provisions of the Indian Constitution are declared to be basic and the list is still open (Uddin 31). This never ending and ever expanding list of basic structures is creating nothing but confusion and inconsistent application. Two instances below should suffice to establish the fact.
In the aftermath of the Babri Mosque incident the Indian Supreme Court in S.R. Bommai v. Union of India (1994) 3 SCC 1 justified the dismissal of the BJP led governments in Rajasthan, Madhya Pradesh and Himachal Pradesh on the ground of failure to uphold the ‘secular’ character, which was considered to be a basic feature, of the Indian Constitution and President’s Rule was imposed there. Now, strange result may follow if someone in India approaches the Court for dismissal of a particular government on account of its capitalist policy being opposed to ‘socialism’, another basic feature of the Indian Constitution.
In the cases of Zafar Ali Shah v. General Parvez Musharraf PLD 2000 SC 869 and Wasim Sajjad v. Pakistan PLD 2001 SC 233 the Pakistan Supreme Court conceded the Martial Law Administrator’s power to amend the constitution (Islam 393) as if democratic governance was not a basic structure of the Pakistani Constitution. At the same time it held that the Martial Law Administrator couldn’t destroy the basic structures of the Constitution. How curious an application of basic structure! Does there remain anything basic while a usurper makes the constitution subservient to his will?
So it is necessary to ensure certainty in list of basic structure so that parliament will not be in a fix regarding the scope of amending power (Uddin 31). Presently Article 142 (1A) provides a short list of issues amendment of which requires referendum in addition to a two third majority in the floor. To delimit the infinity of basic structures, Article 142 (1A) of the Constitution may be amended, if we think the present list to be too short, to include some other features like constitutional supremacy (art.7), elected local government (art.59), no taxation without parliamentary approval (art.83), judicial review (art.102), judicial independence (Article 22), independence of the Election Commission (art.119) in list. Doing this will require a referendum. This if done in the form of renovation, will serve two purposes in the same journey. It may solve the validity crisis of Article 142 (1A) as well as confirm that what is basic for a political entity (i.e., the state) should be determined by the political opinion of the people not by the judges. The people will certify that these are the basic structures of the constitution amendment of which would require the Parliament to seek popular approval.
Importantly, this codification shall not foreclose the list of basics for all the time to come. If any new principle emerges in future which might then appear to be ‘basic’ the Legislature along with the Populace shall have the option to add that in the Constitutional list through referendum. This will mitigate the fear of changes in the power equation between the parliament and the judiciary in favour of the latter (Bhanu 110). In regular Parliamentary amendments by two third majority in the House, the Supreme Court shall, if challenged, see whether the particular amendment conforms to the basics enumerated in Article 142 (1A) or not.

6. Conclusion
One of the majority judges in Anwar Hossain, M H Rahman J stood out in marked contrast to the views held by other judges (Kamal 109). To invalidate the 8th Amendment he stressed on its being opposed to the philosophy enshrined in the Preamble. He argued that when the Parliament cannot by itself amend the Preamble, it cannot indirectly amend it by amending the provision of the constitution to impair or destroy the fundamental aim of our society (Para 338). This is a unique feature. The insinuation of M H Rahman J is that so far as the basic provisions like Preamble, Articles 8, 48, 56, and 142 remains intact in the Constitution, there cannot be any amendment contrary to those provisions. If Parliament wishes to amend these, it may do so by seeking popular verdict.
We think this should be an appropriate approach to address legislative madness to temper with constitutional fabric. That is to say that while the Parliament is amending any provision of the constitution, such amendment is subject to judicial scrutiny to ensure its conformity with the basic provisions enumerated in Article 142 (1A). This is the true implication of Article 7 of the Constitution which prime facie speaks of ‘Constitutional Supremacy’ but on the ultimate analysis personifies ‘Supremacy of the People’ when it declares ‘This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic.’ The Constitution is supreme so far as it expresses the will of the people. All the supremacies - Parliamentary, Judicial or Constitutional – must give way to the Supremacy of the People. Let the people determine the basic structures of the Constitution and let them alter anything which they think no more to be basic. Hence, any amendment effected through referendum must be beyond any sort of judicial scrutiny while amendment passed in the floor of the Parliament must pass the test of constitutionally fixed basic structure.







Bibliography

Bhanu Pratap. “India’s Living Constitution: Ideas, Practices, Controversies.” The inner conflict of constitutionalism: Judicial review and the Basic Structure in Ed. E Sridharan. Delhi: Permanent Black. 2002. 99-148.

Chowdhury, B Haider. Evolution of the Supreme Court. Dhaka: University of Dhaka, 1990.

Hoque Ridwanul. “On coup d' etat, constitutionalism, and the need to break the subtle bondage with alien legal thought: A reply to Omar and Hossain” The Daily Star Law and Our Rights. [Dhaka] 29 Oct. 2005.

Hossain, Zakir and Omar, Imtiaz. “Constitutionalism, parliamentary supremacy, and judicial review: A short rejoinder to Hoque” The Daily Star Law and Our Rights. [Dhaka] 26 Nov. 2005.

Hossain, Zakir, and Omar, Imtiaz. “Coup d' etat, constitution and legal continuity” The Daily Star Law and Our Rights. [Dhaka] 17, 24 Sep. 2005.

Islam, Mahmudul. Constitutional Law of Bangladesh. Dhaka: Mullick Brothers, 2006.

Kamal, Mustafa. Bangladesh Constitution Trends and Issues. Dhaka: University of Dhaka, 1999.

Karzon, Sheikh Hafizur and Al Faruque, Abdullah. “Martial Law Regimes: Critically Situating the Validity of the Fifth and Seventh Amendments.” Bangladesh Journal of Law, 2.2 (1998): 152-192.

Sethi Anuranjan. “Basic Structure Doctrine Some Reflections”. Social Science Research Network. 12 July. 2008

Uddin, Md Moin. 2005: “Debates on Constitutional Amendment and Dilemma of the Doctrine of Basic Structure.” Law Vision. University of Chittagong. 2004-05: 28-31.

* Dr. M Jafar Ullah Talukder is an Assistant Professor, Department of Law, University of Chittagong

** M. Jashim Ali Chowdhury is a Lecturer in the Department of Law, University of Information Technology and Sciences (UITS), Chittagong.

Judging the 'Doctrine of Necessity': Lessons from Pakistan

Judging the 'Doctrine of Necessity': Lessons from Pakistan

M Jashim Ali Chowdhury

Published in the New Nation, Law and Justice, August 9, 2008

Avaialable online http://nation.ittefaq.com/issues/2008/08/09/news0428.htm

(Earlier this article was published in the 60 DLR (2008) July Issue, Journal Section at pp. 25-28)

Article 7 of the Constitution of the People's Republic of Bangladesh embodies what is known as the Doctrine of 'Constitutional Supremacy'. It is the declaration that the people are the repository of all powers and their exercise on behalf of the people shall be effected only under, and by the authority of, the Constitution (Article 7(I)]. The Constitution is the solemn expression of the will of the people, the supreme law of the Republic, and if any other law inconsistent with this Constitution shall be void to the extent of the inconsistency (Article 7(2)].

Unfortunately, in Bangladesh we could not follow the dictum of Article 7 always, whether willingly or unwillingly. The Constitution was manipulated and tailored to suit the ruler who happens to be on [he throne. It is aptly pointed out by Mr Justice Habibur Rahman that the Constitution has experienced evulsions and kinds of reformation in situ. Far reaching and radical changes had been introduced in the Constitution both during the time when it was functioning and during the time when it is not allowed to function." [Barrister Amirul Islam, "Status of an usurper; a challenge to the Constitutional Supremacy and Constitutional Continuity in Bangladesh", Chittagong University Journal of Law, Vol. 2 1997 pp .. 1-30 at p4]

Now in Bangladesh we are experiencing a regime the constitutional status of which is not clear at least beyond all reasonable shadow of doubt. It has been termed as a 'government of necessity'. Yet to some others it is an extra-constitutional, if not unconstitutional government. Gross and reckless violation of the Constitution by the Iajuddin Government from the very beginning of its life led the nation to January 11 Government. Burdened with the herculean job of politico-social reform the government had to take some drastic measures which are claimed by some not to be within its constitutional mandate. The plea of necessity has been emphasised strongly in response. It is in this context that 1 feel interested to review the existing literature on the Doctrine of Necessity basically with reference to Pakistan.

Doctrine of Necessity as applied by courts

The doctrine of state necessity had furnished common law courts with the "framework to validate extra-constitutional acts of lawful regimes. It has been frequently used by courts during the American Civil War in a series of cases e.g., Texas vs While 14 US (7 Wall) 700 (1868), Horn vs Lockhart 84 US (17 Wall) 570 (J 873): Thorington vs Smith 75 US (8 Wall) I (1868).

The Supreme Court of Pakistan started using the doctrine to uphold unconstitutional usurpation of power.

In Nusrat Bhutlo vs Chief of Army Staff, [1977 PLD (SC) 657) the Court examined the "total milieu" of the circumstances in which the extra-constitutional assumption of power occurred to determine the new regime's validity. Quoting extensively from General Zia-ul Haq's speech, the Court highlighted the general's professed commitment to hold elections and restore democracy at an early date. Before the decision the Army declared an indefinite postponement of the elections originally scheduled for October, 1977, in order to initiate and complete a process of accountability of the deposed regime for alleged abuse of power. This postponement did not dilute the then Chief Justice's confidence in the regimes commitment to restore democratic rule, and he legalised the accountability process by terming it necessary.

In Malik Ghulam Jilani vs Province of Punjab {PLD 1979 Lahore 564J the appointment of General Zia as President of Pakistan was called into question. It was held by the Lahore High Court that the appointment promoted the good of the people and was valid. At page 586 of the report it was held as follows:

"The imposition of Martial Law ………stands validated on

the doctrine of necessity and ttttt this principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra-constitutional measures is not only justified but is necessary."

In Zafar Ali Shah vs General Parvez Musharraf (PLD 2000 (SC) 869] the Pakistani Supreme Court again noted, "There was no remedy provided in the Constitution to meet the situation like the present one with which the country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle confidence in the regime's commitment to restore democratic rule, and he legalised the accountability process by terming it necessary.

In Malik Ghulam Jilani vs Province of Punjab PLD 1979 Lahore 564J the appointment of General Zia as President of Pakistan was called into question. It was held by the Lahore High Court that the appointment promoted the good of the people and was valid. At page 586 of the report it was held as follows:

"The imposition of Martial Law ……..stands validated on the doctrine of necessity and ttttt this principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra-constitutional measures is not only justified but is necessary."

In Zafar Ali Shah vs General Parvez Musharraf (PLD 2000 (SC) 869] the Pakistani Supreme Court again noted, "There was no remedy provided in the Constitution to meet the situation like the present one with which the. country was confronted, therefore, constitutional deviation made by the Chief of the Army Staff, General Pervez Musharraf for the welfare of the people rather than abrogating the Constitution or. imposing Martial Law by means of an extra constitutional measure is validated for a transitional period on ground of State necessity and on the principle that it is in public interest to accord legal recognition to the present regime with a view to achieving his declared objectives and that it is in the interest of the Community that order be preserved."

The legality of any extra-constitutional government has not been considered in Bangladesh until the High Court Division ruled on the 29th of August, 2005 that the 5th and 7th Amendments of the Bangladesh Constitution was illegal, an assumption of powers by Moshta que, Sayem, Zia and Ershad are un lawful. The judges said 'the violation of the Constitution was a gray legal wrong and remains so for a time to come. it cannot be legitimised.' The court, however, observed that due to the necessity of t e state, 'such a legal wrong can e condoned In certain circumstances'.

Scope of 'Necessity'

There is no fixed standard of determining necessity. Necessity has been claimed to prevail when ever and wherever it seemed convenient. Pakistani Courts invoked plea of necessity even to validate any 'work towards the achievement of the declared objectives' of a de facto regime. After the decision in Begum Nusrat Bhutto's case, Mr Justice Maulvi Mushtaq Hussain, Acting Chief Justice of the Lahore High Court was also appointed as the Acting Chief Election Commissioner. The appointment was challenged in the Supreme Court of Pakistan in Zulfiqar Ali Bhutto vs State (PLD 1978 SC 40]. The Court observed as follows:

"The reason underlying tttt is that once an 'extra Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation."

However, in Asma Jilani relying upon Lord Pearce's dissent in the Privy Council decision in Madzimbamutu the Court pronounced a catalogue of four independent grounds of "condonation" of acts of an illegal usurper regime; (I) all transactions which are past and closed, for, {sic] no useful purpose can be served by reopening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State. [Asma Jilani Asma Ji/ani vs Government of Punjab. 1972 PLD (SC) at 206]

Who determines 'necessity'?
The burden of determining necessity being a question of fact primarily resides with the executive. This has been the case as is shown historically. Very often it is shown to be based on mere subjective satisfaction and sweet will of a usurper. Usurper's personal appraisal of the situation led him to believe in the necessity of extra-constitutionalism. From Iskander Mirza to Pervez Musharraf, the excuse was more or less the same-"It is said that the Constitution is sacred. But more sacred than the Constitution or anything else is the country and welfare and happiness of its people." [Herbert Feldman, Revolution in Pakistan: A Study of the Martial Law Administration 214-15 (1967) Let us take the case of Pervez Musharraf.

* On 12th October 1999, General Pervez Musharraf, Chief of Anny Staff and Chairman, Joint Chiefs of Staff Committee, through an extra-constitutional measure took over the government and the affairs of the country.

* On the 20th of June, 2001, the Chief Executive issued Chief Executive's Order No. 3 of 2001 and the Preamble to the said Order read:

"Whereas it is expedient to provide for succession to the office of the President of the Islamic Republic of Pakistan and for matters connected therewith or ancillary thereto; Now, therefore, t.. .the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the said Order".

* On 9th April 2002, the Chief Executive and the President of Pakistan issued Chief Executive's Order No. 12 of 2002. The Preamble to the Referendum Order, inter alia, provides as: under.

It is imperative to consolidate the measures taken by the Chief Executive of Pakistan for the reconstruction of the institution of state for establishing genuine and sustainable democracy and it is in the supreme national interest to obtain a democratic mandate from the people of Pakistan through referendum for General Pervez Musharraf to continue to be the President of Pakistan."

Musharraf took over the charge of the government since "at that juncture the institutions of State stood seriously weakened and the democratic and moral authority of the government of the day stood gravely eroded.' He dismissed his President because he thought it 'convenient' and so he was 'pleased' to take the charge of the President until his successor enters upon the office (Nobody knows when his successor will enter the office). The Zafar Ali Shah court thought it necessary to allow Musharraf three years to return to democracy. But he thought it more necessary to continue in power to return to 'genuine and sustainable democracy'. Truly, 'necessity knows no bounds'.

Should the Judiciary have a say in this regard?
There are opposing views regarding this.

The first proposition relies basically on the coercive aspect of law. Court should not say anything about an alleged necessity as the Court does not possess the necessary coercive mechanism to enforce its appraisal. Moreover, there is inherent danger in daring to explore such adventure during a dictator's reign as is shown in Nusrat Bhutto. In Nusrat Bhutto, the court observed that the power of judicial review was available to it to examine the legality or otherwise of the actions of the government, and particularly the· Court would also see whether the necessity continued to exist or not. The response to this finding was that Provisional Constitution Order, 1981 was promulgated ousting the power and jurisdiction of the Superior Courts to judicially review actions of the Martial Law regime.

On the other hand, some strongly believe that a de facto regime cannot be given de jure status through any constitutional engineering [Barrister Amirul Islam, op cit at p. 16]. To them in a constitutional democracy, the Supreme Court is the guardian not only of the Constitution, but also of constitutional ethics and social values:

This view emphasises on "moral reading" of the Constitution rather than on mere constitutional textualism. (Ridwanul Hoque, "On coup d'etat, constitutionalism, and the need to break the subtle bondage with alien legal thought A reply to Omar and Hossain", published in the Daily Star, Law and Our Rights, October 29. 2005]

Yet some others suggest the court to follow a middle course. They strongly suggest that this being a 'political question' should be out of the court's purview.

They believe that "the Court will, thus, travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy making. The 'political thicket' objection sticks more easily in such circumstances. [Farooq Ahmed Khan Leghari vs Pakistan, PLD 1999 (SC) 57]

Again, designation of this as non-justiciable political question will insulate the courts from turbulent politics, deny the usurpers judicially pronounced validity and legitimacy, and facilitate the survival of the courts and the rule of law. (Mahmud, Tayyab, "Jurisprudence of Successful Treason : Coup d'etat & Common Law", Communternational Law Journal, Vol. 27, (1994) at p. 53].

The Constitution is what people put in it. Any action under the label of Necessity can never be legitimate if it makes its way only through a series of extra-constitutional measures against the will of the people. Governments whether transient, extra-constitutional or unconstitutional are always subject to judicial and popular judgment. To quote Dr. Farooq Hasan (Counsel for the petitioner in Qazi Hussain Ahmed vs General Pervez Musharraf, Constitution Petition No. /5 of 2002). 'its actions, whether executive or legislative, are always capable of being tested qua or de hors the Constitution. It has a fiduciary relationship in the discharge of functions of the State and no court of equity or of law can allow a trustee to gobble up the property of the trust and use it for his own benefit on fake and flimsy pretexts.' If the principle of 'Salus populi suprema lex' can provide legitimacy, it can take it away.

M. Jashim Ali Chowdhury is a Lecturer in the Department of Law, University of Information Technology and Sciences (UITS), Chittagong.

Reforming intelligence services : Some issues

Reforming intelligence services : Some issues
M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, Issue No 137, September 26, 2009

http://www.thedailystar.net/law/2009/09/04/index.htm

There is an inherent dilemma between democracy, which requires accountability, and intelligence, which requires secrecy. In our country, the democratic accountability of the executive to the legislature seems to be entirely exempted for intelligence services. As a result, intelligence agencies cannot be subjected to the same rigors of public or parliamentary debate or the same scrutiny by the media as other government agencies. Yet they being institutions within democracy, are responsible not to themselves, but to the elected representatives of the people, and, ultimately, to the populace. This argument gets stronger foothold when the allegations of illegal detentions, forceful interrogations and custodial violence against the 'dissidents' by the members of intelligence services become so rampant as to entree in the public a feeling that these agencies have placed themselves above the rule of law. So the dilemma may well be reduced to the question: 'How much secrecy is necessary to preserve the efficiency of intelligence?

The intelligence apparatus of Bangladesh
The intelligence agencies operating to protect internal or national security in Bangladesh include National Security Intelligence (NSI), Directorate of General Forces Intelligence (DGFI), Special Branch (SB) of the Police, the Special Security Force (SSF), the Defence Intelligence Units, Criminal Investigation Division (CID) of the Police, Intelligence Cell of the NBR and Intelligence Cell of RAB. The NSI, DGFI and SSF are directly accountable to the Prime Minister. The NSI was created by a Cabinet decision in 1972 and hence lacks a statutory basis. The SB is a part of the Police and reports to the Home Ministry. Government almost secretly allocates money for intelligence services, without subjecting the allocation to parliamentary oversight during the passing of national budget. Functionally they enjoy almost unrestricted power of policing over any citizen severely affecting his constitutionally guaranteed human rights. As for example, the SSF is empowered to arrest any person without warrant or to cause him death if there is 'reason to believe' that his movement or presence is prejudicial to the physical security of a VIP (Section 8 of the Special Security Force Ordinance, 1986). This again is exacerbated by Section 11 which prevents prosecution for such acts without executive sanction.
So the role of intelligence in a democratic society is too important to be left without any scrutiny or regulation. Though the very nature of the intelligence services emphasizes more on internal mechanisms of control than external ones, it is very dangerous to leave the oversight exclusively to them. Both internal and external (legislative and judicial) controls are necessary to ensure an effective oversight mechanism.

Parliamentary oversight
Though there are 38 Standing Committees of the Parliament on different Ministries including the Ministries of Defense and Home Affaires, there is none on the intelligence specifically. Creation of such a special committee may be a good choice. Although the exact reach of the committee may be debated, it must minimally and necessarily include the inspection of operations and activities, of sources and methods for obtaining information, and of the information produced by intelligence activities, including classified and especially sensitive information. Without these facilities, the parliamentary oversight is simply not going to be ineffective to detect and deter misconducts and illegalities. The 'secret budget' assigned to the intelligence agencies must see the light of the day in this committee. The lesson learnt from the US and UK is pertinent in this regard.

The US and UK model
In the United States, the two houses of Congress have independent oversight committees - the Select Committee of Intelligence in the Senate and the Permanent Select Committee on Intelligence in the House of Representatives. The committees have power of subpoena and can authorize appropriations for intelligence activities. The President is obliged by the General Congressional Oversight Provisions (50 U.S.C.A § 413) to ensure that they are kept fully and currently informed of the intelligence activities. Additionally the President ensures that any illegal intelligence activity is reported promptly. Further, the Director of Central Intelligence keeps the committees fully and currently informed of all covert actions of any department or agency.
Care has been taken to the concern that some intelligence information is too sensitive to share publicly. In general, only the identity of sources and the details of technical operations are withheld from the intelligence committees. The Director's reporting requirements are subject to two exceptions: First, his reporting shall be 'consistent with the protection from unauthorized disclosure of classified information'. And Secondly, information may be limited if the President determines that 'it is essential to limit prior notice to meet extraordinary circumstances'.
In UK, the Intelligence and Security Committee established by the Intelligence Services Act 1994 takes the role. It comprises nine members taken either from the House of Commons or the House of Lords. Five of the Members belong to the ruling party. They are appointed by the Prime Minister in consultation with the Leader of the Opposition. The Intelligence and Security Committee holds regular weekly meetings while Parliament is in session to discuss issues pertaining to the work of the three intelligence services. The Committee examines the role, function and management of the services, their tasking and targets, financial matters, staffing and structure.
The powers to obtain evidence are set out in Schedule 3 to the 1994 Act. Information defined as 'sensitive' can be withheld from the Committee if the information may lead to the identification of sources, of operational information on any past, present, or future operations. Additionally, the government does not have an obligation to disclose information to the Committee that was not asked for and the Committee has no express power to obtain information from anyone other than the Heads of the Agencies.
Both the models show that complexity and secrecy of intelligence makes it inevitable for the proposed parliamentary committee to conceive some inabilities and restraints. But what is ensured is the constant analysis and scrutiny of the performance of the agencies.

Judicial control
Theoretically the intelligence agencies are subject to the judicial process when they commit a crime under the Penal Code (e.g., Chapter IX, Offences by or relating to Public Servants) or any other law. Constitutional provisions governing the Fundamental Rights apply to their activities as well. In practice, however, intelligence activities rarely reach the courts. They only do so when scandals or media intervention shed light over some specific episode. And then, generally it is too late to repair the damages already caused.
Conversely, the road to judicial control of the intelligence has at least two stumbling blocks first, the lack of special judicial arrangement to deal with delicate issues involved in intelligence activities and secondly, the culpability of the revelation of classified information by security or intelligence agents. Yet the following two devices might be able to balance the governmental need to protect intelligence information and the right to a fair trial in order to preserve constitutional due process guarantees.

A special intelligence tribunal
A Special Tribunal like one created under the U.S. Foreign Intelligence Surveillance Act 1966 may be considered. This is a Special Court to review in secret the applications filed by intelligence services to conduct electronic surveillance within the United States for foreign intelligence purpose. Applications are heard and either granted or denied by the court composing seven Federal District Court judges designated by the Chief Justice of the United States Supreme Court. The law also provides for a court of review to hear appeals of denials of applications.
To handle classified information some special procedures are prescribed. One such example is the United States' Classified Information Procedures Act, 1980. Under the Act, classified information can be reviewed under the regular criminal procedures for discovery and admissibility of evidence before the information is publicly disclosed. Judges are allowed to determine issues presented to them both in camera and ex parte. The defendant is allowed to discover classified information and to offer it as evidence to the extent it is necessary to a fair trial and allowed by normal criminal procedures. On the other hand, the government is allowed to minimize the classified information at risk of public disclosure by offering unclassified summaries or substitutions for the sensitive materials.

Involvement of the Attorney General's Office
Involvement of the Office of Attorney General in the oversight structure may also be considered. Under the President's Executive Order on Intelligence, the US Attorney General is required to be involved in the review of various aspects of intelligence, especially concerning the implementation by the agencies of the provisions of the Executive Orders setting forth the duties and responsibilities of intelligence agencies. Within the Department of Justice, the Office of Intelligence Policy assists the Attorney General in carrying out this review function. The Intelligence Oversight Board attached to the Office of the President refers apparent violations of law to the Attorney General. Here the Department of Justice works as a Scanning House which signals green on the possible questions of law arising from a particular operation.

Conclusion
Given the political realities and trauma of the recently past emergency, the kinds of measures discussed above would constitute way ahead towards a more productive, responsive and accountable intelligence system. It should be remembered, however, that having controlling bodies by itself does not necessarily imply a strengthening of accountability over secrecy. The oversight mechanisms, especially the judicial and parliamentary, are futile if the government is not willing to cooperate with them. Public opinion, and therefore the media, may act as an outside control element supporting the controlling bodies in controversial actions or limitations. There is still a long way to go and we need vast public debates in this area.

M. Jashim Ali Chowdhury is a Senior Lecturer in the Department of Law, Northern University Bangladesh (NUB), Dhaka.