Pre-emptive(!) hartal: Ill-legal if not illegal

Star Judgment Review

Pre-emptive(!) hartal: Ill-legal if not illegal

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, May 29, 2010, Click to visit: http://www.thedailystar.net/law/2010/05/05/judgement.htm 

AS a student of constitutional law, I feel stunned to see the fashionable way in which the main opposition party in the Parliament has called for a hartal almost one and a half months before its observance. Perhaps this pre-emptive hartal (analogous to George Bush's pre-emptive self defence) might have been called with an illegitimate expectation that in the meantime some 'issues' may arise to justify it! However, this does not make me stunned, as I'm a bit familiar with the volatile power politics in my motherland. It is the fashionable way of calling hartal that makes me uneasy. At the end of write up I shall make it clear. For now I shall try to show the ill-legality of hartal as a political weapon with reference to a decision of the Supreme Court.

Abdul Mannan Bhuyian v. State 60 DLR (AD) 49
The background of this appeal may be summed up as follows:
A Division Bench of the High Court Division issued a suo moto rule in 1999 asking the Secretary Generals of AL and BNP and the Government of Bangladesh to show cause as to why the pro-hartal and anti-hartal activities being cognizable offence should not be stopped. Barrister Md Shawkat Ali Khan and Barrister Md. Jamiruddin Sircar were requested to brief the Court as amicus curie. The Secretary General of BNP appearing before the Court submitted that hartal was a historically recognized democratic right of the people to express their disapproval of governmental activities (Para 6). The High Court Division made its role absolute by declaring violence and coercion for or against hartal a criminal offence. Interestingly, nowhere in the judgment, calling for a hartal was declared unconstitutional. The stare decisis of the judgment was that all activities in favor or against the hartal were cognizable criminal offence and accordingly the law enforcement agencies and courts are bound to take legal action against those who would force anybody in favor or against hartal (Para 7-8).
The verdict was appealed against and the Appellate Division (AD) found that the HCD Bench disposing the suo moto rule was lacking in jurisdiction. As per Section 561A of the Code of Criminal Procedure, to take suo moto cognizance of a matter, the concerned HCD Bench must have a related issue pending before it. Since there was no such related issue pending before the concerned Bench, the AD found the Court lacking in jurisdiction (Para 19). Though it might have stopped at this stage, the Appellate Division continued into the merit of the HCD judgment in consideration of the constitutional implications and importance of the issue before hand.
The Appellate Division confirmed an earlier decision of the HCD in Khandker Mudarresh Elahi v. Government of Bangladesh 54 DLR 47. Hartal or strike per se enforced through persuasion unaccompanied by threat, intimidation, force or violence is a democratically recognized right of the citizens guaranteed under the Constitution (Para 34). In fact the AD was willing not to explore in the way of defining a new offence which is the job of the legislature. Separation of power demands some self restraint on the part of the judiciary. Since the provisions are already there in criminal laws for legal action against any person for any law and order infringement, there was no need to declare such infringements criminal offences (Para 43). Again, lest this should be taken as a green signal for calling hartal, the Appellate Division endeavored further to held that: “We have no hesitation in holding that enforcing hartal by force leading to violence, death and damage to the life and property of the citizens is not only illegal but also liable to be detested and punished as per law of the land in existence. These are already cognizable offences under the Penal Code and other penal laws of the land” (Para 34).
So it is accepted that the calling hartal is not illegal per se. But given the painful observation of the highest Court it definitely becomes ill-legal.

Hartal by public acclamation?
Before calling the hartal, the opposition leadership is reported to ask the public at large what type of program they wanted and the gathering overwhelmingly demanded calling of hartal. And so there was no alternative to 'respect' the will of the 'people'. To understand this way of calling hartal to its fullest extent let us go back to 1958. After the proclamation of Martial Law, President Iskander Mirza and Chief Martial Law Administrator Ayub Khan were in search of a way to adopt a new constitution for Pakistan. Mohammed Asgar Khan, once the Chief of the Air Force of Pakistan, is making a reminiscence of those initial Martial Law days (Quoted in A.K.M Shamsul Huda, The Constitution of Bangladesh, Volume 1, p. 102):
“The following day or the day after, I attended a meeting presided over by Iskandar Mirza, at which Ayub Khan, the Chief Justice of Pakistan and the newly appointed members of Ayub Khan's Cabinet were present. In this meeting, the Chief Justice of Pakistan Mohammed Munir was asked by Ayub Khan as to how he should go about getting a new constitution approved by the people. Justice Munir's reply was both original and astonishing. He said that this was a simple matter. In olden times in the Greek City States, he said, constitutions were approved by public acclaim and this could be done in Pakistan as well. Ayub Khan asked as to what was meant by 'Public Acclaim.' Justice Munir replied that a draft of the Constitution that has been published a few days earlier was to be followed by Ayub Khan addressing public meeting at Paltan Maidan in Dhaka, Moochigate in Lahore, Nistar Park in Karachi, Chowk Yadgar in Peshwar at which he was to hold up the draft constitution and seek public approval. The answer, the Chief Justice said, would definitely be in the affirmative and then there would be a constitution approved by Public Acclaim. Every one present in the meeting burst into laughing. Perhaps Ayub Khan laughed the loudest.”
Now, what should we do? Burst into laugh or tears?

The writer is Assistant Professor, Department of Law, Northern University Bangladesh (NUB), Dhaka.