The dilemma of constitution reprint

The dilemma of constitution reprint
M. Jashim Ali Chowdhury

I don’t know what instinct haunts all our rulers. Why do they always make a simple math tough? An enlightened judicial activism on the part of the Supreme Court has been badly injured by some people’s over-enthusiasm. Presently, we don’t know which provisions of the reprinted constitution are valid and which are not, writes M Jashim Ali Chowdhury

Published in the Daily New Age; April 15, 2011
Link: http://newagebd.com/newspaper1/op-ed/15412.html


NOWADAYS I face a lot of curious questions from my students. Be it in my class of jurisprudence or comparative law, students somehow manage to raise the issue of the constitution of Bangladesh. ‘Sir, do we have any constitution now? If yes, which one? The one before reprint or the one after it?’ A strange question to be answered with phrases like ‘perhaps,’ ‘maybe,’ ‘probably’, etc. The academic in me prompts to say, ‘Yes, we have one — the one after reprint.’ But the members of the special parliamentary committee on constitutional amendment have made the answer crooked. Moreover, I have not seen how the reprint looks like and don’t know what it contains. I feel like one of those six blind men who were asked to say how an elephant looked like.

The accepted principles of constitutionalism consider a judgement of the Supreme Court to be mandatory. Judicial review of constitutional amendments has been jurisprudentially established. Previously, the 8th amendment was challenged and so were the 10th, 12th, 13th and 14th amendments. While the challenge to the 8th amendment was upheld, challenges to the 10th, 13th and 14th amendments were heard and decided on merit. Nowhere in those cases were the legality and desirability of judicial review of constitutional amendments questioned. Rather in compliance with the Supreme Court verdict, the constitution was reprinted after the 8th amendment case. Article 111 of the constitution (binding force of judicial decisions) is not a directory one to make a judgement of the Supreme Court directory. Hence, whatever is said, our concept regarding the legality of reprint as per the 5th amendment verdict is crystal clear. Reprint was the only course of action. At the same time, we don’t deny the necessity of an amendment in the form of a thorough review of the constitution. A court-ordered reprint will not remove the constitutional imbalance created by the military rulers. Hence, a parliamentary polishing is a dire necessity.

But what do we see, or at least read and hear, after the reprint? Well in advance, the prime minister declared that Bismillah and state religion would be retained. Was she speaking of the upcoming reprint? Or was she giving a blue print of the upcoming amendment? As the leader of the legislature she is entitled to give a policy indication to the legislators regarding a future constitutional amendment. She may politically decide to re-insert Bismillah by amendment. But as the head of the executive, she was not legally entitled to make such a direction regarding an ensuing reprint of the constitution, I’m sure. The executive is simply to execute a court order. It cannot make even a trivial change in the dictum of the Supreme Court (Tahera Nargis Syed vs. DIG Prison 41 DLR 508; Para 23). In the 5th amendment verdict, the court nowhere condoned the insertion of Bismillah in the preamble. How could the prime minister condone this? Not only that. There are allegedly around 60 changes in different places of the constitution regarding which the Supreme Court held nothing! Now it may, in all fairness, be asked whether, side by side with the legislature, the executive may also amend the constitution.

If someone challenges the reprinted version, the court would surely denounce many of the reprint innovations. Until then we have a constitution—to be seen by 500 people only—the authenticity and correctness of which is not beyond doubt. If no one challenges it, we have to look towards parliament. This again puts us in another puzzle. Recently, I watched lawmaker Abdul Matin Khasru in a live TV talk show. He happens to be a member of the special parliamentary committee entrusted with the task of drafting the proposed constitution amendment bill. With all his wisdom, he advised us not to be worried since the reprinted version of the constitution is a draft on the basis of which they would work further. However, this proposition does not solve the problem. Rather, if taken seriously, it may lead us to further obscurity.
Theoretically, a constitution is always a draft for the legislature that reserves every right to amend any of its provisions (except the basic structures, some say) anytime, subject to the procedure prescribed by the constitution itself. However, if we take the reprinted constitution as a ‘mere draft’ for the aid of the parliamentary committee, things become knotty. Then the operative constitution of the country will be the previous one. And if the previous one is still operative, surely parliament will need a referendum [as per the invalidated Article 142 (1A)] to amend the preamble and some other articles. Is Abdul Matin Khasru ready to consume the proposition? Would the ruling party venture this path?
I don’t know what instinct haunts all our rulers. Why do they always make a simple math tough? An enlightened judicial activism on the part of the Supreme Court has been badly injured by some people’s over-enthusiasm. Presently, we don’t know which provisions of the reprinted constitution are valid and which are not. I advised my students to wait and see. What else could I say?

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M Jashim Ali Chowdhury is a lecturer at the Department of Law, Chittagong University.

Re Prof. Yunus: Where 'Law' duels 'Dignity'

Judgment Review

Re Prof. Yunus: Where 'Law' duels 'Dignity'
M. Jashim Ali Chowdhury


Published in the Daily Star, Law and Our Rights, June 04, 2011
Link: http://www.thedailystar.net/law/2011/06/01/index.htm

For obvious reasons the W/P No 1890 of 2011 i.e., Prof Muhammad Yunus v. Bangladesh got sparking media sensation and public gaze. It is perhaps the most classic example so far in Bangladesh which painfully exposed the judiciary to a burden of doing justice to 'expectation' rather than to 'law'. Prof Yunus's right to be dealt with as per law was overshadowed by people's expectation to see him dealt with dignity and honour. This write up is an attempt to review the High Court Division's judgment where avoiding 'what ought to be', the court simply brought out the 'what was'. Page numbers of the full text judgment has been put within brackets.
Dr. Yunus and the Grameen Bank
Grameen Bank was established under the Grameen Bank Ordinance, 1983. In accordance with the original Section 14 of the Ordinance, the Ministry of Finance and Planning appointed Prof. Yunus as the Managing Director of the Bank in 1983. Subsequently, Section 14 of the Ordinance was amended by the Grameen Bank (Amendment) Act, 1990 providing that the Managing Director shall be appointed by the Board of Directors with prior approval of Bangladesh Bank. Accordingly, in 1990 the Board of Directors appointed Prof. Yunus as the Managing Director a fresh with the required approval from Bangladesh Bank.
Subsequently, in 1993 the Board adopted the Grameen Bank Service Regulations. It determined 60 as the age of retirement for the permanent workers of the Bank. In 1999, in the 52nd meeting of the Board, the issue of Prof. Yunus's retirement was raised since he was above 60 then. This time the Board resolved by a resolution that since he had been appointed by the Board itself, the age limit of 1993 Regulations would not be applicable to him.
Later on in 1999 Bangladesh Bank observed that its approval had not been obtained regarding the 1999 Resolution. Thereafter the Board made the Regulations of 2001 regarding the terms and conditions of service of subsequent appointees as the Managing Director. In its next Report of 2001, Bangladesh Bank did not make any observation regarding the issue. Lastly, it is in 2011 that after some corruption allegations against Grameen Bank, the present government discharged Prof. Dr. Yunus from the post of Managing Director of Grameen Bank on the excuse of passing 60 years age limit.
Arguments for Dr. Yunus
The most laudable point was that the Nobel Peace Laureate was removed from his office against thousands years of civilization and public interest and as such he should be treated not only in accordance with law, but also with honour, respect and dignity (Dr. Kamal Hossain arguing, p 8).
Second, the age of retirement being not mentioned in both the 1983 Ordinance and his appointment letter of 1990, he had the right to continue his service as long as he wishes (p 7). The Service Regulations of 1993 and 2001 being subordinate legislation under the Ordinance, they were not retrospectively applicable to his service (Barrister Rokon Uddin Mahmud arguing, p 10).
Third, Bangladesh Bank had a very limited role to play under Section 14(1) of the Ordinance except only to grant prior approval to the appointment of the Managing Director. The Ordinance did not otherwise confer any power to Bangladesh Bank to dictate or determine the terms and conditions of the service of the Managing Director including the age of retirement (p 7, 9, 11).
Fourth, Advocate Mahmudul Islam submitted that by allowing Prof Yunus to function as the Managing Director for about 11 years, the government impliedly approved his appointment creating a vested right in him to continue and as such now the government was estopped from relieving him from his post on the plea of expiry of his retirement age (p 10).
Fifth, no notice had been served by any authority or person upon Dr. Yunus. It not only constituted malice in law, but also malice in fact violating the principle of natural justice (p 9).

The Court responds
Hearing the Attorney General on behalf of the government, the Court proceeded straight to the demand for treatment not only in accordance with law, but also with honour, respect and dignity. And it remained stiffly cold, “Any question of the propriety or legacy of the Nobel Prize is in no way involved in the writ petition (p 12).”

Then turning to the legal issues involved the Court took up the question whether the 1993 Regulations would apply to Dr. Yunus. The Court answered yes on the following grounds -
1. Section 14(4) of the Ordinance specifically envisages that the Managing Director shall serve under the Bank on such terms and conditions as may be prescribed by regulations (p 19).
2. Again the Regulations of 1993 apply to all 'worker' of Grameen Bank. As per the Regulation 2.1(Cha) 'worker' means all permanent and temporary officers and employees of the Bank which includes the Managing Director as well.
3. Moreover, Clause 2.0 of Prof. Yunus's appointment letter of 1990 clarifies that he shall be treated as a regular employee of Grameen Bank (p 18).
Next the validity of the 1999 Resolution exempting Dr. Yunus from the scope of the Regulations was taken up. The Court found the submissions made by Dr. Yunus's Advocates misconceived, unreasonable and irrational for following reasons
1. The Service Regulations, 1993 is a subordinate legislation under the Ordinance, but the resolution is simply a decision having no force of a law (p 21)
2. It is not conceived in any judicial system, which upholds rule of law that by any resolution or decision any law can be repealed, amended, suspended and made applicable or inapplicable (p 22).
3. Alternation of the terms and conditions of the petitioner's service by the 1999 resolution obviously required prior approval of Bangladesh Bank as per Section 14(1) of the Ordinance which was not taken (p 22).

The objections regarding retrospective effect of the 1993 Regulations were also overruled by the court. It was one of the conditions of Prof Yunus's 1990 appointment that his service would be regulated by the regulations to be made in accordance with the Ordinance (p 16). Having accepted the condition and enjoyed advantages and benefits thereunder, he was estopped from raising any objection regarding retrospective effect (p 20). Moreover, it is settled by case law that subordinate legislation may get retrospective effect if authorized by the parent law. The retrospective effect of the 1993 Service Regulations was envisaged by Section 14 of the Ordinance (p 29).

Regarding Natural Justice concern, it was found that the issue was being placed before the Government since 1999 (p 24). Therefore for not issuing any notice, Prof. Yunus was not prejudiced. The fact of the expiry of his retirement age being admitted, service of any notice would not serve any fruitful purpose and so it was not reasonably required by the Principle Natural Justice (p 25).

As to the implied approval, it was found that the appointment of 1990 was duly approved by the Bangladesh Bank. But after alteration of the terms and conditions of the petitioner's service by the resolution of 1999, even no proposal for such approval was placed and consequently the plea of 'implied approval' or 'approval by conduct' to such imaginary appointment should have no basis (p 23). It is a long established principle of law that there can be no estoppels or waiver against any statutory provisions (p 25)
A silent expectation remains unfulfilled
The writ petition was summarily rejected. The Appellate Division confirmed the High Court Division verdict in toto and hence now Prof. Yunus is none for Grameen Bank. Presumably the Court had to do justice though the heaven falls and it has done so. Yet a silent expectation remains unfulfilled. Was there no other way 'outside the court' to uphold the dignity of the Nobel Laureate? Or could the Court have passed one or two suggestive comments as to what should be done, especially when now-a-days the court frequently makes such urges to the policy makers? The answer seems to be beyond our laymen's acumen. We only see the doctrine proved, 'Law is not the respecter of persons.' Sometimes not even of one who may be respected!



The writer is Lecturer, Department of Law, University of Chittagong.