The dilemma of constitution reprint
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?
_________________________
M Jashim Ali Chowdhury is a lecturer at the Department of Law, Chittagong University.
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?
_________________________
M Jashim Ali Chowdhury is a lecturer at the Department of Law, Chittagong University.
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