Constitutional Analysis
The culture of impunity to be ended
M. Jashim Ali Chowdhury
Published in The Daily Star, January 14, 2012. Visit: http://www.thedailystar.net/law/2012/01/01/index.htm
Like any other law teacher, I start my constitutional law lectures with a usual question, 'What is a Constitution?' The instantaneous reply on the part of my novice law students almost always characterizes it as a collection of 'rules' organizing and regulating the state. A quite predictable answer indeed! Yet I ask it every time, as this known-in-advance reply gives me a breeding ground for further curious deliberations. Then for a while I get the chance to stare at them with a cozy smile. It sets them a back 'Did we say anything wrong?' In the meantime I start turning out pages from Bangladesh Constitution: Trends and Issues written by honorable Justice Mustafa Kamal. Coming to the page (iv), I start reading: “The Constitution is the Supreme Law of the Republic. The entire legislative, executive and legislative activities of the Republic are guided and regulated by the Constitution. In all countries where constitutionalism prevails, ordinary men and women are more or less knowledgeable about their country's constitution and are vigilant and vocal to assert and preserve the Constitution and their constitutional rights. They do not leave their constitution in the hands of the constitutional lawyers, judges and academicians. Each citizen is a defender of the Constitution, so that it becomes almost impossible to make an open breach of it.”
The gist of the quotation is that being the way of life the State has chosen for itself, the Constitution becomes constitution only by the understanding and voluntary acceptance of it by the people as a prescription for settling conflict within society. And it is this feeling of the people that we call constitutionalism - a doctrine of legitimacy of government and governance justifying all state action or inaction.
Coming to the unfortunate ground reality of third world's developing democracies, even the clear mandates - let alone the spirit, of the Constitution are not safe and guaranteed to be religiously observed. Take the case of Bangladesh, for example. Attempt to subvert the Constitutional spirit started immediately after the establishment of Bangladesh. On the early hours of August 15, 1975 Bangabandhu was brutally killed along with almost all of his family members. Khandoker Moshtaque Ahmed's sworn in as the President was clear violation of Article 55 of the Constitution which provided that the Vice-President would succeed the President if there is a vacancy until a new President was elected. Khandoker Moshtque Ahmed was not the Vice-President. Moreover, he was sworn in as the President of Bangladesh by the acting Chief Justice Syed A.B. Mahmud Hossain, though Form I of the Third Schedule of the Constitution required the President to be sworn in by the Speaker of the House. To 'tackle' the situation Mushtaq 'suspended' the Presidential succession and oath related articles of the Constitution! On August 20, Khandker Mushtaq Ahmed declared Martial Law with effect from August 15. The Constitution was 'allowed' to remain in force subject to the decree and orders of Mushtaq!
During the turmoiling 1st week of November, Mushtaq 'nominated' Justice Sayem as the President. Again, on November 29, 1976 Justice Sayem, due to his 'deteriorating health', declared Zia as the Chief Martial Law Administrator, a post unknown to any constitutional dispensation. On April 20, 1977 Zia was formally 'nominated' the President of Bangladesh. While even 'a Chairman of a Union Council had to be elected and couldn't be nominated, nomination could be made to the highest office of the Republic' (Moon Cinema Verdict High Court Division, p 6). Zia arranged a referendum 'unknown to the constitution or any other law of the land' to obtain 'confidence' of the people. He hammered a 99 percent of the total vote cast. Finally the Constitution 'revived' on April 10, 1979.
On 24th March, 1982 martial law was imposed for the second time by the then Chief of Army Lt Gen HM Ershad ousting the civil government of Justice Abdus Sattar. This time the Constitution was suspended. This Martial Law was kept in force for 4 years and 7 months. Lastly, there has been a disguised Military takeover under the garb of an emergency driven Caretaker Government in 2007. It passed after a credible election in December 2008.
It is observed that the justification all the supra-constitutional adventurers offered almost always followed the same prototype - the greater interest of the country, which was 'in the verge of catastrophe', made it incumbent upon them to assume full power, failing which the country would have been plunged into oblivion. However, the most unfortunate aftermath of each and every aggression on the Constitution is that it leaves behind a legacy of 'unconstitutionalism' which pose the democratic forces of the country to a critical challenge of upholding constitutionalism in its letter and spirit. They not only spoil the democracy but also corrupt the democratic mind setup of the body politic beyond recovery. Consequently politicians as well as the democracy fail again and on another dark night someone else comes out of the garrison 'to save' the nation.
To substantiate the claim, let us call back the memory of Pakistan's first Martial Law. On October 7, 1958, while suspending the upcoming election to the National Assembly and declaring Martial Law, President Iskander Mirza claimed: “For the last two years I have been watching with deepest anxiety, for the ruthless struggle for power, corruption and shameful exploitation of our simple people, honest, patriotic and industrious masses, the lack of decorum and the prostitution of Islam for political ends. The mentalities of the politicians are so low that I am unable any longer to believe that elections will improve the present chaotic internal situation.”
But the key player behind 'the ruthless struggle for power' was identified by his chief ally Ayub Khan on the morning of October 27, 1958 when Iskander Mirza was exiled to London: “The President had thoroughly exploited the weakness of the Constitution and had got everyone connected to the political life of the country utterly exposed and discredited. I do not think that he even seriously wanted to hold general election; he was looking for a suitable opportunity to abrogate the Constitution.”
Surprisingly, never in the history of Pakistan or Bangladesh, we have seen any single incident of punishing the violation of the Supreme Law of the Land. We didn't or couldn't try Ghulam Muhammad for dismissing the Nazim Uddin cabinet in 1953 and arbitrarily dissolving the legitimate Constituent Assembly of Pakistan in 1954. He enjoyed a 'voluntary retirement' due to ill health. We couldn't punish Iskander Mirza for illegal proclamation of Martial Law on October 7, 1958. He was sent to a consensual exile. Ayub Khan could not be touched for his 'October Revolution'. He got a peaceful retired life. Yahya Khan also remained out of accountability for his 1969-71 misdeeds. Neither Zia nor Ershad got any scratch for uprooting the constitution and constitutional government. Rather the first one is hailed as saviour of democracy while the later still dreams to be the President again. Parvez Musharraf is also enjoying an uninterrupted retirement. Prof. Iazuddin was allowed a normal exit while we could at least impeach him for snatching away the whole institution of caretaker government.
Whereas we usually and understandably punish the criminals for violation of criminal laws, we never think of punishing the perpetrators of violation of the Supreme Law of the Land itself! Should this culture of impunity continue? Yakub Ali J of the Pakistan Supreme Court strongly believed that it should not: “My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law making. May be that on account of his holding the coercive apparatus of the State, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers (Constitutional Glimpses of Martial Law, Dr. Aleem Al Razee, UPL, Dhaka, 1982, p. 42).”
That is why perhaps the Constitutions of Mexico of 1917 (in Article 136), of Ecuador of 1985 (in Article 114) and of Venezuela of 1916 (in Article 250) made clear provisions regarding the unconstitutional takeover of power. Whenever the original constitution is restored, the perpetrators of its violation shall be punished in charge of sedition. Of late, Bangladesh also has taken the same route. The Constitution (Fifteenth Amendment) Act 2011 has introduced a new Article 7A. Clause (a) to the Article 7A(1) provides that whoever abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article, shall be guilty of sedition. He shall be subject to highest punishment acknowledged in laws of Bangladesh. Not only that, any other person who abets, instigates, approves, condones, supports or ratifies such act shall also be subject to same liability.
Yet the question remains, 'May the letters of the constitution change the course of history?' True it remains, as it was, staging or not staging a military coup, itself being an extra-constitutional incident, does not depend on any constitutional provision. Ultimately it is the politics pure and welfare politics that can determine the course of the history. This, however, does not mean that the constitution should remain silent and leave its fate at the mercy of vicious politics. If Article 7A(1)(a) may not prevent a coup, it would at least make the end result a non-profitable one. Therefore the insertion of the Article is conceptually a welcome development.
The writer is Lecturer, Department of Law, University of Chittagong.
The culture of impunity to be ended
M. Jashim Ali Chowdhury
Published in The Daily Star, January 14, 2012. Visit: http://www.thedailystar.net/law/2012/01/01/index.htm
Like any other law teacher, I start my constitutional law lectures with a usual question, 'What is a Constitution?' The instantaneous reply on the part of my novice law students almost always characterizes it as a collection of 'rules' organizing and regulating the state. A quite predictable answer indeed! Yet I ask it every time, as this known-in-advance reply gives me a breeding ground for further curious deliberations. Then for a while I get the chance to stare at them with a cozy smile. It sets them a back 'Did we say anything wrong?' In the meantime I start turning out pages from Bangladesh Constitution: Trends and Issues written by honorable Justice Mustafa Kamal. Coming to the page (iv), I start reading: “The Constitution is the Supreme Law of the Republic. The entire legislative, executive and legislative activities of the Republic are guided and regulated by the Constitution. In all countries where constitutionalism prevails, ordinary men and women are more or less knowledgeable about their country's constitution and are vigilant and vocal to assert and preserve the Constitution and their constitutional rights. They do not leave their constitution in the hands of the constitutional lawyers, judges and academicians. Each citizen is a defender of the Constitution, so that it becomes almost impossible to make an open breach of it.”
The gist of the quotation is that being the way of life the State has chosen for itself, the Constitution becomes constitution only by the understanding and voluntary acceptance of it by the people as a prescription for settling conflict within society. And it is this feeling of the people that we call constitutionalism - a doctrine of legitimacy of government and governance justifying all state action or inaction.
Coming to the unfortunate ground reality of third world's developing democracies, even the clear mandates - let alone the spirit, of the Constitution are not safe and guaranteed to be religiously observed. Take the case of Bangladesh, for example. Attempt to subvert the Constitutional spirit started immediately after the establishment of Bangladesh. On the early hours of August 15, 1975 Bangabandhu was brutally killed along with almost all of his family members. Khandoker Moshtaque Ahmed's sworn in as the President was clear violation of Article 55 of the Constitution which provided that the Vice-President would succeed the President if there is a vacancy until a new President was elected. Khandoker Moshtque Ahmed was not the Vice-President. Moreover, he was sworn in as the President of Bangladesh by the acting Chief Justice Syed A.B. Mahmud Hossain, though Form I of the Third Schedule of the Constitution required the President to be sworn in by the Speaker of the House. To 'tackle' the situation Mushtaq 'suspended' the Presidential succession and oath related articles of the Constitution! On August 20, Khandker Mushtaq Ahmed declared Martial Law with effect from August 15. The Constitution was 'allowed' to remain in force subject to the decree and orders of Mushtaq!
During the turmoiling 1st week of November, Mushtaq 'nominated' Justice Sayem as the President. Again, on November 29, 1976 Justice Sayem, due to his 'deteriorating health', declared Zia as the Chief Martial Law Administrator, a post unknown to any constitutional dispensation. On April 20, 1977 Zia was formally 'nominated' the President of Bangladesh. While even 'a Chairman of a Union Council had to be elected and couldn't be nominated, nomination could be made to the highest office of the Republic' (Moon Cinema Verdict High Court Division, p 6). Zia arranged a referendum 'unknown to the constitution or any other law of the land' to obtain 'confidence' of the people. He hammered a 99 percent of the total vote cast. Finally the Constitution 'revived' on April 10, 1979.
On 24th March, 1982 martial law was imposed for the second time by the then Chief of Army Lt Gen HM Ershad ousting the civil government of Justice Abdus Sattar. This time the Constitution was suspended. This Martial Law was kept in force for 4 years and 7 months. Lastly, there has been a disguised Military takeover under the garb of an emergency driven Caretaker Government in 2007. It passed after a credible election in December 2008.
It is observed that the justification all the supra-constitutional adventurers offered almost always followed the same prototype - the greater interest of the country, which was 'in the verge of catastrophe', made it incumbent upon them to assume full power, failing which the country would have been plunged into oblivion. However, the most unfortunate aftermath of each and every aggression on the Constitution is that it leaves behind a legacy of 'unconstitutionalism' which pose the democratic forces of the country to a critical challenge of upholding constitutionalism in its letter and spirit. They not only spoil the democracy but also corrupt the democratic mind setup of the body politic beyond recovery. Consequently politicians as well as the democracy fail again and on another dark night someone else comes out of the garrison 'to save' the nation.
To substantiate the claim, let us call back the memory of Pakistan's first Martial Law. On October 7, 1958, while suspending the upcoming election to the National Assembly and declaring Martial Law, President Iskander Mirza claimed: “For the last two years I have been watching with deepest anxiety, for the ruthless struggle for power, corruption and shameful exploitation of our simple people, honest, patriotic and industrious masses, the lack of decorum and the prostitution of Islam for political ends. The mentalities of the politicians are so low that I am unable any longer to believe that elections will improve the present chaotic internal situation.”
But the key player behind 'the ruthless struggle for power' was identified by his chief ally Ayub Khan on the morning of October 27, 1958 when Iskander Mirza was exiled to London: “The President had thoroughly exploited the weakness of the Constitution and had got everyone connected to the political life of the country utterly exposed and discredited. I do not think that he even seriously wanted to hold general election; he was looking for a suitable opportunity to abrogate the Constitution.”
Surprisingly, never in the history of Pakistan or Bangladesh, we have seen any single incident of punishing the violation of the Supreme Law of the Land. We didn't or couldn't try Ghulam Muhammad for dismissing the Nazim Uddin cabinet in 1953 and arbitrarily dissolving the legitimate Constituent Assembly of Pakistan in 1954. He enjoyed a 'voluntary retirement' due to ill health. We couldn't punish Iskander Mirza for illegal proclamation of Martial Law on October 7, 1958. He was sent to a consensual exile. Ayub Khan could not be touched for his 'October Revolution'. He got a peaceful retired life. Yahya Khan also remained out of accountability for his 1969-71 misdeeds. Neither Zia nor Ershad got any scratch for uprooting the constitution and constitutional government. Rather the first one is hailed as saviour of democracy while the later still dreams to be the President again. Parvez Musharraf is also enjoying an uninterrupted retirement. Prof. Iazuddin was allowed a normal exit while we could at least impeach him for snatching away the whole institution of caretaker government.
Whereas we usually and understandably punish the criminals for violation of criminal laws, we never think of punishing the perpetrators of violation of the Supreme Law of the Land itself! Should this culture of impunity continue? Yakub Ali J of the Pakistan Supreme Court strongly believed that it should not: “My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law making. May be that on account of his holding the coercive apparatus of the State, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers (Constitutional Glimpses of Martial Law, Dr. Aleem Al Razee, UPL, Dhaka, 1982, p. 42).”
That is why perhaps the Constitutions of Mexico of 1917 (in Article 136), of Ecuador of 1985 (in Article 114) and of Venezuela of 1916 (in Article 250) made clear provisions regarding the unconstitutional takeover of power. Whenever the original constitution is restored, the perpetrators of its violation shall be punished in charge of sedition. Of late, Bangladesh also has taken the same route. The Constitution (Fifteenth Amendment) Act 2011 has introduced a new Article 7A. Clause (a) to the Article 7A(1) provides that whoever abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article, shall be guilty of sedition. He shall be subject to highest punishment acknowledged in laws of Bangladesh. Not only that, any other person who abets, instigates, approves, condones, supports or ratifies such act shall also be subject to same liability.
Yet the question remains, 'May the letters of the constitution change the course of history?' True it remains, as it was, staging or not staging a military coup, itself being an extra-constitutional incident, does not depend on any constitutional provision. Ultimately it is the politics pure and welfare politics that can determine the course of the history. This, however, does not mean that the constitution should remain silent and leave its fate at the mercy of vicious politics. If Article 7A(1)(a) may not prevent a coup, it would at least make the end result a non-profitable one. Therefore the insertion of the Article is conceptually a welcome development.
The writer is Lecturer, Department of Law, University of Chittagong.
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