On the brink of opposition and sedition
M Jashim Ali Chowdhury
(Published in the Daily Star, Law and Our Rights; 6 April 2013;
Url: http://www.thedailystar.net/news/on-the-brink-of-opposition-and-sedition
The Honorable Leader of Opposition seems to be seriously confused on the demarcation line of Opposition and Sedition. Some two years back, the Leader of Opposition threatened to ‘throw away’ the Constitution. While lecturing on Constitutional Law, I was highly critical of such a blasphemy to the Constitution, the supreme law of the land and the supreme edifice of the spirit of Liberation War. Then one of my students stood up and sought the floor. As I am, I gave him the floor with a nod of welcome. And I was quite happy with the maturity of his vision and wisdom. The speech was no doubt ‘a bit harsh,’ he acknowledged. Yet he was interested in taking it as a ‘political’ one and urged the class to consider it within the ambit of ‘Freedom of Expression and Opinion’ and as a critic of the government and governance in general. Quite relevantly, he brought into attention the newly inserted Article 7A of the Constitution.
The newly inserted Article 7A seeks to bring to book the perpetrators of unconstitutional intervention into politics. Introduction of such a Clause in the Constitution was a welcome development especially in light of the celebrated 5th and 7th Amendment judgment of the Supreme Court. But the grey area of the provision was in Clause (1)(b). There the Constitution wished to travel beyond the actual abrogation, suspension or repeal of the constitution. Now the subversion of ‘confidence, belief or reliance of the citizens to the constitution’ by ‘show, or use of force, or by any other unconstitutional means’, will also have to be accounted for.
My extremely brilliant student quite rightly raised a note of doubt on this point. His concern was regarding the scope of possible abuse of this by the government of a given time to suppress the opposition. Apparently, the provision seeks to prevent the undemocratic forces from destabilizing the democracy and thereby preparing the stage for an unwelcome military coup by using their democratic freedom of speech and expression. However, being in apparent conflict with Article 39 Freedom of Expression, the exact reach of the Clause remains undefined and quite likely to be abused. Therefore, he called for a careful, liberal and steady attitude to be shown towards the alleged offences under Article 7A(1)(b). The comments, gestures and behavior critical of the constitution should be seen within the widest possible ambit of Article 39 Freedom of Expression and only sparingly the crime of sedition be alleged, he argued. Otherwise, every criticism of, and every movement against, the government of the day would be labeled with the offence of sedition against the State and the democratic process would be at stake.
I as well as the whole class was held spell bound and overwhelmed. I took the floor, thanked him and decided to add something more. I had a clear justification for Article 7A(1)(b). I asked the students to take the offence of ‘Contempt of Court’ and compare it with the newly introduced offence of ‘Contempt of Constitution’.
The approach taken by the courts in contempt of court cases may come to aid in realizing the philosophy underneath the Article 7A(1)(b). Of course, Article 39 freedom of speech and expression remains there to allow hard, but constructive, criticism of the process, personnel or judgment of the Court in general. But no one has any right to flout the mandate of law or the authority of the Court under the cloak of freedom of speech and expression or the freedom of the press. Now I ask, while undermining the institutional prestige of a Court is jealously protected, should the constitutional edifice remain unprotected from unjustified attack and criticism?
Yes, the courts almost ‘always ignore by a majestic liberalism the trifling and venial offences’. ‘The dogs may bark, the caravan will pass,’ as the Court says it (See- State v. Chief Editor Manabjamin and another 57 DLR (2005) 359; para 356). Yet nobody denies necessity of the law of contempt itself. If this is the case with Contempt of Court, why should the approach on ‘Contempt of Constitution’ be not so?
Explaining the arch rival ideologies of the major political forces of the day and the unfortunate U-turn we took in 1975, I asserted that while insertion of such a clause sounds good, the enforcement will be extremely difficult one. But I stood firm on my belief that while a threat to ‘throw away’ the Constitution may escape the reach of law for the time being, it will not be able to do so in some near or distant future. Of course, the dogs will bark and the Caravan will pass. But sometimes the pye-dogs need be killed to sweep the roads, I concluded.
Today, I am quite disturbed to see my assertion coming true so early. This time the Leader of the Opposition has called upon the military to raise arms against the constitutional system of the country (!). I just recall a quote from the Pakistan Observer, Dhaka, October 15, 1958:
“It was the Constitutional responsibility of the President to call a halt to that was leading the country to disintegration. If he had not done so, it would have been the Army’s responsibility to do it because in the final analysis the Army was to maintain the law and order in the country and to save it from ruination(!)”
Dear reader, it was none other than Ayub Khan addressing a press conference in Karachi justifying his military coup (See Constitutional Glimpses of Martial Law, Dr Aleem Al Razee, UPL, Dhaka, 1982, p 32)! The Honorable Leader of the Opposition must know that days of Ayub Khan are gone and indemnity that could easily be enjoyed in 1970s may not be so easy to reap in 2013.
The newly inserted Article 7A seeks to bring to book the perpetrators of unconstitutional intervention into politics. Introduction of such a Clause in the Constitution was a welcome development especially in light of the celebrated 5th and 7th Amendment judgment of the Supreme Court. But the grey area of the provision was in Clause (1)(b). There the Constitution wished to travel beyond the actual abrogation, suspension or repeal of the constitution. Now the subversion of ‘confidence, belief or reliance of the citizens to the constitution’ by ‘show, or use of force, or by any other unconstitutional means’, will also have to be accounted for.
My extremely brilliant student quite rightly raised a note of doubt on this point. His concern was regarding the scope of possible abuse of this by the government of a given time to suppress the opposition. Apparently, the provision seeks to prevent the undemocratic forces from destabilizing the democracy and thereby preparing the stage for an unwelcome military coup by using their democratic freedom of speech and expression. However, being in apparent conflict with Article 39 Freedom of Expression, the exact reach of the Clause remains undefined and quite likely to be abused. Therefore, he called for a careful, liberal and steady attitude to be shown towards the alleged offences under Article 7A(1)(b). The comments, gestures and behavior critical of the constitution should be seen within the widest possible ambit of Article 39 Freedom of Expression and only sparingly the crime of sedition be alleged, he argued. Otherwise, every criticism of, and every movement against, the government of the day would be labeled with the offence of sedition against the State and the democratic process would be at stake.
I as well as the whole class was held spell bound and overwhelmed. I took the floor, thanked him and decided to add something more. I had a clear justification for Article 7A(1)(b). I asked the students to take the offence of ‘Contempt of Court’ and compare it with the newly introduced offence of ‘Contempt of Constitution’.
The approach taken by the courts in contempt of court cases may come to aid in realizing the philosophy underneath the Article 7A(1)(b). Of course, Article 39 freedom of speech and expression remains there to allow hard, but constructive, criticism of the process, personnel or judgment of the Court in general. But no one has any right to flout the mandate of law or the authority of the Court under the cloak of freedom of speech and expression or the freedom of the press. Now I ask, while undermining the institutional prestige of a Court is jealously protected, should the constitutional edifice remain unprotected from unjustified attack and criticism?
Yes, the courts almost ‘always ignore by a majestic liberalism the trifling and venial offences’. ‘The dogs may bark, the caravan will pass,’ as the Court says it (See- State v. Chief Editor Manabjamin and another 57 DLR (2005) 359; para 356). Yet nobody denies necessity of the law of contempt itself. If this is the case with Contempt of Court, why should the approach on ‘Contempt of Constitution’ be not so?
Explaining the arch rival ideologies of the major political forces of the day and the unfortunate U-turn we took in 1975, I asserted that while insertion of such a clause sounds good, the enforcement will be extremely difficult one. But I stood firm on my belief that while a threat to ‘throw away’ the Constitution may escape the reach of law for the time being, it will not be able to do so in some near or distant future. Of course, the dogs will bark and the Caravan will pass. But sometimes the pye-dogs need be killed to sweep the roads, I concluded.
Today, I am quite disturbed to see my assertion coming true so early. This time the Leader of the Opposition has called upon the military to raise arms against the constitutional system of the country (!). I just recall a quote from the Pakistan Observer, Dhaka, October 15, 1958:
“It was the Constitutional responsibility of the President to call a halt to that was leading the country to disintegration. If he had not done so, it would have been the Army’s responsibility to do it because in the final analysis the Army was to maintain the law and order in the country and to save it from ruination(!)”
Dear reader, it was none other than Ayub Khan addressing a press conference in Karachi justifying his military coup (See Constitutional Glimpses of Martial Law, Dr Aleem Al Razee, UPL, Dhaka, 1982, p 32)! The Honorable Leader of the Opposition must know that days of Ayub Khan are gone and indemnity that could easily be enjoyed in 1970s may not be so easy to reap in 2013.
The writer is Assistant Professor, Department of Law, University of Chittagong.
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