In Perspective: The Fifth Amendment Judgment and Reprinting the Constitution

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“We are under a Constitution, but the Constitution is what the judges say it is…

— Charles Evans Hughes, 11th Chief Justice of the United States.[1]

ADNAN M L KARIM

Barrister-at-Law

The Supreme Court has declared the Fifth Amendment to the Constitution illegal and void ab initio; condemning military rules in explicit language[2]. Against this backdrop, a special parliamentary committee has been formed which is understood to have the responsibility of proposing constitutional reform to Parliament, taking into consideration this judgment.

In this respect, the Ministry of Law, Justice and Parliamentary Affairs has taken steps to reprint the Constitution in light of the decision of the Supreme Court. Different views have been expressed on the issue of reprinting the Constitution after the Fifth Amendment judgment. Some observers have expressed the view that this should be done after Parliament has amended the Constitution as per the judgment whereas others have noted that the Constitution was reprinted without going through Parliament after the judgment of the Eight Amendment case[3] and the same precedence should be followed now. However, there is more to this than just the matter of reprinting the Constitution. Both the judgment of the Appellate Division and the High Court Division run almost 500 pages and will be regarded as landmark decisions in our Constitutional jurisprudence along with the Eight Amendment Case. The matters related to the judgment are complicated and technical in nature and need to be critically examined to understand the issues that have far-reaching implications. All martial law instruments are undoubtedly illegal under the Constitution and therefore cannot change the Constitution but at the same time the question is whether Parliament can cure that fault? The Court answered it in the negative. Had there been no Act of Parliament (in the form of Constitutional amendment) ratifying the martial law instruments, the answer would have been obvious.

Judicial Review of Act of Parliament:

The Constitution of Bangladesh states that the Prime Minister shall exercise the executive power of the Republic[4] and the legislative powers shall be vested in Parliament[5]. The Constitution does not say anything about vesting of judicial power, unlike the U.S Constitution[6]. Furthermore, there is no explicit authority given to any court to invalidate an Act of Parliament in the Constitution. However, the sub-continental Superior Courts have invalidated Acts of Parliaments following principles of constitutional law as applied in the famous decision by Chief Justice Marshall in Marbury Vs Madison[7] . Since both the United States and India are federations, invariably the Superior Courts in those jurisdictions are called on to decide when there appears to be any conflict between state and federal legislation or a question of legislative competence arises. Our Courts have taken the view that not only that they have the authority to challenge decisions of the executive branch but also that of the legislature by invalidating any Act of Parliament if it violates the Constitution even if it is an amending Act[8].

High Court Division’s power of Judicial Review:

The power of judicial review of the High Court Division is evoked under Article 102 of the Constitution. Article 102(1) empowers the High Court Division to give directions or orders to any person or authority as may be appropriate to enforce any of the fundamental rights conferred in Part III. For cases other than Fundamental Rights, Article 102 (2) empowers the High Court Division to make an order:

  1. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do;
  2. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect;

iii. directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner or

  1. requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

These are analogous powers that the English Superior Courts had under the prerogative writs of mandamus, certiorari, prohibition, habeas corpus and quo-warranto. Relief in the form of ordinary declaration and injunction is available seperately to the English Courts[9], but such power is not separately granted by the Constitution but implicit within the language of Article 102 (2). Therefore, if an Act of Parliament were to be challenged under this Article then it is most likely to be challenged by way of Certiorari in the form of Article 102(2) (a) (ii).

Scope of remedy granted:

Certiorari is now called quashing order. A quashing order is an order of the High Court by which decisions of an inferior court, tribunal, public authority or any other body of persons who are susceptible to judicial review may be quashed. If the decision is quashed, the decision maker may be free to re-consider it and as long as the error of law is not repeated and no other error committed, may reach the same decision. Where the court makes a quashing order in respect of the decision to which the claim relates it may remit the matter to the decision maker and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. Alternatively, where remitting the matter would serve no purpose, the court may take the decision itself[10]. The validity of an Act of Parliament will not be questioned by the courts[11] otherwise than by way of a declaration that the Act is incompatible with European Union law or by way of a declaration given pursuant to the Human Rights Act, 1998 that the Act of Parliament is incompatible with the convention for the Protection of Human Rights and Fundamental Freedoms.

The English courts can issue a declaration of incompatibility if any legislation is found to be incompatible with the Human Rights Act, 1998 (“HRA”). If found incompatible, the declaration is made pursuant to s.4 HRA and then the relevant Minister may initiate a Parliamentary process to remedy the defect in the legislation. A declaration does not have the effect of making primary legislation invalid. Parliament remains sovereign in the HRA, but the Government may take remedial action to amend the legislation. Subordinate legislation declared incompatible can be quashed by a higher court. This declaration of incompatibility does not have any effect on the validity, continuing operation or enforcement of legislation. Similarly, even inferior courts in England and Wales are under an obligation to rely upon a rule of European Community (“EC”) law that is irreconcilable with national law. The EC law has primacy over domestic law. In England and Wales, if an Act of Parliament, statutory instrument or common law precedent is irreconcilable with EC law, all courts and tribunals are to “dis-apply” any provision of that Act, instrument or common law. The offending Act or instrument is not struck down or quashed, but merely becomes unable to be applied.

The Constitution does not specify the nature of relief that may be granted for breach of Fundamental Rights and the scope is wide[12] since “any” appropriate order or direction may be given to enforce any of the Fundamental Rights. For all other instances, Article 102(2) specifies the scope and range of remedy available from the High Court Division. Article 102(2) (a) (ii) does not appear to give the High Court Division necessary power to strike down or quash any Act of Parliament in the form of Certiorari. Since Parliament does not fall under the definition of statutory public authority[13], such writ may be not be issued against Parliament. This sort of relief does not seem available from the language of Article 102(2) (a) (ii). Even if by stretching the definition of statutory public authority Parliament is included, the remedy available is in the form of a “declaration” from the Court that any act (action) done or proceeding taken by Parliament has been done or taken without lawful authority and is of no legal effect. It is difficult to contend how the jurisdiction of the High Court Division may be evoked under Article 102(2) (a) (ii) in the nature of Certiorari to strike down or nullify an Act of Parliament, let alone an amending Act, so as to cause it to be removed from the statute book.

Review under the supremacy clause:

Article 7 is the supremacy clause in our Constitution. It states:

Article 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution

(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

Fundamental rights are entrenched by a similar provision-

Article 26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.

(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.”

There is no separate provision in our Constitution that confers the High Court Division power of judicial review other than Article 102. The supremacy clause is as much of a warning to Parliament as it is guidance to the Courts. Nevertheless, invariably it is up to the Courts to uphold and apply the supremacy clause in a case of dispute and in such a case, it is submitted that the power granted by Article 7(2) should be deemed separate and distinct from the powers granted by Article 102(2). The types of remedy to be provided by the Court under Article 102 (1) and 102 (2) are well demarcated. When Article 7(2) is interpreted to give the High Court Division power to review law, such a power would be limited to a “finding” of or “holding” such a law to be in violation of the Constitution and the nature of reliefs under Article 102 (2) is not available.

Article 13 of the Constitution of India correspondents to Article 26 of our Constitution and the word “void” is used in both of these articles as well as in Article 7(2) of our Constitution. Indian Courts decided that the word void in Article 13(1) and (2) does not mean “repealed”[14], nor is a law declared void under Article 13(1) and (2) obliterated from the statute book; it cannot be said that they are still-born and non-est.[15]. The Indian Courts adopted the theory known as the theory of eclipse, which is based on the notion that a law which violates fundamental rights is not a nullity or void ab initio, but remains unenforceable and it implicitly recognizes the distinction between a law void for legislative competence and a law void for violating the Constitution[16].

The authorities in the United States take the view that while a law on a topic not within the competence of a legislature was a nullity, a law on a topic within its competence but violating Constitutional prohibitions was only unenforceable. The consequence of this is that a law void of legislative competence would have to be re-enacted but one which violates Constitutional limitation would become effective once those limitations were removed[17].

The word “void” means having no legal effect[18]. Therefore if an Act of Parliament or parts thereof are found to be offending the Constitution either under the supremacy clause or the Fundamental Rights clause, that Act or its parts will not be removed from the statute book pursuant to the Court’s order since it will amount to “repeal”. Rather, that Act or the offending part will simply cease to have any legal effect or force[19]. Once there is such a “finding” by the Court, it would be up to Parliament to repeal or amend the law to conform to the judgment of the Court and bring the offending Act in line with the Constitution. As long as that is not done, the Act or its offending part simply would remain suspended and unenforceable. Pending such repeal or amendment by Parliament, if the matter relates to breaches of Fundamental Rights, the High Court Division may give any relief that may be appropriate to achieve enforcement of those rights; and for non-fundamental rights cases, can only give relief in the form of prerogative writs as codified in Article 102 (2).

Reprinting the Constitution:

It should be understood that through the judgment the Supreme Court did not change or amend the Constitution but had “held” the Constitution (Fifth Amendment) Act, 1979 to be illegal and void[20]. Therefore, it is submitted that the Constitution cannot be merely reprinted without going through the amendment procedure in Parliament. Following the decision, Parliament could have followed the amending procedure to comply with the Court’s judgment. Alternatively, if nothing was done by Parliament or if it did not possess the requisite majority for amendment, a footnote could have been inserted in the Constitution stating the Court’s decision without removing the delinquent provisions from the Constitution. In India, the Forty Second Amendment to the Constitution was found to be unconstitutional by the Supreme Court of India. However, it was not removed from the Constitution but remained there with a footnote stating the decision of the Supreme Court[21]. In our country, the Constitution was reprinted following the judgment of the Eight Amendment case by removing the offending Article 100 and replacing it with the original provision; this was a wrong decision that has now developed into a wrong precedent.

Amending the Constitution:

The Constitution (Fifth Amendment) Act, 1979 had purported to ratify, confirm and validate all proclamations, regulations, orders and all actions taken under those martial law instruments. The High Court Division gave seven main reasons for finding those ultra vires. First, all martial law proclamation, regulation and orders during that time were illegal and void. Therefore, there was nothing for Parliament to ratify, confirm or validate. Secondly, since all martial law instruments constituted offences, ratification by Parliament was against common right and reason. Thirdly, the Constitution was made subordinate and subservient to the martial law instruments. Fourthly, the martial law instruments destroyed the basic feature of the constitution. Fifthly, ratification, confirmation and validation do not come within the ambit of “amendment” in Article 142 of the Constitution. Sixthly, there was no long title in the bill as required which makes it void (one of the primary conditions) and seventhly, the amendment was made for a collateral purpose which constituted fraud upon the people. All these grounds being in general self explanatory, a little may be said about the doctrine of basic structure.

Doctrine of Basic Structure:

The doctrine of basic structure or feature of the Constitution originated in India and was accepted by the Supreme Court of India in Kesavananda Bharti Sripadgalvaru Vs State of Kerala[22], which broadly states that the Constitution cannot be amended so that its basic structure and framework is changed. The 42nd constitutional amendment in India was brought by Parliament, inter alia, to supersede the Court’s decision by giving Parliament vast and undefined power to amend the Constitution. The Indian Supreme Court also declared this unconstitutional[23] stating that Parliament could not use its limited power of amendment to expand it into an absolute power. It is interesting to note that neither our Constitution nor the Constitution of India or Pakistan say explicitly what the basic features are. An outline can be made from the preambles, fundamental principles of state policy or from the general framework of a Constitution. Even while expressing their views in this matter, the three Justices of the Indian Supreme Court expressed different opinions on what they considered basic ingredients of the Indian Constitution; they have given three separate lists with some elements in common. Although secularism was found to be a basic feature of the Indian Constitution, the word ‘secularism’ was not in the original preamble and did not find its way into the Indian Constitution until 1976.

This doctrine was adopted by our Supreme Court in the case of Anowar Hossain Chowdhury and others Vs Bangladesh[24], commonly known as the Eight-amendment case. The Court recognised some basic features of the Constitution like supremacy of the Constitution, Independence of the Judiciary, Democracy, Republican government, Unitary State, Separation of Powers and Rule of law. The Pakistan Supreme Court has also accepted this doctrine through various judgments and has found certain features of the Constitution of Pakistan i.e. Parliamentary System, Federalism, Islamic Provisions, Fundamental Rights and Independence of the Judiciary to be the basic features. The issue is still being hotly debated in the Constitution 18th amendment case now pending before the Supreme Court of Pakistan after being accepted. The Supreme Court has ordered that Article 175-A has been amended through the epic 18th Amendment be sent back to the Parliament for review as it harmed the independence of the judiciary, such referral itself being constitutionally doubtful. Rejecting this doctrine[25], the Federal Court of Malaysia held that had the framers of the Constitution intended such limitation, they would have expressly provided for that. Singapore also denied[26] the application of this doctrine.

The basic structure doctrine stipulates that even a valid Parliament with a valid amendment bill cannot change the Constitution to alter or damage its basic features. Our Supreme Court observed that Parliament had attempted to validate various Martial law instruments which themselves were illegal and so Parliament cannot legalise something which is illegal by bringing an amendment. Even if attempt is made by Parliament to make absolutely legal changes to the Constitution, as per the doctrine those changes also may be held to be invalid by the Supreme Court if the Constitution’s basic framework is altered. The Supreme Court took the original 1972 Constitution as the basis for applying the doctrine[27].

Parliament’s power of amendment:

There is no doubt that the power to amend the Constitution is with the Parliament alone and the Court acknowledged that in the Fifth Amendment judgment. Some Articles can only be amended by going through referendum (changes in the Preamble, Articles 8, 48, 56 and 142). Article 142(1) (a) gives express power to Parliament to amend by way of addition, alteration, substitution or repeal of any provision of the Constitution. Parliament itself cannot change Article 142 without referendum after getting approval of two-thirds of the members. The mode of passing an amending bill is quite different from passing a general bill under Article 80. This difficulty in enacting an amendment bill is sometimes called procedural entrenchment, devised to make amendment to the Constitution more difficult than general Acts of Parliament, which require only simple majority to enact. It means that the people have not delegated their power of amending the amendment provision of the Constitution to Parliament, but retained it through referendum[28]. Logically, if there is any curtailment of such power it can only be made through referendum, nothing less will suffice. Other than this, there is no other limitation imposed on the legislature’s power to amend the Constitution by the Constitution itself. More importantly, Article 26(3) exempts amendments made under Article 142 from the restrictions imposed by Part III. The most entrenched provisions in our Constitution are the fundamental rights bestowed under Part III, which severely limits all laws and government actions. Where even those limitations are expressly removed in case of amendments, it is difficult to comprehend how any other implicit limitation may be inferred. Limitation on the amending power of Parliament is quite expressly and precisely defined in Article 142 and reliance of the Court on the doctrine of basic structure, which itself is not expressly stated therein, to overrule an amending Act, does not appear to derive any support from the language of Article 142.

Conclusion:

The Constitution is the supreme law of the Republic because it is the solemn expression of the will of the people and all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution [29]. The will of the people being expressed only by Parliament, its power can only be curtailed by express provisions of the Constitution (e.g. Parliament cannot amend some provisions of the Constitution without going through referendum). While interpreting and applying the intention of the legislature, the Court cannot hold that the legislature had intended to circumscribe its own powers unless there is clear, unambiguous and express provision in the Constitution. Quashing or striking down an amending Act of Parliament is the highest form of judicial control over the legislature and the idea that the framers of our Constitution left such power to be inferred from the overall structure of the Constitution seems a little far-fetched. The framers certainly did not lack in expression if they so desired.

Some observers have expressed their reservations about the judgment and expressed the view that the Supreme Court had chosen and picked some provisions of the Fifth amendment for approval and had not condoned the others[30]. For example, the Supreme Court condoned the provision in the Fifth Amendment that had nullified the Fourth amendment because the Fourth amendment itself drastically altered the original Constitution. Similarly, changes made to Article 95 in the Fifth Amendment were condoned because that change was in conformity with the original 1972 constitution[31].

It will take years before the full impact of the decision in the Fifth Amendment case can be fully realised. At present only a few observations can be made:

  1. It has now become impossible to make any sweeping change to the Constitution (which may be necessary); it has become too rigid. The Constitution reform committee might find it hard to suggest broad changes.
  2. The Court has tried to preserve the character and spirit of the original Constitution of 1972. This means that experience of past thirty-eight years and changes in the political landscape will not find its expression in the Constitution.

iii. Parliament cannot ratify or validate that which is illegal in the first place. Any Act purporting to legalise an otherwise illegal action would not stand the Court’s test (i.e. it will be difficult to reconcile Parliament’s power to provide indemnity under Article 46 with the general principles laid down by the Court in the judgment).

  1. A conflict may occur between the decision of a referendum and decision of the Court. To put the matter in perspective, say Parliament wishes to bring changes to the Preamble or any provisions of Articles 8, 48, 56 or 142. A referendum is required for that but amendment would be carried out by way of passing an Act. If the changes are drastic in nature, the Supreme Court may find that Act to be in violation of the basic structure of the Constitution even though a referendum has approved it.
  2. A subsequent Parliament may attempt to overrule the decision of the Court in the Fifth Amendment judgment. Parliament is authorised to do so by legislation or Constitution amendments.
  3. Martial law has become totally unjustifiable. If there is ever an unfortunate time in the future when martial law is proclaimed, the Constitution is most likely to be abrogated.

In Bangladesh, among the three pillars of the State, undoubtedly Parliament has become the most weakest, largely because it had acted as rubber stamp for the people in power- either military rulers or elected governments. Parliament, as understood in this country, is not the Parliament understood by the Civilised world. As long as it remains in its present sorrowful state, nothing good can be expected from what we think in our country as Parliamentary Democracy. As Edward Gibbon had rightly said: “The principles of a free Constitution are irrevocably lost, when the legislative power is nominated by the executive”.

[1] Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139

[2] Khondokar Delwar Hossain, Secretary B.N.P and others Vs Bangladesh Italian Marble Works Ltd. and others ADC 2010 Vol. VI(B) p.1 and Bangladesh Italian Marble Works Ltd. and others Vs Bangladesh and others, 14 BLT (Special Issue) 2006

[3] Anwar Hossain Chowdhury and others Vs Bangladesh, 41 DLR (AD) (1989)

[4] Article 55(2)

[5] Article 65(1)

[6] The United States Constitution, Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court…”

[7] 5 U.S. (1 Cranch) 137, 2L.Ed. 60 (1803)

[8] See also Fazlul Qader Chowdhury Vs Shah Nawaz, 18 DLR (AD) 62 and Kudrat –E-Elahi Panir Vs Bangladesh, 44 DLR (AD) 319

[9] Supreme Court Act, 1981

[10] Halsbury’s Laws of England, ADMINISTRATIVE LAW (VOLUME 1(1) (2001 REISSUE)) at para. 123,160

[11] See British Railways Board v Pickin [1974] AC 765, [1974] 1 All ER 609, HL ,the House of Lords applied these principles in striking out paragraphs of a pleading that called them in question. See also Edinburgh and Dalkeith Rly Co v Wauchope (1842) 8 Cl & Fin 710 at 723, HL, Lord Campbell declared, obiter, that all that a court of justice can do is look to the Parliament roll, and that, once a bill has passed both Houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses. Lee v Bude and Torrington Junction Rly Co (1871) LR 6 CP 576 at 582, Willes J said that if an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it. See also Waterford, Wexford, Wicklow and Dublin Rly Co v Logan (1850) 14 QB 672; Earl of Shrewsbury v Scott (1859) 6 CBNS 1 at 160; affd at 221, Ex Ch; Labrador Co v R [1893] AC 104 at 123, PC; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 at 322, [1941] 2 All ER 93 at 97, PC.

[12] “The High Court Division may provide for relief based on circumstances”- Bangladesh Vs Ahmed Nazir, 27 DLR (AD) 41

[13] See Article 102(5) and Article 152.

[14] Keshavan Madhava Menon V Bombay (1951) S.C.R. 228

[15] Gujarat V Shri Ambica Mills (1974) 3 S.C.R 760

[16] See Bhikaji Narain Dhakras V MP (1955) 2 S.C.R 589; for a detail discussion, see H.M. Seervai, Constitutional Law o India, Vol. 1,4th Ed.,

[17] Discussed in M.P.V. Sundararamier Vs A.P (1958) S.C.R 1422 citing Willoughby , Constitution of the United States, Vol. 1, p. 11; Cooley, Constitutional Law at p.201 and Wilkerson V Rahrer (1890) 140 U.S. 545, 35 L. ed. 572.

[18] Oxford Dictionary of Law, 6th Edition and Black’s Law Dictionary, 8th Edition.

[19] See also Abul A’la Maudoodi Vs Govt. of West Pakistan, 17 DLR (SC) 1965 at 209.

[20] The Honourable Court cited mainly seven reasons, see para 16 at page 241.

[21] See Article 368 of the Constitution of India and Minerva Mills Ltd Vs Union of India (AIR 1980 SC 1789)

[22] AIR 1973 SC 1461

[23] Minerva Mills Ltd Vs Union of India, AIR 1980 SC 1789

[24] 41 DLR (AD) 165

[25] Phang Chin Hock Vs The Public Prosecutor [1980] 1 MLJ 70, in the words of Lord President: “…it is enough for us merely to say that Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself”

[26] Teo Soh Lung v. Ministry for Home Affairs [1989] 1 S.L.R.(R) 461

[27] Bangladesh Italian Marble Works Ltd. Vs Government of Bangladesh and others, 2006(Special Issue) BLT (HCD) 1 at page 242

[28] Article 142 (IA)

[29] Article 7.

[30]Asif Nazrul, Confusion and Controversy over Reinstitution of the “1972” Constitution, Forum Volume 3 Issue 11,November 2010.See also Abdul Mannan, “Reprinting the 1972 Constitution!”, The Financial Express, October 21, 2010.

[31] See, ibid for analysis of some of the related issues.

[Note: Work in progress, published without foot notes and references in The Financial Express, 13th December 2010 ]

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