The Bangladesh Supreme Court's judgment nullifying the 5th Amendment to the Constitution enacted in 1977, is seen as a milestone in restoring the constitutional course of the nation's history.
Bangladesh has been waiting for a return to its core values, affirmed through its Liberation War. The nation has suffered for nearly three decades the consequences of unconstitutional and undemocratic practices and processes set in motion to seize state power and then nourish the illegality.
Now democracy stands restored thanks to a massive and united movement against autocracy, and many good things have emerged from the change. The latest is the nullification of the controversial 5th Amendment to the Constitution by the appellate division of the Bangladesh Supreme Court. The Amendment, made in 1977, helped some elements to usurp the country's constitutional processes through martial law decrees. The landmark judgment delivered on July 28, therefore, will be seen as a milestone in restoring the constitutional course of Bangladesh's history.
The ruling by the six-member full bench headed by former Chief Justice Mohammad Tafazzul Islam, has laid the foundation for a process of reviving the secular spirit of the Liberation War. This spirit was at the core of the original Constitution framed by the Constituent Assembly in 1972, a year after the Liberation War.
The 5th Amendment, incorporated in the Constitution during General Ziaur Rahman's tenure, was meant to provide constitutional legitimacy to governments in power — be they military-led or others — following the 1975 assassination of the nation's founding father, Sheikh Mujibur Rahman. Upholding a previous historic verdict of the High Court that in 2005 had declared the 5th Amendment to be illegal, the Supreme Court said it is now up to Parliament to enact laws to prevent the recurrence of martial law administrations. But it observed: “We are putting on record our total disapproval of martial law and suspension of the Constitution or any part thereof in any form.” It added: “[The] Preamble and the relevant provisions of the Constitution in respect of secularism, nationalism and socialism, as existed on August 15, 1975, will revive.”
Justice A.B.M. Khairul Haq of the High Court in August 2005 gave the first ruling that declared the 5th Amendment illegal, in a petition challenging the legality of a martial law regulation. In that landmark ruling, the first such by a court of law in Bangladesh, the judiciary declared illegal three regimes that were in power between August 15, 1975 and February 1979. These were headed by Khandaker Mushtaque Ahmed, Abu Sa'dat Mohammad Sayem and General Ziaur Rahman respectively. But the ruling exempted certain measures that the regimes had initiated for the public welfare.
There were immediate judicial challenges against the High Court ruling, which had shaken the then ruling Bangladesh Nationalist Party (BNP) and its ally, the Jamaat-e-Islami. But, rejecting their petitions, the Supreme Court has observed: “The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their Constitution, their government, established by them with their consent.”
This strong condemnation of military rule by the Supreme Court should serve as a deterrent against any future adventurism by the Generals who might want to rely on the supremacy of the gun. But whether the Generals will really respect such a judicial caution is still an open question. Yet, the ruling has given a solid legal and moral footing against any such eventuality.
The verdict has come as a clear denunciation of military takeovers of state power and a message against extra-constitutionalism. The judiciary has, in unmistakable terms, upheld the core values of the original Constitution — and thereby restored its own image as well.
The 1972 Constitution has four basic state principles — democracy, nationalism, secularism and socialism. The latest judgment has restored those principles. The verdict observed that by “omitting secularism, one of the [principles of] state policy, from the Constitution,” the martial law proclamations had “destroyed one of the basis of our struggle for freedom and also changed the basic character of the Republic as enshrined in the preamble as well as Article 8(1) of the Constitution.”
General Ziaur Rahman, who founded the BNP while he was in power, had deleted Article 12 of the Constitution that prohibited religion-based politics and communalism in all forms. The Supreme Court has now restored that Article. Of course, this has caused consternation among those religion-based political parties that had grown in their dozens over the years, and their patrons at home and abroad.
The judiciary in Bangladesh has clearly laid the foundation for reviving the spirit of the Liberation War which was at the core of the Constitution. In fact, the Supreme Court has upheld the return to unfettered democracy. The judiciary has also given the nation an opportunity to restore the secular spirit of the Constitution.
Secularism has never represented a negation of religion; it has been a principle meant to ensure equal rights for those belonging to all faiths. But that understanding was given a negative colour by sections of the religious leadership and those politicians who seek to use religion to make political capital. The omission of the particular Article of the Constitution by a military ruler not only facilitated the resurgence of religion-based politics but also paved the way for Islamist militancy.
Now that the judiciary has expressed itself strongly in favour of restoring the core values, the legislature has taken a bold step to go for a major amendment to the Constitution. Prime Minister Sheikh Hasina has constituted a 15-member parliamentary committee to draft a vital amendment in view of the Supreme Court's ruling.
Nonetheless, there are some crucial lessons to be learnt from the judgment. One is that it is the fundamental duty of all citizens to preserve, protect and defend the Constitution against any onslaughts as and when they are made. The Supreme Court has ensured a progressive democratic future for Bangladesh, no matter what the future may hold.
The Awami League-led ruling mahajote government has more than the required two-thirds majority to change the Constitution. It could have brought about necessary changes even in the absence of the court's judgment, had it decided to do so. The Supreme Court's ruling makes such a step easier. It has also put a special responsibility on the Sheikh Hasina government — for what are needed are fundamental amendments that would require consideration at the highest political level.
There are some fundamental observations that the Supreme Court has made on certain crucial national issues over which political parties have fought for decades. One of them is the identity of the citizens of Bangladesh. The court has ruled that this identity would be as ‘Bangladeshis'; and as a nation the people are ‘Bengali'.
Despite the favourable circumstances it enjoys, the government needs to give serious thought to certain issues. Probably considering the political consequences of those issues, Prime Minister and Awami League president Sheikh Hasina announced that her party was not going to delete Bismillah, a term inserted in the Constitution by means of the now illegal 5th Amendment. However, the judgment does not cover the incorporation of Islam as the state religion in the Constitution by another military dictator, General H.M. Ershad, by means of the 8th Amendment. There is also another concern. What is going to be the fate of the religion-based parties, which will stand automatically banned if the Supreme Court judgment is to be honoured in letter and spirit?
The parliamentary committee that has been assigned the task of suggesting amendments to the Constitution will need to ponder seriously over many issues before formulating its report. The major Opposition parties, the BNP and the Jamaat-e-Islami, have not nominated their members to the ‘all-party' parliamentary committee despite repeated appeals made by the Prime Minister. While reserving comment on the Supreme Court ruling, they have launched a scathing attack on the government over its plan to amend the Constitution. The religion-based parties, which are the natural allies of the BNP and the Jamaat-e-Islami, are mulling over their future course of action.
There are other realities to be considered, too. The Awami League, which led the Liberation War, has ruled the country for only 10 out of the 39 years of Bangladesh's existence. For the rest of the period, those who were the promoters or direct beneficiaries of the 5th Amendment were in power. The constitutional reforms may be set in motion at a time when the Sheikh Hasina government has taken up yet another major task — to hold the trial of the war criminals of the Liberation War.