Published in the Daily Star Forum on 1 November 2010.
This piece draws parallels between judicial activism and independence in Bangladesh and the United States.
Bangladesh has time and again been failed by the legislature and the executive branches of subsequent governments, regardless of whether they came to power through free and fair election, ballot-manipulation, or bullet-mayhem. Time and again, Bangladesh has rest its hope on these two branches in its pursuit of democracy. The Judiciary in contrast remained relatively less talked about. Well, that was until the Supreme Court’s Fifth Amendment verdict was delivered. And this time, our political discourse is even risking ‘contempt of court’ debating the pros and cons of its consequences.
However, the Indian Supreme Court has recently declared that fair criticism of judicial verdict is part of the fundamental right of freedom of speech. In the case of Hari Nagra v Kapil Sibal, the Court held that fair criticism must be encouraged as no one, ‘much less judges’, can claim infallibility. Given the judicial convention of getting influenced by opinions of neighbouring Courts, a standard evident in the Fifth Amendment verdict, this is encouraging.
With that in mind, this article discusses some pertinent matters concerning the Judiciary, using the controversial judicial history of the United States, where the Court not only holds a liberal view on contempt of court, but also has a long history to offer lessons for others.
Watching the watchmen
Ever wondered why the Judiciary has the guardianship to preserve, protect and defend the Constitution — despite the fact that the Executive and the Legislature are elected representatives of the people?
Alexander Hamilton, whose writings are considered to be a primary source for interpretation of the US Constitution, has given the most eloquent answer to that question:
The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
What about people’s representatives? He argued:
The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.
Well, holders of the sword and holders of the purse did fail us before. But why is the Judiciary any different?
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.
Indeed. Even the thought of being failed by the Judiciary was inconceivable to Hamilton.
But Bangladesh is not America. In Shesher Kobita, Rabindranath wrote:
The person with the chain binds the bird with it, by force. One without the chain binds with drug, illusion. The person with the chain binds, but does not hypnotize. The druggist binds, and hypnotizes too.
Taming constitutional dictatorship
To legalise illegitimate authoritarian rules, suspension and retrospective amendment of the Constitution has become all too typical.
Take a Turkish coup d’état for example.
Amid political uncertainty, through a coup d’état in 1980, General Evren proclaimed himself as the president. The military government then abandoned the Constitution, announced a series of laws, and introduced a new Constitution in 1982. An article was inserted into that Constitution prohibiting the Judiciary from prosecuting the military instigators of the coup. The Constitution was then ‘legalised’ through a referendum. After this so-called ‘restoration of democracy’, the military ruler got reappointed as the president of the country for the next seven years.
Turkish scholar Ergun Özbudun defined this coup and subsequent transition to democracy as a ‘textbook example of the degree to which a departing military regime can dictate the conditions of its departure’.
If the Executive takes the power by sword and then rigs the election to install a ‘supposedly legitimate’ puppet-Legislature; and using it, amends the Constitution at its own desire to become ‘Constitutionally legitimate’, then how do we prevent it?
To this end, the US Supreme Court introduced the Judicial Review of actions of the other two branches of the government. In the 1803 landmark case of Marbury v Madison, the Judiciary held that it has the right to review and question the validity of legislative laws and executive acts.
Did it work?
Living by the rule, dying by the rule
Fifty years after the inception of Judicial Review, the US Supreme Court gave a controversial verdict in the case of Dred Scott v Sandford. In 1856, it ruled that ‘a free negro [sic] of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States’. Such interpretation of the Constitution by the Judiciary fuelled the slavery-debate in the North and the South.
Denoting the Scott case, Abraham Lincoln during his first inaugural address in 1861 noted:
“…the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, …the people will have ceased to be their own rulers”.
With that, the US entered into the Civil War. After the War, in 1868, the Congress overturned the citizenship decision of Dred Scott case by adopting the equal citizenship and equal protection clauses through the Fourteenth Amendment of the US Constitution.
Then on August 14, 1876, a Sheriff named RG Harris of Crockett County, Tennessee led an armed mob into a Tennessee jail and captured four African American prisoners. The prisoners were severely beaten by the mob and one of them was killed. So the US government brought charges against Harris and others.
But the Supreme Court in the case of Harris v the United States ruled that it is ‘unconstitutional’ for the federal government to punish individuals for such assaults and murders. The same year, the Supreme Court in the Civil Rights Cases also ruled that the Federal Congress did not have the authority to outlaw racial discrimination by individuals as only the State governments have that jurisdiction. The Court also ruled the Civil Rights Act of 1875 as unconstitutional.
As a result, white supremacists got away with their assaults and discriminations against the African Americans in the southern states, where such crimes were ignored by the State government.
Then in 1896, the Supreme Court in the case of Plessy v Ferguson ruled that ‘racial segregation’ between the blacks and the whites was permissible.
Finally, interpreting the same Constitution, in 1954 the Supreme Court in the case of Brown vs Board of Education declared racial segregation and discrimination in public schools unconstitutional.
After another decade, the Congress passed the Civil Rights Act 1964 and the Supreme Court in the case of Atlanta Motel v United States held that the Congress had the authority to enact laws to fight discrimination.
It took a century and a Civil War for America to fully comprehend what Lincoln had said about the Judiciary in his 1861 speech — it’s not the institution, it’s the arbitrary decisions that fail the people.
Averting arbitrary decisions
To prevent arbitrary decisions, constitutions often specify irrevocable articles. For instance, Article 1 to 3 of the Turkish Constitution and Article 1 and 20 of the German Constitution are specifically marked unalterable.
Our Constitution does not specify any irrevocable article by clause, but articles such as 7(2) and 26(2) rule that the State shall not make any law inconsistent with some provisions. The French Constitution also has similar irrevocable provisions in its Article 89 to prevent monarchy.
An exceptional way is the Basic Structure doctrine pioneered by the Supreme Court of India. In the case of Kesavananda Bharati v State of Kerala, the Court held that certain features of the Constitution of India are beyond the limit of the powers of the Legislature and cannot be amended.
The judicial verdict in the case of Anwar Hussain v Bangladesh, also known as Bangladesh’s Eighth Amendment case, was based on this Basic Structure doctrine.
Ruling against the Eighth Amendment of the Bangladesh Constitution that intended to set up High Court benches outside Dhaka, Justice Shahabuddin Ahmed, held that: ‘constituent power’, in the sense of power to make a Constitution, belongs to the people alone; to vest the power to the parliament is a ‘derivative’ one; and that derivative constituent power will not automatically make the amendment immune from challenge.
In the dissenting opinion, Justice ATM Afzal rejected the doctrine and argued that ‘it is unthinkable the makers of the Constitution did not leave any option to the future generation but decided on all matters for all people’.
In the 3-to-1 majority judgement, the Court ruled that a number of features such as supremacy of the Constitution, democracy, and independence of the Judiciary are beyond any alteration or change by amendatory process.
In the Fifth Amendment case, the Court made similar argument re the Basic Principles of our Constitution.
The ‘period of delinquency’ and ‘Condoning’ in retrospective
Justice Tafazzul Islam in his Appellate Division judgment on the Fifth Amendment case held that ‘Period of Delinquency’ comes when those entrusted to preserve, protect and defend the Constitution miserably fail in their sacred obligations. In his words, Bangladesh entered into this period of delinquency ‘at its very early Part in 1975 and that delinquency continued for long 16 years’, through two martial law regimes.
While the Court opined about the whole period, the complainant of the case initiated the lawsuit against the validity of particular martial law proclamations that were retrospectively legitimised by the Fifth Amendment of the Constitution. Hence, the verdict of that particular case did not invalidate Fourth or Seventh Amendment (though a different case invalidated the later amendment).
According to the rulings of the High Court Division, following were the underlying principles of the Fifth Amendment verdict, in brief (page numbers in the parentheses refer to respective verdicts).
1. The Constitution and its supremacy cannot be suspended by any law, much less Martial Law; and since ‘there is no such law in Bangladesh as Martial Law’ (p-386)hence all martial law proclamations are illegal to begin with.
2. ‘The Parliament may enact any law but subject to the Constitution’ (p-336) but cannot validate martial law proclamations that contradicts with the Constitution. Hence, the Second Parliament’s approval of the Fifth Amendment Act is ultra vires (p-388), that is, beyond the Parliament’s Constitutional power.
3. Invalidation of the whole Fifth Amendment would mean Bangladesh will automatically return to the one-party political system introduced by the Fourth Amendment. But that will create a Constitutional vacuum in the country since most laws and amendments were made assuming the invalidation of the Fourth Amendment by the now-invalid Fifth Amendment. So by invoking the doctrine of State necessity, the Court ‘condoned’ some martial law acts (p-156-357) and the reversal to Fourth Amendment was averted.
4. The Court could only condone certain clauses that are past and closed transactions, and/or ‘could have been legally done at least by the proper authority’ (p-346). Then, following the Eighth Amendment case, the Court also held that ‘only those amendments which did not change the basic structure of the Constitution’ (p-363) could have been legally done. So the Court did not condone martial law acts that changed the fundamental principles of the Constitution (that is, socialism and secularism).
We should note that few changes made by the martial law proclamations that do not fall within the State necessity or basic structure doctrines, such as the introduction of the Supreme Judicial Council, were not condoned in the High Court Division verdict.
Then the petitioners appealed against the High Court verdict on the ground that while condoning, ‘the High Court Division cannot pick and choose the provisions at its sweetwill’ [sic] (p-19).
The Appellate Division upheld the High Court Division verdict, but expunged some of its observations and reverted a few decisions such as the issue of Bangladeshi identity. This time, however, establishment of Supreme Judicial Council by martial law proclamation was also condoned for being a ‘more transparent procedure than that of the earlier ones’ and for ‘safeguarding independence of judiciary’ (p-177).
Amid all the media controversies re the verdict, it is perhaps pertinent to recall another part of Lincoln’s speech quoted earlier:
“while it is obviously possible that such decision [by Supreme Court] may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice”.
From Judicial Activism to Politicisation
There is no denying the opinion that the Judiciary shall not enter into politics. Judges around the world are also critical of Judicial Activism. But even Political Question doctrine fails to save judiciary from controversy when people are politically divided on supposedly non-political issues or when legal and criminal issues become subjective enough to constitute a political question.
So when Justice Thurgood Marshall, best known for his legal battle for American civil rights movement, was asked about his judicial philosophy, he simply answered — ‘you do what you think is right and let the law catch up’.
Though the Judiciary cannot endorse any political party, the judicial leanings of the judges — conservatives or liberal — are well known. And that well known reality has its implications. Appointing judges who are more likely to rule in ruling Executive’s favour became a typical exercise. Over the past decades, appointments of Supreme Court judges have become contentious, intense and often politically hostile.
Justice Scalia’s appointment is seen as one of the most successful appointments by the Republican Party. Over the last two and a half decades, Justice Scalia has not only offered most conservative interpretations of the Constitution, he also persistently opposed and fought to overturn women’s abortion rights given in the case of Roe vs Wade.
One might hypothesise that in the long run, even the Basic Structure doctrine might get overruled in Bangladesh by a different panel of judges appointed by a different government.
Hamilton believed that the holder of the Judgement should never possess the Sword or the Purse to protect its integrity. Well, things have changed.
In November 1975, following grizzly massacres in Dhanmondi and the Central Jail, Justice Abu Sadat Mohammad Sayem, the first Chief Justice of Bangladesh, was made the President and Chief Martial Law Administrator of the country. In 1990, the Chief Justice was made the Acting President by our political leaders. The Eleventh Amendment of the Constitution was made to re-appoint the Acting President as the Chief Justice.
Then, through the Thirteenth Amendment, we made the Caretaker system of government permanent and reserved the Chief Advisor’s position for the last retired holder of the judgement (that is, the head of the Judiciary).
Hamilton’s concept of the Judiciary having ‘neither force nor will’ is obsolete in Bangladesh.
Here, the stakes are higher.
1. Hamilton, Alexander. 1788. “The Judiciary Department”, The Federalist No. 78, First published in the Independent Journal Saturday on June 14, 1788.
2. Özbudun, Ergun. 2002. Contemporary Turkish politics: challenges to democratic consolidation. London: Lynne Rienner Publisher, p-117
3. Lincoln, Abraham. 1861. First Inaugural Address of Abraham Lincoln, March 4, 1861. Library of Congress.
4. The desegregation was not easy and President Dwight Eisenhower even had to send army troops to a school at Little Rock, Arkansas to get nine African American students enrolled.
5. Rhode, Deborah L. 1992. Letting the Law Catch up. Stanford Law Review, Vol. 44, A Tribute to Justice Thurgood Marshall (Summer, 1992), pp. 1259-1265