Reviewing the views
The 5th amendment to the constitution: A legal appraisal
Professor M Rafiqul Islam
THE Fifth Amendment of 9 April 1979 ratified all martial law regimes from 15 August 1975 to 9 April 1979. The Amendment was declared unconstitutional by the HCD on 29 August 2005, stayed by the AD on 1 September 2005 and is now the subject of a leave-to-appeal.
The Amendment approved martial law immediately after its withdrawal on 6 April 1979. Were these martial law regimes illegal so that they needed validation at the time of withdrawal? If these regimes were legal in the first place, why did they require subsequent validation? If these regimes were illegal, could Parliament turn them legal which were otherwise illegal?
Moshtaque assumed the presidency with the proclamation of martial law at the aftermath of the military coup of 15 August 1975. He did not suspend or abrogate the Constitution, which remained in force and contained no provisions for the promulgation of martial law under any circumstances whatsoever.
In defiance of the Constitution, the presidential proclamation of 20 August 1975 announced that the President “may make” martial law regulations and orders “notwithstanding anything contained in the Constitution”. Moshtaque was forcibly removed on 6 November 1975 following the second coup on 3 November 1975 and Sayem became the President. Sayem declared the Chief of Army Staff Zia as the Chief Martial Law Administrator on 29 November 1976. Sayem resigned on 21 April 1977 and nominated Zia as the President, who was sworn in on the same day.
Moshtaque in his first proclamation of 20 August 1975 entitled the outgoing President to nominate his successor. It was ironic that Zia arrested, convicted, and imprisoned Moshtaque for the abuse of powers on 24 February 1977.
Yet Zia did not find any contradiction to be the nominated President of Sayem according to Mushtaque's proclamation. The assumption of presidency by Zia resembled with that of Yahya in 1969.
Ayub stepped down as the President of Pakistan and out of his own free will and accord wrote a letter on 25 March 1969 to Yahya, then Commander-in-Chief of the Army, handing over the presidency to Yahya as if the presidency of Pakistan was the personal estate of Ayub. In a similar vein, Zia became the President as the personal choice of Sayem.
The 1972 Constitution was in force after the coup of 15 August 1975 and at the time of the abdication of Sayem. The Constitution provided for filling the vacuum of presidency by the Vice President under Article 51(3) or by the Speaker in the absence of the Vice resident under Article 55(2) to be the Acting President under Article 55. Parliament was also authorised under Article 55(3) to make provisions to discharge the functions of the President in any contingency not provided in the Constitution.
Unlike Moshtaque, Sayem unilaterally abdicated and nominated Zia as the President. This act arbitrarily prevented the constitutional machinery from playing their mandated role in constitutional impasses.
The Pakistan Supreme Court held Ayub's martial regime in 1958 valid in the Dosso case because the 1956 Constitution was annulled. The same Court in Asma Jilani case in 1972 held Yahya's martial law regime illegal because it did not abrogate the 1962 Constitution.
The promulgation of martial law did not by itself revoke the Constitution, which Yahya was bound by his oath to defend. Like Yahya, but unlike Ayub, the Constitution remained in force in Bangladesh. The martial law authorities introduced a legal regime that ran not only parallel to, but in contravention of, the Constitution. It is this parallelism and contravention that rendered these martial law regimes unconstitutional. These regimes were well aware of their unconstitutionality following the Asma Jilani case, which led to obtain parliamentary endorsement.
Zia held the presidential election on 3 June 1978 and parliamentary election on 18 February 1978 amid martial law. It was this Parliament that enacted the Fifth Amendment. The President had unlimited power to dissolve Parliament at any time by public notification (Art. 72). He utilised this weapon to hold Parliament hostage to validate all actions as a condition of lifting martial law.
Presumably Parliament would have been dissolved and martial law would have been continued indefinitely had Parliament refused to pass the Amendment. Parliamentary sanction to martial law was indispensable not only to legitimise the regimes but also to legitimise Parliament itself constituted by elections held under martial law. Parliament had no other choice but to validate the martial law regimes, simultaneously validating its own existence.
The Fifth Amendment could not be called in question in any court on any ground. Article 150 of the Constitution contains indemnity provisions for transitional purposes categorically and exclusively enumerated in the Fourth Schedule. Bangladesh proclaimed its independence on 26 March 1971 and achieved its liberation on 16 December 1971.
During this period and until the commencement of the Constitution, the Bangladesh government made laws, orders, and ordinances, performed functions, and exercised powers without a constitution. All these interim measures of the pre-constitutional period were ratified to have been duly made, exercised, and done according to law. The indemnity provision overtly says that it is applicable only “in the period between the 26 day of March, 1971 and the commencement of this constitution”. It further states that the Bangladesh government exercised all these powers “under authority derived or purported to have been derived from the Proclamation of Independence”. Since there was no constitution to follow, those acts could not be held unconstitutional anyway. With the commencement of the Constitution, every such act should be performed within the constitutional ambit. Article 150 and the Fourth Schedule (clause 3) do not allow the validation of any unconstitutional act in the post-constitutional period.
Hence no unconstitutional act of the post-constitutional period could validly be indemnified under, and appended to, the Fourth Schedule to accord constitutionality. Despite this clear constitutional restriction, the Zia regime amended the Fourth Schedule by adding a new clause 3A by the Proclamation Order No. I of 1977 in a bid to validate various martial law acts.
The Constitution professes its supremacy and outlaws any constitutionally inconsistent acts of any authorities (Art. 7). Being the procreation of the Constitution, Parliament is legally obliged to enact constitutionally valid law or amendment. The Judiciary is entrusted to determine the constitutionality of an act passed by Parliament. The martial law regimes were evidently unconstitutional. It is difficult to appreciate how a Parliament, whose power to legislate is contingent upon the constitutionality, can convert an unconstitutional act into a constitutional one. Parliament also insulated the Amendment from judicial scrutiny by excluding the jurisdiction of courts. Such a self-made immunity for Parliament is totally unavailable in the Constitution. Parliamentary ballots cannot legalise those martial law regimes that were introduced and maintained unconstitutionally by bullets in the first place.
Professor M Rafiqul Islam is Director of the Law PhD Program, Macquarie University, Sydney, Australia.