Updated: For the Appellate Division verdict issued July 27, 2010, see here.

In 2005, a High Court bench led by Justice Khairul Huq declared the Fifth Amendment to the Constitution of Bangladesh illegal. The full judgment is available at Unheard Voice. It is a fascinating read. Justice Khairul Huq’s portion is slightly longer than Justice A. T. M. Fazle Kabir’s. Page 336-337 contains the reasons that the Fifth Amendment was found to be invalid.

This case is worth thinking about, because it does not deal with legal technicality, or arcane judicial procedure. This case is about the design, the blueprint if you will, of the State of Bangladesh. It is also about whether we, the people of Bangladesh, tell our government what to do, or whether they turn around and tell us what to do. Who gets the last word, the people or the government?

The Constitution of Bangladesh is the supreme law of Bangladesh. The First Parliament of independent Bangladesh, as elected representatives of a sovereign people, approved it. This constitution is a written contract between us, the people of Bangladesh, and the government, whom we allow the exercise of state power on our behalf. This contract is binding upon all organs of this government: the parliament, the president, the Supreme Court and all lower courts, the military, the police, and our local representatives, all must abide by it.

How do we ensure that all our  laws abide by this constitution? By dividing up the job. Our Members of Parliament get to make the laws. However, our Supreme Court measures those laws against the Constitution and lets us know if the parliament is acting correctly. If the Supreme Court thinks that a law made by the parliament is not within our constitution, it says so and declares that law unconstitution. This power of the Supreme Court is called judicial review.

If you stop and think about it, judicial review is a really big deal. The Appellate Division, which is the higher part of the Supreme Court (above the High Court), and the final court of judgment in Bangladesh, has eleven members, and is headed by the Chief Justice of Bangladesh. Most important matters, including the decision about the constitutionality of a law passed by parliament, is decided by six members of this eleven-member panel. This means that six government servants, who have never won an election, and will never have to face an election, and thus never have to be accountable to the people of Bangladesh directly, can undo a law that is passed by a majority of the country’s elected representatives. And they use this power quite frequently. Here is the latest example.

That seems slightly paradoxical, doesn’t it? We live in democracy; our constitution clearly says “All powers in the Republic belong to the people,” then how can the will of the people potentially be thwarted by six unelected government servants?

And the answer is, it can’t. Because even though the Supreme Court can say that a law passed by parliament is unconstitutional, the parliament can, through a two-third majority, change the Constitution itself. And the Constitution of Bangladesh is the playbook the Supreme Court has to follow. If the parliament changed our constitution tomorrow to require that all judges of the Supreme Court wear bright blue robes to court, and only write their judgments in rhyme, the Supreme Court would be bound to follow it. They probably wouldn’t like it, but they would still have to follow it.

There is a very important and practical reason for the Supreme Court, and all judges, to adhere to the law extremely strictly, much more strictly than any other government servants or elected representatives (although, it’s generally a good idea for them to follow the law as well). As judicial review makes clear, we give our courts a great deal of power. However, the court does not have its own police or army to enforce its judgment. When a judge orders a person to be jailed, or to be released from jail, he or she can only write that order in a piece of paper, hand it over to the relevant government ministry, in this case the Home Ministry, and hope that that order will be followed. The court’s biggest asset, and most valuable asset, is the confidence which the common people and other branches of governemnt have on the courts. As long as they have this confidence, courts are effective is describing the law to us. Once this confidence is lost, their job becomes impossible to perform with any effectiveness. And the only way for the Court to preserve this confidence is to adhere, strictly and unswervingly, to the law. Not second-guess why it was enacted, nor cherrypick which laws to adhere to and which ones not to, but to adhere to the law.

And now, we get to the reason why this verdict is such a big deal. The High Court held that a change to the Constitution itself is invalid. And the Appellate Division agreed with them, to the extent that it did not even allow those who disagreed with the High Court to appeal and get a full hearing in front of the Appellate Division (the petitions it dismissed were “leave to appeal” petitions: petitions that ask for the Appellate Division’s permission to discuss the verdict given by the lower court and see if the Appellate Court changes its mind). It’s the judicial equivalent of hanging up on a salesperson even before they have started telling you why you should buy the wonderful product they are trying to sell to you. Except that the salesperson they were hanging up on was Bangladesh’s Second Parliament.

To recap, the parliament makes the constitution, the Supreme Court forces the parliament to stay within the boundaries of the constitution, but the parliament, reflecting the supremacy of the will of the people over all organs of government, can change the constituion itself, and adjust those boundaries. Except that now, the court is telling us it also gets to decide the validity of the constituional amendments itself. So six government officials again get the final word over the will of the people as expressed through parliament. This is worrisome in principal, no matter which six government officials may have that power, or whichever government may have appointed them, or be in power now.

To put this into numbers, a constitutional amendment requires a two-third majority in parliament. Assume about one hundred twenty millions Bangladeshis were alive when the Fifth Amendment was passed in 1979. That would mean that it had the support of two-third of those population: eighty million people supported this Amendment (although of course, our first-past-the-post electoral model means that this is not true). Its legitimacy was further bolstered by a popular referendum. But the wishes of six unelected government officials are enough to overcome the will of eighty million ordinary Bangladeshis. Is this really the country we want for ourselves?

Why would the court do such a thing? We won’t know the Appellate Division’s ruling until it gives us the full text of the judgment. But let us see what Justice Khairul Huq said. His arguments can be boiled down to three essential points. He says the Fifth Amendment is invalid because:

a) It gives legality a series of declarations and promulgations that are themselves invalid.

b) It deviates from the “original spirit” of the Constitution, as expressed in the preamble of the original version.

c) It is like the Eighth Amendment, which was also declared unconstituional, two decades ago, by the Supreme Court.

There are some other reaons given, with the most entertaining one being that the Fifth Amendment was unconstituional because Justice Huq simlply did not like the “long title” of the Amendment. However, let us parse the three mentioned above.

Justice Khairul Huq takes great umbrage at the fact that an amendment may seek to ratify a series of executive orders and ordinances, many of them clearly unconstituional in nature, and none of them passed by an elected parliament. What he conveniently forgets is the fact that a duly-elected parliament, the Second Parliament, did ratify those orders, and considered them important enough to ratify them through enshrining them in the Constituion. Should we necessarily support all the orders ratified through the Fifth Amendment, especially the ones containing the shenanigans of Khandker Moshtaque Ahmed? Certainly not. However, the Supreme Court is not the appropriate vehicle to get at the underlying orders that were ratified by the Fifth Amendment. It was passed by the parliament. It is only appropriate that another parliament, maybe the current one, pass another amendment expressly rejecting those orders. What was done by parliament is thus fittingly undone by parliament. For the Supreme Court to opine on this matter, and to cast down a constitutional amendment to do so, is extremely unseemly.

To put this into perspective, our original constituion, passed by our First Parliament in 1972, broadly enshrined the reason for our War of Liberation in 1971. However, before we won that war and had the election that elected the 1972 parliament that formulated the Constitution, those reasons were only grievances, grievances that a majority of the population had against a military government, but for legal purposes, mere grievances none the less. It was our victory, by force of arms (suck on that, Pakis), that allowed the formation of a nation and the codification of a constituional basis for ensuring that those grievances were addressed. Justice Khairul Huq is ill-advised to second-guess the reason behind a constitutional amendment, just as he, or any other jurist, would be ill-advised to second-guess the reason for fighting that War of Liberation in the first place. It is the constitution, or in this case, the constitutional amendment, that should bind his judicial decision.

Justice Huq’s second point is that this amendment deviates from the “original spirit” of the constituion, as expressed in the preamble of the constitution. He sets up this discussion by quoting many learned and eclectic sources about the importance of the preamble to any law. He is forced to do this, because the preamble to a law is not law. It’s that simple. The preamble to a law is not law; if it were, it would not be the preamble, it would be in the law itself. Having tried to convince us of the importance of the preamble, the High Court judgment then goes to say how the original characteristic of the Constitution could be found in the preamble, and how this Fifth Amendment destroyed this original characteristic.

There are two points to note here. Firstly, Justice Huq makes a big deal about the oath he takes as a member of the higher judiciary to preserve, protect, and defend the constitution. We are of one mind with him that this oath is important, and would like to point out that he is tasked with protecting the Constitution, not a version of the Constitution, and certainly not the spirit (mythical or otherwise) of a Constitution. Secondly, the Constitution itself, in Section 142, outlines the process through which the constitution may be amended. This section is titled, rather helpfully, “Power to amend any provision of the Constitution.” Not the power to amend certain part of the Constitution, or the power to amend only those parts of  the Constitution that are politically unpopular at the moment. The Constitution is set up so all parts of it, after following due process, can be amended. For any legal professional to claim otherwise (we are looking at you, Barrister Shafiq Ahmed) is intellectual dishonesty of the most blatant variety.

The fact that there is a precedent for the overturning of the Fifth Amendment, the overturning of the Eighth Amendment by the Supreme Court, is the strongest legal argument in favor of this verdict. Anything the Court has done once, it can do so again, with much less trepidation. Thus, the decision overturning of the Eighth Amendment deserves close inspection. Then, the Court said that there were certain characteristics of the Constitution that even the Parliament could not change. Any attempt for the parliament to try and change one of these basic characteristics would be ultra vires, which legalspeak for beyond the power of the parliament.

Setting up this sort of meta-constitution (all provisions are equal, but some are more equal than others?) is an extremely troubling legal fiction. It is also plainly unconstitutional, since there is nothing in the Constitution itself that even remotely hints at this system of prioritization. The Supreme Court would do well to consider reversing itself (yes, the Supreme Court can, on extremely rare occasions, overturn one of its own decisions) the next time this question presents itself in front of the Court. A secondary aspect that deserves close scrutiny is the question of ultra vires. Bangladesh is not the United States, which has a federal goverment of enumerated and finite powers. Bangladesh is not India, with two houses of parliament and governance divided between the Union government and the state governments. Bangladesh is a unitary republic with a unicameral parliament which possesses plenary power. There are only two organs of the state who exercise sovereign power on behalf of the people: the president, who has the sole discretion of appointing the Chief Justice, and the Parliament, which does everything else. When these two organs act together, they exercise, in sum, the full power f the sovereign people of Bangladesh. Thus, to suggest that certain matters, even with the will of the parliament and the assent of the president, are untouchable, is to again suggest that complete sovereignty does not rest with the people of Bangladesh. It is up to the Supreme Court to decide if this is indeed the message it wants to propagate.

Bangladesh’s higher judiciary has long been a source of pride to all of us who advocate good governance and a system of checks and balances. The Supreme Court has heroically stood up to both the totalitarian tendencies of democratic governments and non-democratic governments alike. It is for this reason that the Court should ensure that it can continue to enjoy the high regards of those who see it as the defender of our Constitution. There is no higher duty, and no stricter one.