Watching Bangladesh’s higher judiciary in action always reminds of Goldilocks and the Three Bears. They can’t be too independent, but they can’t be blatantly servile either. The result is an eternal attempt to walk the fine line.

The Appellate Division’s verdict is another fine example on this. The committee to amend the Constitution announced more than a week ago that they would be having their first meeting on July 29. And through an extremely fortunate coincidence, the full copy of the verdict is released two days before that. Which is a relief, because this means that Sheikh Hasina and the members of this committee are only 50% in contempt of court, as opposed to the full 100% as they would have been if they had started the deliberations of the committee without getting the final copy. Of course, for all you over-suspicious types keeping track, Justice Khairul Huq was appointed by Awami League, and four of the six justices who delivered this verdict (Chief Justice Fazlul Karim, Justices Bijan Kumar Das, Justice Md. Muzammel Hossian, and Justice Surendra Kumar Sinha) were also elevated to their position by Awami League.

The judgment, in all its 184-page glory, is available here. It is undeniably an improvement on Justice Khairul Huq’s 391-page magnum opus.

So, I sat down and started diligently reading the judgment. And I lasted as far as:

the glory of independent Bengal faded away and sank in Palassy[sic]

You know, we are used to hearing our Supreme Court justices lecturing the bar, on every occasion they get, about delivering swift justice. Well, here’s an idea for their lordships: if you’re not even going to grant a leave to appeal, then don’t take 174 days to compose a decision, and then, don’t load it with non-legal matters. We all took history in school; we know what went down at Plassey.

Here is the crux of the judgment, starting at page 182 and ending at page 184:

We, therefore, sum up as under:
1. Both the leave petitions are dismissed;
2. The judgment of the High Court Division is approved subject to
the following modifications:-
(a) All the findings and observations in respect of Article 150 and
the Fourth Schedule in the judgment of the High Court Division
are hereby expunged, and the validation of Article 95 is not
approved;
3. In respect of condonation made by the High Court Division, the
following modification is made and condonations are made as
under:
(a) all executive acts, things and deeds done and actions taken
during the period from 15th August 1975 to 9th April, 1979 which
are past and closed;
(b) the actions not derogatory to the rights of the citizens;
(c) all acts during that period which tend to advance or promote the
welfare of the people;
(d) all routine works done during the above period which even the
lawful government could have done.
(e) (i) the Proclamation dated 8th November, 1975 so far it relates
to omitting Part VIA of the Constitution;
(ii) the Proclamations (Amendment) Order 1977
(Proclamations Order No. 1 of 1977) relating to Article 6 of the
Constitution.
(iii) the Second Proclamation (Seventh Amendment) Order,
1976 (Second Proclamation Order No. IV of 1976) and the
Second Proclamation (Tenth Amendment) Order, 1977 (Second
Proclamation Order No. 1 of 1977) so far it relates to
amendment of English text of Article 44 of the Constitution;
(iv) the Second Proclamation (Fifteenth Amendment) Order,
1978 (Second Proclamation Order No.IV of 1978) so far it
relates to substituting Bengali text of Article 44;
(v) The Second Proclamation (Tenth Amendment) Order, 1977
(Second Proclamation Order No. 1 of 1977) so far it relates to
inserting Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e.
provisions relating to Supreme Judicial Council and also clause
(1) of Article 102 of the Constitution, and
(f) all acts and legislative measures which are in accordance with, or
could have been made under the original Constitution.

That’s a lot of exceptions to grant to a piece of legislation the Court ostensibly finds “repugnant, illegal, and ultra vires.” And as a closer look shows, the Court leaves almost all of it intact. Besides, what does “all acts during that period which tend to advance or promote the welfare of the people” even mean?

So why does the Court feel it necessary to hurl so many choice objectives at a piece of legislation that they are, de facto, preserving? One word: self-interest. Judges, just like the rest of us, don’t like to be told they are not needed:

Superior Court of the Republic entrusted with the solemn duty to
“preserve, protect and defend the Constitution” and so every Martial Law,
immediately upon Proclamation seeks to curb the powers of the Court,
particularly, the powers of the Constitutional Court.

What about secularism? The Court says

Preamble and the relevant provisions of the
Constitution in respect of secularism, nationalism and socialism, as existed on
August 15, 1975, will revive

It looks like six members of the Court reached a compromise. Secularism is brought back to the preamble, but Bangladeshi nationalism is still maintained in the actual Constitution. Not bad for a judgment that was supposed to “forever bury BNP.”

There is a neat magic trick that our judges have to pull before they announce a Constitutional Amendment illegal. They quote Chief Justice Marshall in Marbury v. Madison till they are blue in the face, but obfuscate the fact that the United States Supreme Court, which gave the world the idea of judicial review, has never dared to question the legality of a constitutional amendment. In fact, our Supreme Court makes all their own rhetoric about the people being the owners of the republic contradictory when they dismiss an amendment made by the Parliament, the elected representatives of the people. It bears repeating, the Supreme Court should have left it to Parliament to handle any modification or abrogation of the Fifth Amendment, or to any other part of our Constitution.

The Court devotes a lot of pages regarding the evil of martial rule, a position that none of us disagrees with. However, once the Court gets down to the details of what the Fifth Amendment actually does, it finds little to dislike:

As a result a citizen of Bangladesh is entitled to move the High
Court Division under Article 102 for the enforcement of the rights conferred
in Part III. This substitution of Article 44, no doubt, was designed to advance
rule of law and the welfare of the people
and accordingly it needs to be
retained for the interest of justice.

[clauses (2), (3), (4), (5), (6)
and (7) of Article 96] being more transparent procedure than that of the
earlier ones and also safeguarding independence of judiciary
, are to be
condoned.

High Court Division, under original Article 102(1), had powers to pass
necessary orders to enforce fundamental rights. It may be noted here that this
power of the High Court Division is not discretionary and whenever an
authority acts illegally or commits an error of law or a citizen’s fundamental
right is violated, the remedy under this article can be availed of. This subarticle
(1) of Article 102 though was deleted by the Fourth Amendment has
been restored by the Second Proclamation (Tenth Amendment) Order, 1977.
The above restoration of sub-article (1) of Article 102, being beneficial,
should be condoned for the wider public interest.

It also appears that Part VIA of the Constitution under the heading
‘THE NATIONAL PARTY’ incorporating Article 117A was added by the
Fourth Amendment. However in a democratic system the existence of
different political parties and their participation in the parliamentary election
cannot be denied because such participation would flourish the democracy
in
the country. Further this Article 117A is also inconsistent with Articles 37,
38, 39 of the Constitution. However this provision has been deleted by the
Proclamation dated 8th November, 1975. Accordingly this portion of the
above Proclamation needs to be condoned.

Bangladeshi nationalism has been retained.

The final, and most delicious, part is the rebuke delivered to Justice Khairul Huq’s original judgment. Justice Khairul Huq made many observations such as:

Besides, Bangladesh
can not even be considered independent during [August 15, 1975 to April 9, 1979].
Earlier, it was conquered by the British Rulers, thereafter it was
under the domination of the West Pakistanis. But this time, for
all practical purposes, Bangladesh was conquered not by any
foreign invaders but by Bengali speaking Martial Law
Authorities.

The Constitution is a sacred document, because it is the
embodiment of the will of the people of Bangladesh. It is not to
be treated as a log book of Martial rules.

Those Provisions
and the actions taken thereon in violation of the Constitution,
were not only illegal but seditious acts on the part of the
Martial Law Authorities

All of the previous comments, and more, have been EXPUNGED.

If all goes to plan, Justice Khairul Huq shall grace the position of Chief Advisor in the near future. We hope he shall take to heart the stinging rebuke delivered by the Chief Justice, and moderate his partisan instincts.

In final analysis, this judgment is much more nuanced and moderate than the High Court verdict. Parliament should take this judgment as a starting point, and try to better our Constitution. Otherwise, the task shall be left to the Supreme Court, and as we have just seen, they aren’t very good at it.