The Constitution of the People's Republic of Bangladesh, Article 7, embodies what is known as the Doctrine of 'Constitutional Supremacy'. It is the declaration that the people are the repository of all powers and their exercise on behalf of the people shall be affected only under, and by the authority of, the Constitution (Article 7(I). The Constitution is the solemn expression of the will of the people, the supreme law of the Republic, and if any other law inconsistent with this Constitution shall be void to the extent of the inconsistency (Article 7(2).
The dictum of Article 7 of the Constitution was manipulated and tailored to suit the ruler, as was pointed out by Justice Habibur Rahman, "the Constitution has experienced evulsions and kinds of reformation in situ."
Also mentioned by Barrister Amirul Islam: "… Far reaching and radical changes had been introduced in the Constitution both during the time when it was functioning and during the time when it is not allowed to function."
Throughout the text of the Constitution of Bangladesh no reference has been made to Martial Law. The term 'Martial Law' occurred in Article 196 of the 1956 and Article 223-A of the 1962 Constitution of Pakistan.
The Articles which enacted provisions for passing an Act of Indemnity in relation to acts done in connection with Martial Law Administration has significantly been omitted from corresponding Article 46 of the Constitution of Bangladesh.
In Pakistan Articles 196 and 223A of the 1956 and 1962 Constitutions respectively, recognized the possibility that Martial law might be imposed under the common law doctrine of necessity no such recognition was given in Bangladesh where the phrase 'Martial Law' was omitted from the analogous Article 46 of the Constitution of Bangladesh. (Law & Our Rights, issue # 210, Oct. 8 2005)
Therefore, it appears that in the Constitution of Bangladesh there is no provision whatsoever for the imposition of martial law under any circumstances even for the sake of restoring law and order.
The Fifth Amendment of 9 April 1979 ratified martial law regimes of three years eight months, starting from 15 August 1975 to 9 April 1979. The High Court Division declared the same Amendment unconstitutional on 29 August 2005, with stay order by Appellate Division on 1 September and now is a subject of a leave to appeal.
A High Court bench declared illegal and void the Martial Law Proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property and all actions between August 1975 and April 1979.
The court observed that usurpation of the state power through martial law proclamations was unconstitutional and those who have proclaimed martial law so far are liable to sedition charges. It therefore meant that a constitutional vacuum prevailed in the country sans rule of law during this period.
The judges said 'the violation of the Constitution was a grave legal wrong and remains so for all time to come. It cannot be legitimised.'
The court, however, observed that due to the necessity of the state, 'such a legal wrong can be condoned in certain circumstances' invoking the Doctrine of Necessity.
Judicial Independent Study by The Asia Foundation Pakistan 2007 said that the doctrine of necessity was one of Pakistan's core jurisprudential principles. The Supreme Court has thrice justified transitions to military rule in 1958, 1977 and 1999 which the politician say is, "yes, too much necessity and not enough doctrine."
Essentially, the doctrine of necessity is invoked by courts when faced with the consequences of extra-constitutional transitions to avoid a break in the constitutional umbilical cord. The reasoning goes that the Court must stay open for business in order to avoid plunging the country into deeper chaos. As Justice Dorab Patel wrote many years ago with palpable frustration: "how do you expect five men alone, unsupported by anyone, to declare martial law unconstitutional?"
Further the study adds that law and necessity can be uneasy bedfellows. The rule of law cannot exist without an independent judiciary and "independence" is a relative term. Pakistan became independent in 1947 its first constitution appeared nine years later in 1956.
Similar to some regional countries martial law was imposed unconstitutionally in Bangladesh twice, first on the 15th August, 1975 and second, on the 24th March, 1982.
In Bangladesh the legality of the declaration of martial law was not discussed by the Supreme Court in any case either during the continuance of or even after the withdrawal of martial law.
The courts declared that martial law proclamation regulation etc. were supreme law and the Constitution lost its character as the supreme law. The then, Legal expert Fazle Munim. J. in the case of Halima Khatun V. Bangladesh made valuable observations:
"What it appears from the Proclamation of August 20, 1975 is that, with the declaration of Martial Law .... The constitution of Bangladesh ... (has been made) subordinate to the Proclamation and any regulation or order as may be made by the president in pursuance thereof.... Under the Proclamation ... the constitution has lost its character as the supreme law of the country… the supremacy of the Constitution.... is no longer unqualified."
Labeled as infamous by some legal experts the "Doctrine of Necessity" was employed first by Justice Munir Chief Justice of the Federal Court in the Dosso Case in 1954 challenging the Pakistan Governor General Ghulam Muhammed's action of dissolving the constituent assembly, which was held ultravires of the constitution. Munir was offered Deputy GG in return for the judgment. When Munir agreed, the GG went back on his promise. Munir actually wept in public and declared that he had given a wrong judgment, as reported by a high government service holder.
Famous jurist A.K. Brohi helped General Zia-ul Haq to formulate the "Doctrine of Necessity" thereby falsely justifying his dictatorial rule.
The Doctrine of Necessity was rejected by the Supreme Court headed by Justice Hamoodur Rehman in 1972 in the Asma Jilani Case also declaring Yahya Khan as a usurper of power. But the same Supreme Court again accepted it in the Nusrat Bhutto case in 1978 where in the Attorney General's argument as reported was that even 'Allah allows us to eat pig's meat if other halal food is not available.'
[Farida Shaikh is a freelance independent writer]