Law campaign
PIL the name of people's power
Najmul Hasan
What is the nature of the constitutional mandate that enables Public Interest Litigation (PIL) to be recognised and accepted in Bangladesh? A uniqueness of the Bangladesh constitution is its autochthonous nature, which in consequence highlights the people's power concept. Accordingly since this autochthonous constitution reflects the power of the people a PIL approach so mandated.
Development of a guiding principle for PIL is the 8th Amendment 69 case of 1989 where it was declared that parliament couldn't alter the basic structure of the constitution and decentralise the supreme court. This was not a case on social justice but related to the power relations debate it came as an inspiration to the judges and lawyers favouring activism and a greater role for the judiciary. The judges declared the need for progressive and dynamic interpretation of the constitution. They reaffirmed and re-establish the principle that while interpreting the constitution, the intention of its makers and its spirit must be taken into consideration and an Article should not be looked into in isolation.
Accordingly, an interpretation requires consideration of the so-called unique features of the constitution of Bangladesh one of which is its autochthonous nature. BH Chowdhury, CJ said, “Our Constitution has preceded form the people and it is not rhetorical flourish. Our Constitution is not the result of the process of the Indian Independence Act 1947 though we have taken inspiration from the wisdom of the past. Ours is an autochthonous Constitution.” The first hint of an emerging unique Bangladesh argument in favour of PIL came in the same year form Ishtiaq Ahmed, a leading constitutional lawyer. He argued that a Constitution always carries the spirit of the age and the Constitution of Bangladesh reflects the historical realities of the time of its creation and contain a vision and dream of the unfolding future. Framers utilised the wisdom of the two decades long experience gained by the Indian and Pakistani Constitutions and enacted a Constitution which is distinctively our own. Then he said, “The emphasis is relevant and important because it is a cardinal principle of interpretation of constitution that in interpreting a word or a provision in the constitution that constitution must be read as a whole, every part of it throwing light on the other, every word used deriving its meaning and colour from the total context of the constitution. The preamble and part which follows the preamble, particularly Article 7, Fundamental Principle of state Policy, the Fundamental Rights, the scheme of limited government all these exist not in isolation but as parts of one whole document.”
In December 1994, Quazi Shafiuddin J in the Parliament boycott case resorted to one of the distinctive features of the Constitution, its autochthonous nature. He observed that Article 7 declares that all powers in the Republic belong to the people must be exercised on their behalf under the authority of the Constitution which is, as the solemn expression of the will of the people, the supreme law of the Republic. Therefore, a citizen and voter is a member of the whole people of Bangladesh and is a owner of power along with other citizens of the country. Since this power is to be exercised under or by the authority of the Constitution, each and every citizen of Bangladesh shall call any violation by anybody in question. He added a discussion of the preamble in favour of his argument and pointed out that under the preamble the people are to safeguard, protect and defend the Constitution. The Parliament boycott case attempted to provide an indigenous theoretical framework without resorting to Indian or Pakistani constitutional arguments. This was instrumental in strengthening the apprehension that attempts to follow other jurisdictions without appreciating the local situation are preventing the success of PIL.
PIL has recently been included in the topical talking judicial agenda (if not propaganda), perhaps, following or being enlightened by the trends in other legal systems and least, quite regrettable, as a principle origination from the aspirations of the land. As a result, some attempts have been made in Bangladesh, often in misplaced and misconceived manners in the name of PIL.
Dr. Mohiuddin Farooque advocated autochthony constitutional litigation' (ACL) and argued that to build a credible national jurisprudence the functional constructional should be autochthonic. By 1996, there appeared to be a consensus among activists, leading constitutional experts, lawyers and judges as to the uniqueness of the constitutional scheme, necessity of inclusive interpretation and autochthonic nature inspiring public interest matters. All that was needed was a pronouncement by the apex Court, the Appellate Division, in order to remove the reservations of conservative judges and lawyers.
The leading judgment was delivered by Justice Mustafa Kamal. Earlier in 1991, he refused standing in the Sangbadpatra case as not being a PIL and in the same case declared that the Indian Constitutional position is different and can't be blindly applied to Bangladesh. He further examined this theme in 1994 and was waiting to see "how the Supreme Court of Bangladesh finds its own answer to this issue". In a 1995 lecture, he took pride in the autochthonic nature of the Constitution. In that case, Mustafa Kamal J. begins with the argument of inclusive interpretation. He states:
"Article 102 of our Constitution is not an isolated island standing above or beyond the sea level of the other previsions of the constitution. It is a part of the over-all scheme, objectives and purposes of the constitution. And its interpretations is inextricably linked with the
(i) emergence of Bangladesh and framing of its constitution,
(ii) the Preamble and Article 7
(iii) Fundamental Principles of State Policy,
(iv) Fundamental Rights and
(v) the other provisions of the constitution."
He then proceeds to discuss each of the five categories separately. Discussing the first point, he denies that the Bangladesh Constitution is just a replica with local adaptations of a Constitution of the Westminster model among the commonwealth countries of Anglo-Saxon legal tradition. It is not the result of a negotiated settlement with a colonial Power or consent or a foreign sovereign. Although it has been amended 13 times, it is not the last of an oft-replaced and oft-substituted constitution. This constitution is the fruit of a historic war of independence achieved with the lives and sacrifice of a telling number of people for a common cause, making it a class part from other Constitutions of comparable description. It is a Constitution in which the people feature as the dominant actor.
It was the people of Bangladesh who in exercise of their own self-proclaimed native power made a clean break for the past un-shackling the bondage of a past statehood and adopted a Constitution of its own choosing. The Constitution, historically and in real terms, is a manifestation of what is called "the People's Power". The people of Bangladesh, therefore, are central as opposed to ornamental, to the framing of the constitution.
The writer is Advocate of the Supreme Court, Ex-Secretary General Bangladesh, Ain-Jibi Federation.
