Law Opinion
Constitutional offence of sedition revisited
Khan Khalid Adnan
It is surely an interesting point to note for those who are concerned with the Constitution of the People's Republic of Bangladesh that an offence has been inserted in this Constitution by way of the new Article 7A of the Constitution (section 7 of the Constitution (Fifteenth Amendment) Act, 2011). Article 7A provides the offence of abrogation, suspension, etc of the Constitution which states:
'(1) If any person, by show of force or use of force or by any other un-constitutional means (a) abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article; or (b) subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article, his such act shall be sedition and such person shall be guilty of sedition.' Article 7A further states:
'(2) If any person (a) abets or instigates any act mentioned in clause (1); or (b) approves, condones, supports or ratifies such act, his such act shall also be the same offence.'
Therefore, Article 7A creates the offence of sedition once again which already exists in the Penal Code since 1860 but in a completely different form in section 124A of the Penal Code 1860. Section 124A defines the offence of sedition exclusively that can only be committed against the Government established by law. Sections 123A and 505A of the Penal Code also deal with similar sort of offences against the State.
The substances of the two offences as contained in Article 7A of the Constitution and section 124A of the Penal Code are clearly different though their names are the same, i.e. sedition. Taking the substance of Article 7A into account, the crime of high treason recognised in many countries requires consideration. While protection of at least the existence and independence of the State is the concern of the crime of high treason, protection of the authority of the lawful Government is the main concern of the crime of sedition (R v Endemann). Moreover, the definition of sedition in Article 7A of our Constitution has surprising linguistic and thematic resemblance with the definition of high treason as provided in Article 6 of the Constitution of Pakistan. An analysis of legal provisions of some international laws dealing with the same offence as covered under Article 7A of our Constitution may reveal that the term 'high treason' rather than 'sedition' might have been more appropriate in this context though opinions may vary in this regard. Again, as the offence of sedition is already there in the Penal Code in a comprehensive form, this new constitutional offence of sedition may definitely cause confusion as to the implications of these two different offences bearing the same name.
In respect of sentencing, Article 7A states '(3) Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws.' The problem is what the terms 'other offences by the existing laws' refer to. Are they other similar offences, as the context suggests, as contained in sections 124A and/or 123A of the Penal Code the highest punishments of which are life imprisonment and ten years' rigorous punishment respectively or are they any other offences for which the highest punishment of death sentence is also available (section 53, Penal Code)? In this regard, Article 6 of the Pakistan Constitution that states that the parliament shall by law provide for the punishment of persons found guilty of high treason and section 3 of Article 3 of the US Constitution that states that the Congress shall have power to declare the punishment of treason are similar provisions regarding the sentencing of treason and are worth mentioning. In view of the matter, the constitutional offence of sedition in Article 7A is not entirely clear as to the quantum of punishment which is an indispensable feature of criminal legislation.
Consideration should also be given to the issue as to whether the offence can be divided into degrees though the literal interpretation of Article 7A does not suggest any. This offence is quite large in scope that may have the potential to bring within its ambit the person who has slightly fallen within an area of the offence without causing any slightest harm or attracting any slightest evil which the law has been aimed at along with the person who has actually committed the offence in a real sense but by virtue of the wording of the offence, they both will get the highest punishment that violates the basic principle of criminal law that offender should be punished in accordance with the degree of the offence. A thorough reading of Article 7A would reveal that the offence consists of grave criminal activities and supposedly innocent activities (e.g. activities pursuant to legitimate exercise of freedom of expression) both at the same footing and with the same punishment that may at times cause grave miscarriage of justice. The vague, though broader, definition of sedition in Article 7A along with the vague and confusing expression regarding the sentencing may well become a source of harassment, abuse of process and unwanted political circumstances considering our socio-political reality.
The effect of this sedition offence in Article 7A should also be considered in the light of Article 39 of our Constitution guaranteeing freedom of thought and conscience, and of speech bearing in mind that democracy is one of the fundamental principles of state policy (Article 8). On the issue of the offence of sedition and high treason, there are thousands of articles written by many known jurists addressing the problem caused in a democratic society regarding the freedom of expression in the context of these offences. The problem with Article 7A offence is that constructive, logical and meaningful expression by a citizen may also fall within the ambit of this offence which may create an unnecessary fear of sanction rendering the citizens and the media being silent even if when voice is reasonably required, not to violate the solemnity of our Constitution but to attract attention on some issues.
Serious problem with this constitutional offence of sedition lies with the procedural respect. Which type of offence is it? Is it bailable? Which Court is competent to try the offence? Is the Code of Criminal Procedure 1898 applicable here? So many questions remain unanswered. Moreover, further problems arise as Articles 141B (suspension of provisions of certain articles during emergencies) and 141C (suspension of enforcement of fundamental rights during emergencies) still remain in the Constitution un-amended whereas Article 7A of the same Constitution makes suspension of the Constitution an offence. Even taking the contexts into account, these Articles are extremely difficult to be reconciled with each other and seemingly create inconsistencies leading to more ambiguities and controversies.
Oliver W. Holmes, JR. has famously stated that the life of the law has not been logic: it has been experience. The source of the constitutional offence of sedition as contained in Article 7A has undoubtedly been the bitter experience of the lawful governments of this country regarding some military takeovers. On the one hand, it is true that it is very easy to criticise from the jurisprudential and legal perspective when a controversial law like this has been enacted and that it is not expected in a system of parliamentary democracy that the Constitution would be suspended by unrepresentative governments. Again, on the other hand, it should not be forgotten that Constitution being the supreme law of the land should not contain any vague and ambiguous provision and a severe constitutional offence like this requires further clarification in terms of definition, sentencing, forum, procedure etc. The laws of Pakistan and USA, in this regard, leaving the issue of punishment to parliament can provide the law-makers with some useful insights to remedy the drawbacks that are vivid in the law. The ambiguities of this provision in various aspects also require further clarification.
The writer is Barrister-at-law; Lincoln's Inn.
