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The constitutionality of Joint Drive indemnity ordinance

SHEiKH HAFiZuR RAHMAN
THE recently promulgated Joint Drive Indemnity Ordinance raised a number of questions pertaining to constitutional issues. Those are so vital if not taken into account judiciously that can impair the positive flow of constitutionalism. Together with Second, Fourth, Fifth, Seventh and Eighth Amendments this will be considered serious blow on the democratic and human rights based structure of the Constitution.
A special cabinet meeting approved an Ordinance styled Joint Drive Indemnity Ordinance, 2003 on January 9, and President Iajuddin Ahmed signed the Ordinance at the night of that day. The Ordinance says that, "It is necessary and pertinent in the interest of the people to indemnify all the persons, including the members of the armed forces and law enforcers, for all the acts done during the joint drive from October 16, 2002 till the working day of January 9, 2003."
The first question arises by the Ordinance is why the members of joint force require indemnity. If they were deployed as per the rules of law and they dispensed their activities within lawful limits in that case a provision of indemnity is superfluous. The promulgation of the Indemnity Ordinance recognises that the members of joint forces crossed the limits set forth by the Constitution and other existing laws. When the joint force (in fact the armed forces) was deployed it was presumed that they would dispose of their duties to curb criminality within the boundary of law. But from the very first day their activities were not within the limits of the Constitution and law. As many as 44 people have died in custody and hundreds have been injured since the drive begun, sparking off criticism for violation of some very basic human rights. This was clear violation of Articles 31, 32 and 35 of the Constitution. Article 31 says that, "To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen no action detrimental to the life, liberty,
body reputation or property of any person shall be taken except in accordance with law." Article 32 provides that, "No person shall be deprived of life or personal liberty save in accordance with law." Article 35(5) unequivocally says that, "No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment." During the joint drive these basic rights of citizens were trampled by the members of armed forces. They also defied the rights as to arrest and detention and existing judicial system.
To curb criminality members of joint forces can arrest any person against whom allegation of criminal activities have been lodged. In that case all the constitutional requirements should be met. After arrest they can interrogate the arrested person, then he should be submitted to the jurisdiction of the judicial authority for fair and speedy trial. That is the procedure of existing judicial system for adjudicating the allegations of criminality. But the way the members of joint force caused death of 44 persons and injury of hundreds of people that was clear violation of the above mentioned three basic constitutional rights of citizens and defiance of existing judicial system. Due to acting beyond the limits of the Constitution the members of joint force require indemnity. That's why the language of the Ordinance went on saying no one can seek justice and no complain can be lodged against any person involved with the joint drive for any arrest, death, torture, violation of rights and if any damage of physical, mental or financial nature between october 16 and January 9. This language is witnessing how the basic rights of citizens were trampled, how the members of joint force are indemnified who have been accused of violating those rights and how the right to seek justice by aggrieved persons is denied by the recently promulgated Ordinance.
The Ordinance says that, no complain can be lodged against the person or persons who had ordered the Operation Clean Heart. And if cases or proceedings were filed in any court regarding any act during the joint drive it
would automatically be cancelled, the Ordinance says. Thus the Ordinance has ousted the jurisdiction of court and denied the right of every citizen to be treated equally before law. Article 27 of the Constitution provides that, "All citizens are equal before law and are entitled to equal protection of law." Due to this Ordinance the aggrieved persons are deprived of filing a suit with any court of law thus causing denial of citizen's right to get equal protection of law.
The representatives of government and the Attorney General told that, the Ordinance was promulgated as per the provision of Article 46 of the Constitution, so it is lawful. Obviously its apparent complexion is lawful. If we consider Article 46 separately without any reference to Preamble and Article 7 of the Constitution and try to assimilate the text of the Ordinance then it appears to be constitutional. Article 46 of the Constitution provides that, Parliament may by law make provisions for indemnifying any person in the service of the Republic or any other person in respect of any act done by him (I) in connection with the national liberation struggle or (II) the maintenance or restoration of order in any area in Bangladesh or (III) validate any sentence passed, punishment inflicted, forfeiture ordered, or (IV) other act done in any such area. Article 46 provided some specified category when Parliament can indemnify any person in the service of the Republic. The present Ordinance pertains to second category of Article 46 as the joint force was deployed to improve law and order situation and they have been indemnified for their activities. If we look into the matter along this line that will not give us complete picture and that will undermine the inherent spirit of the Constitution.
Article 46 is an exception to the equality before law clause of the Constitution and provides a mechanism to meet up emergency situation. Nevertheless Article 46 should not be effected in any way which might undermine the
inherent spirit and philosophy of the Constitution clearly articulated in the Preamble and Article 7 of the Constitution. The Preamble of the Constitution clearly declares that, " it
shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens." Article 7 of the Constitution says that, "All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution." Nothing should be done in violation of the philosophy and inherent spirit of the Constitution clearly written in the Preamble and Article 7 of the Constitution. From this point of view the recent Indemnity Ordinance is anti-constitutional. This Ordinance also violates the basic structure of the Constitution.
The doctrine of basic structure, as old as the making of the Constitution, was expounded by Chief Justice Marshall in Marbury vs Madison. (2 L. Ed. 60.) The Kesavananda's case (AIR 1973 SC 1461) was the first judicial formulation of the basic structure principle in Indian jurisdiction in its nourishing stage. The Supreme Court of Bangladesh applied the basic structure principle in the Eighth Amendment case. (1989 BLD (Spl) 1.) According to basic structure principle, in written constitution there are certain provisions, written or implied, which are basic and constitute foundation and structure of the Constitution. The negation of these provisions would negate the Constitution itself and hence cannot be amended. So, any amendment or any law, which aims to destroy the basic structure of the Constitution, is void. Shahabuddin Ahmed, J. in the Eighth Amendment case listed, inter alia, supremacy of the Constitution as the solemn expression of the will of the people and fundamental rights to be the basic structures of the Constitution. The recently promulgated Indemnity Ordinance made in defiance of the Preamble and Article 7 of the Constitution is clear violation of the basic structure principle of the Constitution.
After the independence we got a civilized and secular constitution. It had to encounter serious blow both during civil and military regimes. The polity of this country should have taken all the measures to advance the positive trends of constitutionalism. But if the members of joint force tramples basic human rights of the citizens and then they are indemnified by Indemnity law, in line with the present Ordinance by a democratically elected government it will only endanger the nascent democracy, constitutionalism and future of this country.
Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, University of Dhaka.