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Martial law and military intervention: role of the judiciary

BARRISTER MD. ABDUL HALIM
ON 29th August a Division Bench of the High Court Division comprising Mr. Justice ABM Khairul Hoq and Justice ATM Fazley Kabir gave verdict declaring the 5th Amendment to the Constitution of Bangladesh illegal and unconstitutional. The judgment is first of its kind in juridical history of Bangladesh. It has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between August 1975 and April 1979. The court held that usurpation of the state power through martial law proclamation, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional and those who have proclaimed martial law so far liable to sedition charges. The court in its 22-point rulings held specifically that "the violation of the Constitution was a grave legal wrong and remains so for all time to come. It cannot be legitimised." The Court also observed that due to the necessity of the state, "such a legal wrong can be condoned in certain circumstances" invoking the Doctrine of Necessity.
Martial law in constitutional jurisprudence
In constitutional jurisprudence martial law means the kind of law which is
generally promulgated and administered by and through military authorities in an effort to maintain public order in times of insurrection, riot or war when the civil government is unable to function or is inadequate to the preservation of peace, tranquillity and enforcement of law and by which the civil authority is either partially or wholly suspended or subjected to the military power. And as soon as peace is restored, the military authority goes back to its barrack handing over power to the civil government. This type of martial law is known as martial law in proper sense. The French institution of 'State of Siege' provides the glaring example of martial law in proper sense. Under article 36 of the French Constitution the Council of Ministers may declare martial law (State of Siege) but only the parliament may authorise its extension beyond 12 days. However, martial law that we are concerned here is not martial law as it is understood in the proper sense of the term. It is military intervention into politics or extra-constitutional martial law which we are concerned with here.
Martial law in the sense of military intervention into politics
The displacement of civil governments by the military force has been a common feature in most countries which have gained independence from colonial rule in the second half of the twentieth century. Wherever the social and political condition deteriorates and an ambitious general is at hand,
the country goes through a period of military rule. This military rule suddenly comes with the declaration of martial law and such declaration is not generally a wilful declaration of the executive who has constitutional authority to do so; rather it is declared either by the military coup leader himself ousting or killing the existing governing leaders or by the head of the state under gun-point.
Again, many countries' Constitutions do not provide any provision for martial law but the military comes to power declaring martial law by force in an extra-constitutional way. From legal point of view this type of martial law is void ab initio and nothing to do with constitutional martial law.
Doctrine of efficacy
This doctrine is also called the doctrine of revolutionary legality which is based on the positivist theory of the efficacy of the change or revolution (coup d'etat) expounded by Hans Kelsen. In his book "General Theory of Law and State" Kelsen, under the heading of "the Principles of Legitimacy", has given a logical explanation on the elements and effects of a revolution. According to Kelsen, a revolution means a successful revolution and a successful revolution must have the following two elements: (i) The overthrow of existing order and its replacement by a new order; (ii) The new order begins to be efficacious because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new
order.
If these two facts are associated with the new order, then the order is considered as valid order and a law creating factor. So the success of a revolution or, in other words, the efficacy of the change would establish its legality. This Kelsen's theory of efficacy was first applied in State v. Dosso case by
the Pakistan Supreme Court. Pakistan, after nine years of its independence, had been able to adopt and implement its first republican constitution in 1956. Then the Governor-General Iskander Mirza was elected as the first President under the constitution. After the constitution was adopted, there was naturally a sense of relief in the
political circle who expected full implementation of the constitution after the first general election to be held in 1959. But such expectations proved unreal as governments after governments came and went resulting in an extreme political chaos and instability both at the centre and in the provinces.
President Iskander Mirza did not play the democratic role of an impartial balance under the constitution; rather being directly involved in party politics, he became the masterarchitect of these chaos and instability. For his power-expectation and undemocratic and conspiratorial activities it was decided by the politicians that Iskander Mirza would not be elected as the president in the next election. When the country was preparing for the general election to be held in February, 1959, Mirza finding himself unable to rally support among the politicians for his re-election, by a proclamation on the night of 7th October, 1958 abrogated the constitution of 1956, dismissed the Central and Provincial governments; dissolved the central and provincial legislatures and declared martial law throughout the country.
In doing this Mirza was supported by the Commander-in-Chief of the Pakistan Army, General Mohammad Ayub Khan who was also appointed as the Chief Martial Law Administrator. Following the proclamation of martial law the Law (Continuance in Force) Order was promulgated.
The legality of Mirza's Proclamation of martial law and the military government came up for consideration in State v. Dosso case. The Pakistan Supreme Court took resort to the positivist theory of Hans Kelsen and declared the martial law and military government of Pakistan valid on the basis of the doctrine of efficacy as explained by Kelsen. The substance of the judgment was that since the constitution was abrogated and its government came to power by imposing martial law and since there was no protest among the people, the coup was a successful one, the martial law and military government were legally valid. Munir C.J. maintained that victorious revolution or successful coup d'etat was an internationally recognised legal method of changing a constitution, and the revolution having become successful in Pakistan it satisfied the efficacy of the change and became a basic law-creating fact.
The judgment delivered in Dosso's case had to face severe criticisms on the one hand and on the other hand, it had a great impact, for it gave recognition to an unconstitutional government which became a pattern of 'change' in the Commonwealth countries and later on, this decision has been refereed to with approval in courts of many countries like Nigeria, Rhodesia, Ghana, Uganda etc. In Uganda v. Commissioner of Prisoners Exparte Matuvo the Ugandan High Court following the decision of Dosso's case held that the constitution of 1966 of Uganda which was made by
military government was a product of a revolution and it would be regarded as valid and the supreme law of Uganda. Similar verdict was given in R V. Ndholvu by the Rhodesian High Court and also in Awoornor Williams v. Gbedmah by the Supreme Court of Ghana.
The overruling of the doctrine of efficacy
In Asma Jilani v. The Government of Punjab the same Supreme Court of Pakistan overruled the decision of Dosso's case and held that the martial law proclaimed by Yahya Khan was illegal and that his assumption of power on 25th March, 1969 was wholly unconstitutional and could not be recognised as valid. As to the doctrine of efficacy the court said : "The principle laid down in Dosso's case is wholly unsustainable and cannot be treated as good law either on the principle of stare decisis or even otherwise."
Likewise in the case of E.K. Sallah v. Attorney General the Supreme Court of Ghana, after the constitution of 1969 came into effect, was called upon to determine the legal implications of the military coup d'etat on the pre-existing legal system. The court held that the suspension of the constitution of 1960 by military coup had no effect of destroying the legal order.
Continued
Dear readers, Next part will be published on October 08, 2005. - Law Desk
The author is an advocate of the Supreme Court of Bangladesh.