Can stringent provision alone protect the Constitution?

THE latest changes brought in the constitution have triggered widespread criticism on many grounds. The cancellation of the caretaker government system, imposition of a ban on amending over 50 articles, maintaining Islam's status as state religion despite restoration of secularism, among other crucial issues, are being debated widely. This debate seems to have already taken a strong root and will be continued for an indefinite period.

However, we will focus on another strong debate on a crucial provision introduced in the constitution by the latest amendment. This provision provides punishment for offence of abrogation, suspension, etc of the constitution. It [Article 7A] says:

"(1) If a person, by show of force or use of force or by any other unconstitutional 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.

"(2) If any person (a) abets or instigates any act mentioned in the clause (1); or (b) approves, condones, supports or ratifies such an act, his such act shall also be the same offence.

"(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 government introduced the above provision in the constitution following a Supreme Court verdict that scrapped the Constitution 5th Amendment Act, which validated the first martial law regime.

The Appellate Division (AD) of the Supreme Court in the landmark ruling upheld the High Court Division's historic verdict of 2005 and strongly denounced martial law and suspension of the constitution. It recommended meting out suitable punishment to the perpetrators and said it is up to the Parliament to enact laws to prevent martial law. It also says: "The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their constitution, their government, established by them with their consent."

In light of the apex court's observation, the parliamentary special committee on constitutional amendment drafted this provision and recommended that the House make it a part of the constitution to bring an end to extra-constitutional take over. Law Minister Shafique Ahmed, who piloted the Constitution 15th Amendment Bill in parliament, also echoed the same view in his brief statement tagged with the copies of the bill.

In and outside of the Parliament, Prime Minister Sheikh Hasina also strongly defended this provision.

But the way the provision was introduced in the constitution drawn much criticism. And its interpretation triggered widespread debate.

Some legal experts are claiming that this provision is a serious threat to freedom of speech and expression and also to freedom of press. According to them, nobody is now allowed to criticise any of the articles of the constitution due to the stringent provision.

Some others legal experts, however, are arguing that this provision discourages "use or show of force or unconstitutional means." The constitution itself in Article 39 guarantees the freedom of speech and expression and freedom of press. So, one can still criticise any articles of the constitution by following the restrictions imposed by Article 39, they argued.

Article 39 says: "(1) Freedom of thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (a) the right of every citizen to freedom of speech and expression; and (b) freedom of press, are guaranteed."

However, implications of Article 7A require serious consideration as our political leaders exercising state power are not saints. They are experts in misusing state power and laws to suppress their political opponents. So, no one can surely say that they won't misuse this provision for their own political purpose.

As Dr. Borhan Uddin Khan, Professor, Department of Law, University of Dhaka, says: "The words 'show of force' and 'unconstitutional means' are not only wide terms but are highly contestable. It provides arbitrary scope of bringing legitimate public discussion, debate and even academic argument against the desirability of a constitutional change under the purview of 'unconstitutional means' should that be interpreted in that way. An 'unconstitutional means' is always subject to interpretation."

Interestingly, the government has yet to clarify the provision or come up with any explanation to stop growing controversy and anxiety. It has yet to make any statement assuring people that it will not misuse this provision.

Therefore, we will have to wait further to see how this provision is used, which will make it clear whether it hampers people's freedom of speech and expression.

It should be mentioned here that a similar provision was introduced in Pakistan's constitution long ago. But such stringent provision could not prevent military takeover. Military usurpers General Ziaul Haque and General Parvez Musharraf did not face charges of "high treason."

In the constitution fifth amendment case, Bangladesh's apex court denounced extra-constitutional takeover and stated: "Let us bid farewell to all kinds of extra constitutional adventure forever."

The AL-led government seems to have tried to translate those expectations into the stringent constitutional provision. But is it possible to prevent extra-constitutional takeover only by making stringent provision? The answer is -- an emphatic "no."

Introduction of the stringent provision could not remove fear of extra-constitutional takeover; it rather triggered people's anxiety and appeared as a possible threat to freedom of speech and freedom of press, which in no way strengthens the democracy. Proper practice of democracy by upholding the constitution is the bold way to fight undemocratic forces and to prevent extra-constitutional takeover.