A lawyer in quest of rule of law

Speaking about the role of lawyers, Alfred H Knight in his book, The Life of the Law, said, "The twentieth century's most important constitutional idea -- that separation of the races is incompatible with legal equality -- was introduced by lawyer Thurgood Marshall to a Supreme Court that came late and reluctantly to the idea. The revolution of press law that began in 1964 with New York Times v. Sullivan might never have occurred but for the brilliant impetus provided by the New York Times' lawyer Herbert Weschler. None of the above were governmental gifts, and if people had waited for the government to confer them, they might still be waiting, in patience and ignorance."

Syed Ishtiaq Ahmed during his life time argued many important cases. Constraint of space prevents me from discussing all of them. On the first death anniversary of Syed Ishtiaq Ahmed, I recount only a few to say, here in this land we had a lawyer who was the Thurgood Marshall and Herbert Weschler of Bangladesh.

Professor Nurul Islam is a renowned physician. In 1979 he was both Professor of Medicine and Director of the Institute of Post-Graduate Medicine and Research. Somehow, he came in for some rough treatment from the government, which issued an order that would not allow him to remain as a Professor of Medicine and Director of the institute at the same time.

Seriously aggrieved, Professor Islam came to the Chamber of Syed Ishtiaq. Syed Ishtiaq argued the case and the High Court Division declared the order of the government to be without lawful authority. Having failed to dislodge Professor Islam, the government issued an order compulsorily retiring him.

Previously some six or seven government servants unsuccessfully challenged the order of compulsory retirement passed against them, the court taking the view that the government had the discretion to retire any public servant who completed twenty-five years of service. Syed Ishtiaq led a two-pronged attack on the law relating to compulsory retirement. He argued that the Constitution seeking to establish rule of law, the government cannot claim unfettered discretion which is not informed by reason. He further argued that discretion given by law to any public functionary without providing any guideline for the exercise of discretion creates a situation where the public functionary can discriminate between citizens with impunity, and therefore any law giving unfettered discretion on a public functionary is itself discriminatory and violative of the equality clause of the Constitution. He failed in the High Court Division, but on appeal, the Appellate Division accepted both of his contentions.

In Dr Nurul Islam v. Bangladesh, the Appellate Division held that in our constitutional dispensation, no authority has unfettered discretion. The Appellate Division further held that grant of discretion to any public authority without any guideline renders the law granting such discretion itself liable to be declared void as violative of the equality clause of Article 27 of the Constitution.

This decision, passed in 1981, has been relied on in innumerable cases as an authority on the above two propositions. No other case in our judicial arena has established constitutionalism in our country so firmly on its pedestal, and no other case had a greater impact on constitutional jurisprudence in our country. It is easier to narrate the impact of the decision than to describe the guile, agility, and tenacity with which Syed Ishtiaq argued the case resulting in so great an effect on our constitutional jurisprudence. He had long discussions with me on how to proceed, what decisions to be cited, what facts were to be emphasised and so many other ticklish matters. Syed Ishtiaq decided to go for the larger constitutional issue of rule of law involved in conferment of discretion and violation of the equality clause of the Constitution. We were particularly concerned with the problem of showing the law relating to compulsory retirement to be discriminatory when it was non-discriminatory on its face. He worked hard, read out to the Bench a large number of decisions from foreign jurisdictions and argued the case with courage and conviction and we had from the majority of the learned judges a decision of far-reaching impact on the constitutional law of our country. Today this decision enables us to test the validity of any law or governmental action on the anvil of the rule of law.

In our country, contractual matters were outside the pale of writ jurisdiction. For most of the cases, the ordinary civil jurisdiction did not provide any real remedy against arbitrary actions of the governmental authorities in contractual matters, though the government and the statutory authorities play a vital role in doling out contracts and administering them. When the government most arbitrarily cancelled a contract of lease of fishery, Syed Ishtiaq challenged the action. The High Court Division declined to interfere on a view that no writ petition lay in the matter of entering into contracts and contract administration.

Undaunted by the rebuff of the High Court Division, he went in appeal before the Appellate Division and argued the case with great facility of an astute lawyer, and in Sharping Matshajibi Samabaya Samity v. Bangladesh, the Appellate Division overruled a long line of decisions handed down by the superior courts to hold that writ petition would lie where the contract is entered into in exercise of statutory or sovereign power and the Supreme Court will have power and jurisdiction to scrutinise the exercise of sovereign and statutory power. The emphasis is on the justiciability of statutory and sovereign powers of the governmental authorities. Today, wherever there is a prima facie case of arbitrary or wrongful use of the governmental power in contractual and other matters, the Supreme Court issues a rule upon the governmental authorities to show cause why the challenged order should not be set aside.

Sharping Matshajibi opened the door for judicial review of contracts which form a large chunk of governmental activity. This expanded role of judiciary in judicial review of the governmental activities had its impact on the question of public interest litigation and this decision together with Dr Nurul Islam v. Bangladesh facilitated Dr Mohiuddin Farooque to sustain, in the leading case of Dr Mohiuddin Farooque v. Bangladesh, the standing of public spirited persons, without being personally aggrieved, to litigate important questions of constitutional and administrative law.

Again, in Hyundai Corporation v. Sumikin Busan Corporation, Syed Ishtiaq's forceful argument led the Appellate Division to reiterate the power of judicial review in contractual matters and the authority of the Supreme Court to interfere with the activities of the executive authority on the ground of lack of transparency. This decision paved the way for establishment of another emerging principle of legitimate expectation. Syed Ishtiaq appeared in the Special Reference Case No 1 of 1995 and made his submissions against the doctrine of political question barring judicial review of governmental action in certain fields. The Appellate Division in answering the reference refused to apply the doctrine of political question in matters involving legal and constitutional issues. Resultantly, the judiciary is performing an activist role in judicial review of the governmental actions to an extent which was totally unthought of three decades before.

We may now deal with the famous case of Anwar Hossain Chowdhury v. Bangladesh involving the power of Parliament in making amendment to the Constitution, popularly known as the Eighth Amendment case. The case was argued in the Appellate Division mainly by Dr Kamal Hossain and Syed Ishtiaq. Dr Kamal Hossain argued generally on the principle of rule of law, the power of judicial review of any enactment passed by Parliament, and the inviolability of the basic structure of the Constitution. It was a beautiful argument heard with rapt attention by the Bench as also by the lawyers and students of law. Then Syed Ishtiaq made an anatomy of the constitutional provisions and offered compelling reasons in favour of the doctrine of basic structure of the Constitution and the power of judiciary as a basic feature of the Constitution which cannot be altered by Parliament even with two-third majority.

Day in and day out, we had long sessions in the chambers deliberating the issues involved, and read a wide range of decisions and authorities. It took us quite some time in planning and deciding upon the sequence in which the argument was to be advanced.

He analysed before the court the paramount clause of Article 7 of the Constitution, and submitted that Article 7, being basic and fundamental, is unalterable and it is an express limitation on the amending power of Parliament. He argued that when a power is granted under the Constitution, it is presumed that it will be exercised for good government and for promoting public good and not for evil design or destructive purpose, but under our constitution this is no longer a matter of presumption; it is spelt out in Article 8 of the Constitution. He went on submitting that construing the amending power under Article 142 in proper perspective it cannot be said that basic structure of essential features of the Constitution can be altered or affected in exercise of the amending power. So compelling were the reasons advanced that even the dissenting judge had to say that whatever meaning the words 'amend' and 'amendment', it cannot be disputed that they never mean 'to destroy', 'abrogate', or 'destruction' or 'abrogation'; in exercise of the power of amendment, the Constitution cannot be destroyed, abrogated, or emasculated.

Syed Ishtiaq together with Dr Kamal Hossain and other lawyers succeeded in giving a content to what is meant by limited government in which the Constitution is supreme, and not Parliament or any other institution. The decision also placed on firm footing the guardianship of the Constitution by the Supreme Court.

Another landmark case was Bangladesh v. Masder Hossain in which I had to appear for the appellant. The important question that arose was whether the judiciary is an organ of the government separate and distinct from the other two organs of the government, necessitating distinct and separate method of appointment of, and dealing with, other related matters involving, the members of the subordinate judiciary. Mr Amirul Islam led the main argument for the respondent, but Syed Ishtiaq and Dr Kamal Hossain made important contributions in their submission. Syed Ishtiaq with his usual flamboyance and clarity about the constitutional dispensation dealt with the issues involved with cool composure, and I could hardly disagree with him even though I joined issue with the other two celebrated lawyers and partly succeeded in having some of my submissions accepted by the court. It is indeed sad that the government is dragging its feet in implementing the directives given by the Appellate Division in the case.

Syed Ishtiaq worked for the development of law for public good in a difficult time when the country was under martial law. The role of the judiciary was almost in the negative. Martial law was proclaimed to be supra-constitutional. Lawyers like Syed Ishtiaq worked untiringly, and at a great risk succeeded in overturning the scales with the help of equally courageous judges. We still have a long way to go to establish true rule of law. Syed Ishtiaq and his like started the work and paved the way and it is for us to carry on their good work to shape the law for the benefit of the people.

Mahmudul Islam is a former Attorney General.