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 master-architect 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."

case of E.K. Sallah v. Attorney General the

Likewise in 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.

ATTORNEY GENERAL OF FIJI AND ANOTHER V MARIKA VUKI SILIMAIBAU

AND ANOTHER

[2004] FJCA 17

BY SURUJ SHARMA[*]

This is an appeal heard by the Fiji Court of Appeal in its most recent session on 17 March
2004. The decision, which was delivered just two days later is rather short when one
compares it to other cases where constitutional issues are raised and decided. The case is
unreported at present and no appeal has been filed challenging this decision.
HISTORY OF PROCEEDINGS

In the Sugar Cane Growers Council Triennial Elections in the year 2001, the Second
Respondent National Farmers Union (NFU) gained 21 seats and its rival the Growers
Association 16 seats. An independent candidate also won a seat. In exercise of his powers
under the Sugar Industry Amendment Decree 1992 the Minister of Sugar Industry who is the
Second Appellant in this Appeal appointed 8 more members to the Council. The Honorable
Minister’s appointees included 3 unsuccessful candidates from the Growers Association who
were actually not elected in the Triennial elections. There were none from the NFU. The
appointment of these 8 members resulted in the NFU losing control of the Council, which in
the immediate past it has always done so.

On 30 May 2001 proceedings were filed by the Respondents in the High Court at Suva
seeking to challenge the nomination by the Sugar Industry Minister in the Caretaker
Government of Honorable Laisenia Qarase of 8 persons as members of the Sugar Cane
Growers Council. The appointments were made on 8 May 2001 by the Minister Mr. Kaliopate
Tavola in exercise of his powers under the Sugar Industry (Amendment) Decree 1992.

It is to be noted that although this Decree was issued by the Caretaker Government of Sitiveni
Rabuka, no challenge had previously been made in the Courts of Fiji as to its validity. From
the facts set out in this case it is unclear whether appointments were previously made under
this Decree. This however was not the first occasion on which the power to appoint had been
exercised by the Honorable Minister. Be that as it may, the points in issue have at their base
the constitutional question of the validity of the Caretaker Government of Laisenia Qarase
which has been the subject of discussion in several decisions starting from the celebrated case
of Chandrika Prasad v Republic of Fiji. [2001] 1LRC 665; [2001] NZAR21.

Although these proceedings were initially begun by an originating summons, it appears that a
Notice of Motion pursuant to the High Court (Constitutional Redress) Rules 1998 was later
issued. The relief sought was for declarations. His Lordship Mr. Justice Gates, granted the
remedies prayed for although the Order was made after some 2 years from the date of the
commencement of the proceedings. His Lordship framed the orders as follows:

1. The purported appointments of the Minister for Sugar [and the Acting Minister
for Sugar] are null and void and contrary to the provisions of the 1997 Constitution.
2. The Sugar Industry (Amendment) Decree 1992 is invalid and of no legal effect.
3. The exercise of powers by the purported Minister for Sugar in nominating 8
members to the Sugar Cane Growers Council is null and void and of no effect.

In making his decision His Lordship revisited some of the events following the May 2000
Coup and took cognizance of matters and pronouncements made by the Courts in the
following decisions:

(a) Republic of Fiji & Ano v Prasad [2001] NZAR 385

(b) Koroi v Commissioner of Inland Revenue [2003] NZAR 18

He also relied on the following decisions of other Local High Court Judges in arriving at his
finding:

(a) Akuila Yabaki & Seven Others v The President (Unreported) Suva High Court
HBC119.01S; 11July 2001.
(b) Audie Pickering v State (Suva High Court Criminal Appeal)
(c) Tropic Wood Industries Ltd v Apenisa Balewakula & three Others [Unreported]
Lautoka High Court Civil Action HBC 158.97L 4 October 2002.

In addition to the above cases His Lordship also referred to the following decisions:

(a) Adegbenro v Akintola [1963] AC 614

(b) Simpson v AG [1955] NZLR 271
(c) Pakistan Petition Case [Per I H Khan CJ]
(d) Clayton v Heffron [1961] 105 CLR 214
(e) Mitchell v DPP [1986] LRC (Const) 35 at 88
(f) Madzimbamuto v Lardner-Burke [1969] 1AC 645

His Lordship went at length to discuss the appointment of the caretaker government of
Laisenia Qarase and in conclusion was not satisfied that the appointment was appropriately
made (as per provisions of the 1997 Constitution) after the resignation of Ratu Tevita
Momoedonu. He even found Momoedonu’s appointment to be suspect based on the premise
that (former Prime Minister) Mahendra Chaudhary’s dismissal was unlawful. On this ground
the replacement would have been similarly flawed. He therefore ruled that the Minister’s
appointment was invalid in itself and that the Sugar Industry (Amendment) Decree 1992 was
also an invalid legislation.

Although in the appeal papers the Appellants had filed challenge to each of the above three
declarations, at the hearing they did not wish to proceed against the first and third. Therefore
the sole question that was required to be decided by the Court of Appeal was whether the
Sugar Industry (Amendment) Decree of 1992 was invalid and of no legal effect.

THE SUGAR INDUSTRY (AMENDMENT) DECREE 1992

The relevant Decree was made on 6 February 1992. It was signed by the First President Ratu
Sir Penaia Ganilau. In the premable of the Decree it was stated that:

In exercise of the powers vested in me as President of the Sovereign Republic of Fiji and
Commander in Chief of the Armed Forces, and acting in accordance with the advice of the
Prime Minister and the Cabinet [the Decree is issued].

Their Lordships in the Court of Appeal were satisfied that the Decree was validly made at
least as regards to its initial promulgation.

Relevant to this decision is Clause 4 of the Decree, which amended section 32 of the Sugar
Industry Act. The Decree had the effect of substantially reducing the size of the Council and
gave the Minister of Sugar Industry the option of appointing 8 members to the Council. It was
this change and the manner in which the appointment by the Minister was made that formed
the basis of challenge to the Decree. Admittedly the Council was reduced substantially in its
size but no argument was advanced in either Court of any adverse effects this reduction would
have on the performance of the Council.

It is noted that whilst His Lordship Mr. Justice Gates concentrated in his Judgment on the
validity of the Caretaker Government and other matters relevant to it’s appointment he
appears to have given scant regard to sections 194 and 195 of the Constitution Amendment Act
1997. The Court of Appeal read these sections carefully and noted their importance (without
being critical in the writing of them or where in the constitution they ought to have been
sited).
In his Judgment His Lordship Mr. Justice Gates referred to his earlier decision in Karoi’s case
and quoted a paragraph from it. In essence His Lordship seems to have expressed his “gut
feeling” and unfavourable stance towards Decrees generally and the need for Parliament to
review them. Their Lordships in the Court of Appeal were not persuaded by Gates, J’s strong
statements as to the validity of the Decree. It would seem that the Court of Appeal did not
wish to discuss their general view on the issue of Decrees. Instead, the Court of Appeal
employed ordinary statutory interpretation methods in reaching their decision.

THE CLAIMS

The Respondents in seeking declaratory orders claimed that:

1. The purported appointments of the Minister for Sugar [and the Acting Minister for Sugar]
are null and void and contrary to the provisions of the 1997 Constitution.
2. The Sugar Industry (Amendment) Decree 1992 is invalid and of no legal effect.
3. The exercise of powers by the purported Minister for Sugar in nominating 8 members to the
Sugar Cane Growers Council is null and void and of no effect.

THE LEGAL ISSUES

The validity of the appointment of the Caretaker Government of Laisenia Qarase and further
that of his Caretaker Ministers was one of the issues on appeal. The validity of Decrees based
on the doctrine of necessity which ordinarily allows a limited life to ”other legislative
vehicles” such as the Decree, and the need to subsequently ratify them by a duly elected
Parliament was another issue that comes up for a legal determination in the context of this
case.

THE OUTCOME IN HIGH COURT

His Lordship Mr. Justice Gates in the High Court found that the appointment of Mr. Qarase as
Caretaker Prime Minister and the appointment of all the Caretaker Ministers including the
Minister of Sugar were unconstitutional and therefore unlawful. He ruled that the appointment
by the Sugar Minister of 8 members to the Sugar Cane Growers Council was wrong and
unlawful.
When the decision of the High Court is carefully analyzed His Lordship appears to have taken
a two-pronged approach in dealing with the issues before him. First, he made a finding that
the Caretaker Government and Caretaker Ministers were appointed in furtherance of previous
unlawful acts and therefore the Minister could not validly make nominations to the Council.
Secondly, and more importantly he found that the Sugar Industry (Amendment) Decree 1992
had not been subsequently ratified by Parliament. Additionally as the Decree amended the
democratic method of election of members of the Council and by reducing rights of growers it
ought to be struck down. He declared it invalid and of no legal effect. In conclusion the
learned judge made all 3 declaratory orders as set out above under the heading The Claims.

THE DECISION OF THE APPELLATE COURT

From the outset the Appellants challenged each of the three declarations made by the High
Court. Since at the time of the hearing of appeal it was clear to the parties and to the Court
that the next election of the Council was to take place in April 2004. Hence the decision the
decision of the Court of Appeal was made prior to, that date. However, as a result of the
passage of time it was deemed no longer necessary to have the Appeal Court to decide on
validity or otherwise of the Ministers as such.

The Court was therefore left to deal with the only issue of the validity of the Sugar Industry
(Amendment) Act 1992. In making its decision the Court of Appeal first found that upon
application of simple statutory interpretation rules the aforesaid Decree was validly made as
in the making of it all preconditions were satisfied. Secondly, it decided that in accordance
with section 194 “written law means an Act and Act means an Act of Parliament or Decree”.

The Court’s discussion of sections 194 and 195 of the 1997 Constitution Amendment Act
coupled with the mention of clause 7 of the 1990 Constitution under which the relevant
Decree was made puts to rest any doubts about the issuance and validity of the said Decree or
its legal effects and consequences.

In its concluding remarks the Court was even prepared to deal with the argument of the
Appellants that in 1987 the revolution (or military takeover) was successful, thus the acts of
the revolutionary regime became legitimate from 14 May 1987. It is noted that for the first
time an argument was presented to the Court on the events of 1987 and the making of a
successful revolution. Regrettably given the time constraints (of delivering a decision before
the scheduled triennial Sugar Growers Council election in April 2004) the Court of Appeal
was unable to shed more light on the above issue. However, it appears that the Court may,
should the opportunity so arise, delve deeper into this particular issue at an appropriate
occasion in the future. In the Judgment their Lordships said that :

the doctrine of necessity, counsel submitted, has no application when a revolution is finally
successful... -
Had more time been available for the hearing of the appeal and the preparation of the
judgment, we may well have done so, since we appreciate that the issues raised in the
submissions may have relevance in other circumstances (at page 6)

Their Lordships are to be complimented for taking the initiative in dealing with this appeal so
promptly that it cleared the way for the preparation of Growers Council elections.

Legal Determinations Made by the Court of Appeal

Several legal principles could be extrapolated from the decision of the Court of Appeal.

First, the Court will recognize the making of law by decrees where the appropriate
constitutional procedures have been followed and the making of law by decree was envisaged
by the Constitution.

Secondly, should there be an important Constitutional provision wherever sited in the

Constitution and if such a provision is clear and unambiguous the Court will, give a full, fair
and liberal interpretation of the provision to meet the objectives of the lawmakers.

Thirdly, interpretation and /or definitional provisions in an Act will not be disregarded by the
courts; instead they will be called into aid to help determine the appropriate meaning as
regards matters raised in adjudication.

Ratio Decidendi

In the 1997 Constitution of Fiji the definition of ‘Act’ means an Act of Parliament or a
Decree. Therefore, the Sugar Industry (Amendment) Decree 1992, was for the purposes of the
provisions of the Constitution an Act, as such it was within the words ‘written laws’ as
defined and therefore was within subsection (e) of Section 195. Thus on the authority of an
express provision in the Constitution, the said Decree continued in force as if enacted under
the Constitution.

Obiter Dicta

If the argument that once a revolution is successful, the legislative and administrative acts of
the usurpers are legitimated ab initio is applied to the 1987 revolution or takeover which
began on 14 May 1987 it could be found that the ‘revolution’ was successful. Hence there is
no need for any subsequent validation of any legislative acts of the revolutionary regime (by a
Parliament which has been created by the revolutionary regime in the first place).

COMMENT

The litigation arose out of the dissatisfaction on part of the National Farmers Union which lost
control of the Sugar Cane Growers Council due to additional appointment of 8 members by
the Minister of Sugar Industry. The proceedings were initially made in the High Court at
Lautoka. Interestingly enough these proceedings were filed around the time Chandrika Prasad
decision was made in the High Court. The eight government appointees to the Growers
Council apparently tilted the scales in favour of the Sugar Cane Growers Association, which
was able to form the majority on the Council.

Their Lordships in the Appeal Court did not have the opportunity to consider all the
constitutional issues primarily because of the urgency of their decision in light of the then
pending elections of the Growers Council in April 2004. They were also constrained by the
fact that the Appellants abandoned their first and third grounds. Thus significant constitutional
issues raised in the judgment of His Lordship Justice Gates and arguments advanced by the
Appellants in regard to the successful revolution of 1987 remain unanswered in the judgment
of the Court of Appeals.

It is hoped that in the near future some of the remaining questions raised in this appeal will be
again canvassed before the Court of Appeal and their Lordships will find it appropriate to
carefully and at length deliberate and give their decisions on these issues. The issues raised by
the revolution (or) military takeover of 1987 are important and are likely to arise again in the
future. The sooner these are settled the better it will be for all concerned in this and other
jurisdictions.
Once again, their Lordships must be complimented for their very timely delivery of this
decision thereby making the recent Sugar Cane Growers Council elections to take place as
scheduled in April 2004. It is hoped that other opportunities may arise in the near future to
discuss these issues of government nominees in the Sugar Cane Growers Council and the
criteria for their selection.