What makes the case of Major General K.M. Shafiullah & another vs. Bangladesh one of the most controversial cases in the history of Constitutional Law of Bangladesh is that while disposing of the case the Supreme Court of Bangladesh positively enforced a provision of Part II of the Constitution which has been expressly barred by Article 8(2) of the Constitution itself. As both the petitioners of this case had enormous contribution in the liberation war, the disfigurement of the places carrying the memories of historical 7th March speech of Bangabandhu Sheikh Mujibur Rahman, made them aggrieved. Therefore, the court issued a rule nisi calling upon the respondents to show cause as to why a direction should not be given upon them to form a committee to identify,inter alia, the historically important places related to our independence, after the petitioners filed a writ petition under Article 102. In the judgment, Article 24, a Part II Article that deals with the preservation of historically important places, was enforced and the foregoing rule was made absolute. Before drawing this conclusion, three important legal issues were determined. Firstly, whether the petitioners had the ‘locus standi’ or right to sue, secondly, whether there was any other ordinary law on this issue providing equally efficacious remedy, and finally, whether a provision of the Part II of the Constitution is judicially enforceable.

In this Public Interest Litigation (PIL), the petitioners were granted locus standi though lawyers of neither party argued for or against the same. However, as observed in the case of Dr. Mohiuddin Farooque vs.Bangladesh and others 49 DLR (AD) 1997, the quintessence of PIL is the doctrine of ‘bleeding heart’. Since, the petitioners demonstrated profound dedication in the liberation war which manifests that the litigation had not been motivated by any narrow self interest, they had been rightly held to have the right to sue.

A plain reading of Article 102(2) reveals that the remedy under the same is not possible where there is any other equally efficacious remedy provided by an ordinary law. There is a potential ordinary law on this matter named The Antiquities Act, 1968 to protect and preserve the places of historical or military interest. This Act, in its section 3, empowers the Government to appoint an advisory committee to identify antiquities. While other sections of the Act deal with the preservation of antiquities, section 19 further penalizes destruction, damage etc. to the places of historical interest. Though Section 30 indemnifies the Government from any legal proceeding for anything done in good faith under the Act, it can be construed that there was no such bar on  the present case as the act complained of was in contravention to the same.

However, it is surprising that the Honorable Author Judge held this Act to be not applicable to this case because it was authorized with a view to giving impact of a provision of the Constitution of Pakistan which is expressed in its Preamble. This ratio can also be criticized as Article 149 saves the existing laws subject to the provisions Constitution and according to the ‘Doctrine of Severability’, when a part of an Act is unconstitutional, the unconstitutional part is to be evacuated and remaining valid portion will keep on being valid. So, the Court did likewise had the authority to declare that part null and void and implement the valid part of the Act in the present case. Moreover, the Dhaka Metropolitan Building Rules of 2008 mandates that any construction within 250 meters of such a listed property needs permission from the advisory committee named as Nagar Unnayan Committee. Thus, the Court finally reached at an erroneous conclusion on this issue which was based on a fragile argument.

While providing the ratio of the final issue, the court held that the Government has a constitutional obligation to adopt measures for protecting all places of historic importance or interest under Article 24 of the Constitution. In this case, the petitioners alleged the Government that there had been some constructions on-going in those places of historical importance. As the government did not deny the allegation, the court directed the government to adopt measures for the protecting all places of historical importance. The Court thereby enforced the foregoing Article based on the reasoning as follows:

“…it is true that Fundamental Principles of State Policies (FPSP) shall be fundamental to the governance of Bangladesh but these are not enforceable in a court of law (meaning positive enforcement). But the Government cannot take any initiative which is in conflict with the FPSP and if it does, the court has the right to exercise its jurisdiction to uphold the provisions of Part II of the Constitution (meaning negative enforcement).” (Page 337, Para 2)

By providing this analogy, the Court tried to take a similar approach taken by Naimuddin Ahmed, J. in the case of Kudrat-E-Elahi Panir & others vs. Bangladesh 44 DLR (HCD) 179. In this case, Naimuddin, J. interpreted Article 7(2) and Article 8(2) in a way that it purported to mean that the court can negatively enforce the provisions of Part II of the Constitution notwithstanding the express prohibition of Article 8(2) of the Constitution. Actually this approach was a reflection of iniquitous proximity and may be that is why in a later case of Md. Aftabuddin vs. Bangladesh 48 DLR (HCD) 1, Naimuddin Ahmed,J. shifted his position. However, it is conspicuous that the Court in fact enforced Article 24 positively while offering justifications for negative enforcement.

Prominent constitutional law expert Mahmudul Islam, in his book ‘Constitutional Law of Bangladesh’, has rightly criticized the judgment on the point that it has not only violated Article 8(2) but also acted in contravention of Article 111 of the Constitution by violating the judgment of Appellate Division in Kudrat-E-Elahi Panir vs. Bangladesh 44 DLR(AD) 319. Apart from this, the Honorable Author Judge referred to the decision of M.C. Mehta vs. Union of India AIR 1997 SC 734 stating it as an example of enforcing directive principles of state policy (DPSP) relating to environment. This case was actually dealt according to ‘the precautionary principle’ and ‘polluter pays principle’ which are part of the environmental law of the state and the DPSPs were used only as guide to interpretation of the law (para 14).

It is submitted that this tendency of the court to enforce Part II of the Constitution may create  a serious problem regarding the periphery of power vested in Judiciary.  After this judgment, there might be inclinations of the judiciary to enforce provisions of Part II of the Constitution though there is an express bar in the Constitution to do so. It should be kept in mind that as a developing state, Bangladesh is not yet ready to positively enforce any provision of Part II of the Constitution. As the judiciary does not hold the strings of public purse, upholding provisions of Part II of the Constitution may offer ascent to budgetary constraints. (Nolan, 2014: 369) Only the Parliament can assess the net assets of the country and decide how much of it can be invested to realize the FPSPs. The Appellate Division of the Supreme Court of Bangladesh, in this regard, stated in Kudrat-E-Elahi Panir & others vs. Bangladesh & others 44 DLR(AD) 319:

“The FPSPs are in the nature of people’s program for socio-economic development, in a peaceful manner not overnight but gradually. Implementation of these programs requires resources, technical know-how and many other things including mass education. Whether all the prerequisites for a peaceful socio-economic revolution exist is for the state to decide’’.

Therefore, judiciary does not have the authority to adjudicate whether we are ready to make Part II of the Constitution positively enforceable while the Parliament is vested with that power. The framers of the Constitution of Bangladesh left the issue of enforcing provision of part II of the Constitution with the Parliament.

Lastly, it can be said that this is one of the instances for which Judicial Activism is often criticized. In some cases, the courts tend to adjudge that there is no law on a specific issue by any stretch of the imagination. Also, there are cases where judges interweave their own interpretation of law as opposed to the Constitution or laws enacted by the Parliament. The transgression of powers in cases like this reminds of George Orwell who long back cautioned of ‘crossing the limits’ in any form in human conduct. At this point, it is expected that all branches of the Government, namely Judiciary, Parliament, and Executive shall maintain the line of demarcation between their powers as enumerated in the Constitution.