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Does the old legal order cease when power is grabbed?

While finding fault in Kelsen’s doctrine of revolutionary legality is fine and can even be lauded as a judicious exercise, rejecting it altogether may be more appropriate, argues PYSMHE WADUD

PYSMHE WADUD | New Delhi |

Upon the murder of Sheikh Mujibur Rahman on 15 August 1975, the office of the President of Bangladesh was seized and eventually, government powers were assumed by the usurpers. The very act of usurpation of powers, among others that followed, was declared illegal in the judgment handed down by the Appellate Division in the case Bangladesh Italian marble Works Ltd. v Government of Bangladesh and others (2005), otherwise known as the 5th amendment case.

Professor Hans Kelsen with his doctrine of revolutionary legality implying that a successful revolution can amount to a law-creating act and can change the basic norm or the grundnorm, made his appearance in the said judgment. While both the High Court and Appellate Divisions expressed disapproval for illegal seizure of powers through unconstitutional means, the High Court Division made the observation that Kelsen can only be used to explain past incidents and that “a Judge in deciding a case may call upon many a legal theory in establishing his own point of view but should not regard it as a precedent.”

The Appellate Division declared that the ‘will of the people’ is the pole star of the Constitution and the same cannot be whittled down by any usurpers. However, unlike the High Court Division, the Appellate Division did not express its view with regard to the application of Kelsen as a normative principle, in specific. It will not be out of place to mention that the Appellate Division, seemingly in arguendo, went on to opine that there were no pretexts on 15 August 1975 (considering that the Vice-President was available and the parliament was in existence) that could justify the assumption of powers.

Kelsen penned his theory of revolutionary legality in the book ‘General Theory of Law and State’ (1949). He observed that when a group of individuals attempting to seize power by force, succeeds in doing so, and when upon such seizure, the old legal order ceases and a new legal order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave in conformity with the new order, then the new order is to be considered as a valid legal order. On the other hand, if the said group of people fails, if the order they have tried to establish remains inefficacious, then, their undertaking of seizing power by force is to be interpreted, not as a legal lawcreating act for the establishment of a (new legal order) but as an illegal act, as the crime of treason, according to the old order.

As opposed to a normative principle, Kelsen’s doctrine is a descriptive theory of law entailing a mere juristic proposition, which is neither beyond the pale of controversy and/or fallacy nor is to be taken as a legal norm presupposed to be relevant for judicial decisions.

The inherent fallacies of the doctrine of revolutionary legality were underscored in the landmark case of Asma Jilani v Government of Punjab (1972), a decision which was referred by both the Divisions of the Bangladesh Supreme Court in the 5th amendment case. In that case, the Pakistan Supreme Court iterated the futility of Kelsen or any doctrine or theory in order to validate or justify an unconstitutional act and unequivocally held that the said doctrine cannot be invoked in Pakistan.

The Court went on to refer to Professor Dias, Laski and Stone, among others, with the aim of rejecting Kelsen altogether. First, the Court observed that Kelsen postulated his theory on successful coups d’etat as lawcreating acts from the perspective of international law and that his presumed hierarchy of norms did not apply to a dualist domestic legal order. Second, the Court thwarted the idea that the efficacy of a legal order would automatically confer validity upon it.

Interestingly, the Court also observed that “Kelsen [..] does not contemplate an omnipotent President and Chief Martial Law Administrator sitting high above society and handing his behests downwards” and that Kelsen did not intend to imply that every person who was successful in grabbing power could claim to be the source of law. While these well-articulated observations by the Jilani Court can be lauded, they imply a keen interest taken by the Court in interpreting Kelsen as well and this interpretation of what Kelsen’s doctrine ‘contemplates’ or ‘intends’, in a way, presupposes that the doctrine is a legal principle/norm, pertinent/relevant for judicial decisions.

What was advanced in arguendo by the Appellate Division in the 5th amendment judgment too, lends credit to the presupposition. This is something that Professor Julius Stone had feared more than half a century back. In mid-1960s Professor Stone and Professor Kelsen got involved in a scholarly debate. In a 1964 book ‘Legal System and Lawyers’ Reasoning’ and a 1963 article ‘Mystery and Mystique in the Basic Norm’, Stone critically questioned Kelsen in general and in a way persuaded him to clarify his position.

Finally, Kelsen made out his points with regard to his theories through yet another article ‘Professor Stone and the Pure Theory of Law’ (1965) –

“Never, not even in the earliest formulation of the Pure Theory of Law did I express the foolish opinion that the propositions [..] ‘bind’ the judge ‘in the way in which legal norms bind him.’ Insofar as the judge in performing his function of applying and creating law adopts a theory of law, his position is the same as that of any lawyer. And as far as the lawyers are concerned, I tried, of course, to convince them that my theory is correct…. But this does not mean that I considered the propositions [..] as legally binding.”

While finding fallacies in Kelsen’s doctrine of revolutionary legality is fine and can indeed be lauded as a judicious exercise, rejecting it altogether is what seems appropriate. Considering Kelsen as just another jurist’s thought and not a normative principle for guiding judicial decisions, is also immensely necessary.

Moreover, search for pretexts in not justifying the necessity (of invoking Kelsen) (even if as an arguendo, as was done by the Appellate Division in the 5th amendment case) needs to be done away with.

The writer is Lecturer in Law, Bangladesh University of Professionals.

The Daily Star/ANN.