Recently the Hon'ble High Court Division of the Supreme Court (HD of SC) declared, in a judgment, the 16th Constitutional Amendment void and unconstitutional.
Thoughts fomented this writer's mind last few days to make some contribution in the basket of thought process, bearing in mind that it does give right to none to dishonour or disharmonise such process of the judiciary and legislation. This scribe has to be excused should he digress from the legal horizon, fortuitously. He, therefore, seeks apology in advance.
A reference may be made here to this writer's articles that came out in some newspapers under the title of 'Of Sovereignty' in January 2011 and also the contents of his book "How Precious Is An 'Oath"'. Those state the following: Sovereignty means: step 1: A state was based upon a compact of its citizens, term was thus given as popular sovereignty; step 2: Since a state started exercising sovereignty, it was thus, vested in the 'Nation's Parliament'; Step 3: As a state has many functions, developed, thus, the idea of sovereignty on functional basis; Step 4: Different interests group e.g. political, social, economic, religious gave birth to the concept of pluralistic sovereignty; step 5: At one stage sovereignty was identified as 'might' rather than 'law', it hence started commanding 'law'; and step 6: Due to intervening international laws, sovereignty ceased to be considered as synonymous with unlimited power. This is where we are today.
References of some provisions of our Constitution and their derivatives are highlighted here: (i) Para (1) of the Preamble and Article (1) of the Constitution says that People's Republic of Bangladesh is sovereign; (ii) Para 4 of the Preamble of the Constitution reiterates that the Constitution is the supreme embodiment of the will of the people of Bangladesh, whereas Article 7 (1) of the Constitution spells out that all powers belong to the people and their exercise shall be effected only under the Constitution; and, (iii) Article 65 (1) clarifies that there shall be a Parliament known as House of the Nation which, subject to the provisions of the Constitution, the legislative powers of the state shall vest in.
Should we dovetail the above provisions, definitions of sovereignty inclusive, we arrive, perhaps, at a junction to conceive that whereas the state is sovereign, so are the people, the Constitution and Parliament as well.
Sovereignty is a relative term, that may, inter alia, be focused as follows: (i) (a) State's sovereignty is vulnerable to invasion; (b) International laws and UN's conventions may pose as an infringement and need to be accommodated to a degree by a state; and, (ii) Sovereignty of the people, Constitution and Parliament may be affected due to promulgation of Martial Law (in this writer's book 'Laws, Unlaws, Above-laws, Outlaws and In-laws' that this writer subscribed it as 'Rule' i.e. Martial Rule rather than Martial Law).
STATE'S FUNCTIONS: Functions are (i) legislative (ii) judiciary (iii) executive. Obviously the functions are complementary to each other to engage the state to function properly.
SUPREME COURT (S.C.) AND JUDICIARY: S.C. is an institution and judiciary is an organ of the state. We may at this stage move on to analyse a few Articles of the Constitution for better comprehension.
As per Article 48(1), the President is to be elected by Parliament which can also as per Article 52 (1) impeach him.
Similarly, Article 95(1) authorises the President to appoint Chief Justice (CJ) and Judges. Naturally the President has the inherent power to remove CJ and Judges under certain conditions. CJ/Judges are thus accountable to the President.
On top of the above, if we look at the provisions of Articles 96 (3), (4), (5), (6), (7) and (8) with regard to Supreme Judicial Council, the President has the power to remove CJ and Judges. Since the President is liable to Parliament under Article 52(1), so are the CJ/Judges to Parliament via the President.
Further, one may also look at the provisions of Articles 115 and 116 regarding appointments, control, discipline etc., which have empowered the President. Provision of Article 116A -- an insertion from the Fourth Amendment of the Constitution -- empowers the judicial service's independence in exercising judicial functions. Here we have to bear in mind, critically, that should we skip over the Fourth Amendment of the Constitution in order to go back to 1972 Constitutional position due to the Fifth Amendment Judgement, the Articles 115, 116 and 116 (A) shall no more exist.
Sovereignty in a state is a recycling process as shown under:-
It is, thus, clear that sovereignty's 'Might' for a time being shifts from point to point as shown in the above chart. It is a recycle-process.
It is not the survival of the fittest. The case in point is an issue of complement, compatibility and mutualism amongst the three organs of the state.
We may also reiterate to recognise that power corrupts people and absolute power corrupts absolutely. Since no one is above law, so is not also the SC, for we know that 'Fiat justitia, ruat caelum' i.e. let justice be done, though the heavens should fall.
The Constitution's 16th Amendment was a replacement of the Article 96 as it was in the Constitution's Fifth Amendment, and since the HD (SC) has now declared the whole of 16th Amendment void and unconstitutional, it automatically replaces the one that was in vogue before the Judgment. The following may deserve to be pointed here quoting from this writer's book, "How Precious Is An Oath' and his article 'Impeachment of Judges Bill: - Progressive or Regressive?"' in order to make it more clear:
ARTICLE 96 OF THE CONSTITUTION OF 1972 SAYS: "A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehavior or incapacity."
The said Article 96 was amended and adopted through the Fourth Amendment by the then Awami League (AL) Government as follows:
অসদাচরণ বা অসামর্থ্যরে কারণে রাষ্ট্রপতির আদেশ দ্বারা কোন বিচারককে তাহার পদ হইতে অপসারিত করা যাইবে।
The issue after the Fifth Amendment introduced by President Ziaur Rahman stands as: "There shall be a Supreme Judicial Council, in this article referred to as the Council, which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges."
It is thus crystal clear that the AL Government in 1975 amended Article 96 of 1972 by their Fourth Amendment whereas Fifth Amendment to introduce Supreme Judicial Council, a progressive one, was brought in, in order to amend the Fourth Amendment as it stood at that time.
Should the present government have an honest wish, they should logically revisit the whole gamut which may include prevailing position in India.
India's Constitution is one of our prime sources in drafting our 1972 Constitution. India, meanwhile, adopted in 1968 "The Judges (enquiry) Act to amend the said issue to include 100 members of the Lower House and 50 members of the Upper House (a bicameral system) who can bring such proposal and, if agreed to, then Chief Justice (CJ) of the Supreme Court (SC), one Judge of the SC, another from the High Court (HC) and an eminent lawyer nominated by the Speaker to preside over the Supreme Judicial Council (SJC) shall constitute the SJC."
When we hear a ringing bell that the 16th Amendment of the Constitution has already been declared by a HD (SC) bench void and unconstitutional -- a praiseworthy task, it could have by all fairness given a clue as to what would prevail in the absence of the 16th Amendment. Naturally and by all criteria, the one that existed before such Judgment declaring void and unconstitutional must come into force automatically unless the government appeals otherwise which they did meanwhile.
In such a situation, there was no need at all to raise the issue in Parliament for discussion, resulting into a not-very-welcome deliberation, until the Appellate Division's verdict is available. The Hon'ble Minister In-Charge, could perhaps understand the issue as this writer reckons, and carefully procrastinate the matter to gain time for an amicable but judicious mitigation.
Parliament (legislation), Judiciary (SC in this case), and the Executive (i.e. the Ministry) are left with few options at stake. Options, inter alia, are: (1) To continue with Article 96 having the provision of Supreme Judicial Council (SJC) or above (I) may be further updated with improved modifications/reforms and, (2) we may also consider Article 96 of 1972 with substantial modifications through major amendments/reforms.
Reforms may be needed if above (I) is to be adopted such as: (a) Separation of Judiciary in letter and spirit.
Following bills of this writer submitted to Parliament, as were published in his book 'Parliament and I' as well as in some newspapers, the move may be taken, if necessary with further modifications. e.g. -- (i) Bill to amend Article 96 regarding embarrassment of Judges; and, (ii) Bill to amend Articles 95 and 96 for appointment of Judges.
Reforms may also be needed if (II), as noted above, is to be adopted such as: (a) to avoid hassle for the time being we may consider the Indian reform of S.J.C. save that the Speaker shall nominate a high profile amicus curiae to preside over the S.J.C. in consultation with the Leader of the House and that of the Opposition.
Until we change our mono-cameral system of the House to a bi-cameral one, we continue with CJ and two next senior Judges of the SC to remain as other members of the SJC along with an amicus curiae; (b) alternatively, we may also revert to the 1972 Constitution empowering Parliament for impeachment of Judges. We would, however, for all fairness need obviously the following reforms, inter alia, in order to guard off any possible coercive actions by Parliament to bring about an internal check and balance system.
The key points are as follows: (i) Election system be changed from the existing system of first-past-the-post to a more representative one like proportionate representation - e.g. New Zealand system; (ii) To introduce 'Yes' or 'No' vote system in the ballot; and (iii) Article 70 be repealed and made applicable in case of no-confidence vote to avoid horse trading and at the most be applicable at the time of passage of the national budget.
The writer is a former State Minister, Ministry of Civil Aviation & Tourism and Textiles, a former Member of Parliament and a former President, South Asian Federation of Accountants (SAFA).
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