Appellate Division by its historic judgment on July 3rd 2017 upheld the judgment of the High Court Division dated 05.05.2016 striking down the 16th Amendment of the Constitution as unconstitutional. By 16th Amendment of the Constitution, Parliament assumed the removal power of the judges of the Supreme Court which was earlier dealt with by the Supreme Judicial Council.
People mostly concludes that the moot question was raised and settled in this case was ‘whether the constitutional 16th Amendment has violated the basic structure of the constitution and thus void, illegal and unconstitutional being against the spirit of principle of separation of judiciary and its independence. People’s concern was if the removal mechanism of the judges of the Supreme Court is given to the Parliament, whether the independence of the judiciary will be affected and/or hampered. Our Apex Court by its wisdom unanimously held that 16th Amendment of the Constitution is void, illegal and unconstitutional. In doing so, the Apex Court necessarily discussed the events taken place in our political history of last seven decades (1947-2014) in general and 1971-2016 in particular in order to justify its verdict for protection of the independence of judiciary from the influence of other organs.
Judgment of the 16th Amendment case has reminded us all once again of the facts that we, the Peoples of Bangladesh, have chosen ourselves a ‘written constitution’ unlike West Minister form of democracy. Modern constitution is essentially a written constitution which can put a “balanced restriction” on unfettered, despotic and totalitarian power of the executive so that it cannot transgress the limit prescribed. Court gave us all a reminder that about a very simple fact that: Bangladesh has a ‘written’ constitution. Having a ‘written’ constitution means nothing but having a power to exercise, that power is essentially restricted in the sense that it is not unfettered or unlimited, and it is balanced in the sense that while exercising that power, all State organs shall not work in isolation rather they will combine their efforts together so that maximum benefits to the people are ensured.
I see this judgment from a different perspective. The issue of supremacy was brought into light and settled by the Apex Court though not much talked about. Some politicians, intellects and jurists borrowed the West Ministerial idea that parliament as representative of the people is supreme over other organs of the state. The apex court through this judgment has buried this idea of supremacy of Parliament and affirmed in its own language that “only people are sovereign and only the Constitution is supreme”.
The idea of supremacy of the Parliament has never been a Bangladeshi one. It was originated in England in 1688 by reducing crowns prerogative powers; the supremacy of parliament was established. Since then legal sovereignty remains with the Parliament of United Kingdom. The British Parliament exercises sovereign legislative power, it has unfettered rights to make and unmake any laws. It is said that British Parliament can do anything except make a man woman and a woman a man. We must however be mindful of the facts that UK does not have an absolutely written constitution prescribing limit of the powers and authority of different organs; in contrast Bangladesh essentially has a written constitution. In a written constitution powers of the different organs of the state are prescribed and limited. No one or authorities under a written constitution will exercise their power/authorities beyond limit prescribed. In the judgment Supreme Court observed that “There is a misconception about the Parliamentary sovereignty or legislative privilege in a written constitution”. Supreme Court went on to say that “only the people are sovereign and only the Constitution is supreme. All other institutions are merely the instruments or agencies to fulfill the greatest purposes enunciated in the Constitution. Our Constitution envisages not only a democracy of men but a democracy of institutions. The attributes of sovereign authority or unlimited power do not attach to any office or any institution. To claim sovereignty for the Legislature is directly contrary to the law….” Article 7 (1) of our Constitution clearly expressed that “All powers in the Republic belong to the, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution”. No organ can claim supremacy over any other organs. When the Judiciary declares any law enacted by the Legislature to be unconstitutional, the Judiciary is not exercising any superior power, nor does it claim supremacy over parliament but simply acting in line with its constitutional obligation.
The written constitution of Bangladesh has placed Supreme Court in the position of the Guardian of our Constitution itself. Supreme Court will not therefore accept imposition of any inroad upon the Constitution. The criticism of Supreme Court from the politician legislature and executive is unfortunate as constitution itself envisages for exercise of such judicial review power by the Supreme Court. Supreme Court has just merely performed its constitutional sacred duty which Supreme Court bound to under the constitution.
Following the judgment given in 16th Amendment Case it may be pertinent to discuss whether the Parliament may pass an Amendment of the Constitution or any legislation which is being struck down by the Apex Court as void and unconstitutional. Article 112 of the Constitution provides, all authorities, whether executive and judicial, in the Republic shall act in aid of the Supreme Court and from this point of view, the Parliament can not make any law by passing the binding effect of the judgment rendered by the Appellate Division. The Supreme Court of India in People’s Union For Civil Liberties (PUCL) case held that ‘the Legislature has no power to review the decision and set it at naught except by removing the defect which is the cause pointed out by the decision rendered by the Court and if this is permitted, it would sound the death knell of the rule of law’. The Legislature can not overrule or supersede a judgment of the Court except lawfully removing the defect or infirmity pointed out by the Court.
Writer is a Barrister-at-Law of the Honorable Society of Grays Inn and Advocate, Supreme Court of Bangladesh.