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Dhaka ,Tuesday 16 October, 2018

16TH AMENDMENT: Judges caught in political divide, govt in quicksand

Those who are aggrieved with the decision on the Sixteenth Amendment to the Constitution are boiling with rage for the unwarranted observations, most of which are not even obiter dicta in the lead judgment of the Appellate Division (AD) but seem to have little grievance against the final order – the AG was মর্মাহত (disappointed) and the Law Minister দুঃখিত (sorry) and ব্যথিত (distressed), while the adversaries who are on the other side of the isle are reveling in the defeat of the Government by shrugging off the seal that was stamped by the Apex court denuding their politics, figurehead and performance. How strange, Seleucus!

Writ Petition

On 05 November 2014, nine lawyers invoking article 102 of the Constitution challenged the constitutionality of the Constitution (Sixteenth Amendment) Act 2014 (Act No. XIII of 2014) [published in the Gazette on 22 September 2014]hereinafter referred to as the Amending Act for a declaration that the said act is void, illegal and ultra vires the Constitution. On 9 November 2014, they obtained a Rule in the above terms. The application was mainly based on the grounds that it violated the Basic Structure of the Constitution, that the Parliament cannot be relied for removal of judges for article 70 of the Constitution, in particular and that the Amending Act violated article 147 of the Constitution varying the service conditions of the judges to their disadvantage.

High Court Division

The High Court Division (HCD) by an split judgment dated 05 May 2016 by a majority of 2:1 made the Rule Absolute and declared that the Amending Act XIII of 2014 colourable, void and ultra vires the Constitution on the views that the Amending Act is colourable legislation, violates the doctrine of separation of powers, the independence of judiciary as guaranteed by article 94(4) and article 147(2), two basic structures of the Constitution, and also is hit by article 7B of the Constitution. The HCD however granted a certificate under article 103(2)(a) of the Constitution as they thought the case involved substantial question of law as to the interpretation of the Constitution.

Appellate Division

The Certificate issued by the HCD was very precise, certain and to the point, and made the scope for hearing of the appeal limited for the AD. Besides, Part II of Appellate Jurisdiction, Order XII of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 for Civil Appeals under Article 103(2)(a) of the Constitution clearly provides the procedure for such an appeal.

As appears from the judgments, the AD did neither issue any leave on any other issue/point nor anybody sought for any leave on any other issue/point. Thus, there could not be any confusion about the remit of the appeal before the AD. Under the AD Rules, a party to the appeal is obliged to file a concise statement on any issue for which a leave is granted by the AD with the clear understanding no party in the appeal at the hearing should be surprised.

Mr SK Sinha, CJB used 394 pages, while Mr M Abdul Wahab Miah, J 127 pages, Mrs Najmun Ara Sultana, J in one line (agreed with the CJB), Syed Mahmud Hossain, J 36 pages, Mr M Imman Ali, J 60 pages, Mr Hasan Foez Siddique, J 143 pages and Mirza Hussain Haider, J 41 to unanimously dismiss the appeal of the Bangladesh upholding the final decision of the HCD.

In the lead judgment, the scope of appeal could not be found with certainty. In the opinions of Mr M Abdul Wahab Miah, Syed Mahmud Hossain and Mr M Imman Ali the certificate that was granted by the HCD under article 103(2)(a) of the Constitution were only mentioned.

Main reasons for striking down the Amending Act XIII of 2014 appear to be, inter alia:

i. In the Judgments striking down the Constitution (Fifth Amendment) Act, 1979 (Act 1 of 1979) article 96 was condoned, and they are now part of the Constitution;
ii. Pursuant to such decision, by section 31 of the Constitution (Fifteenth Amendment) Act 2011 (Act XIV of 2011) article 96 was retained;
iii. In view of the provisions of 7B by aforesaid Amending Act of 2011, article 96 has become unamendable for being “Basic Structure” of the Constitution; and
iv. Amending Act violates the independence of the Judiciary and the Rule of law, in particular article 147 (2) of the Constitution.

Remit of the appeal before the AD
It is important to delineate at the outset the remit of the appeal not only for the litigants or the people but also for the convenience of the judges so that they do not miss the issues raised. In the Code of Civil Procedure and the Code of Criminal Procedure, we have learnt, about what should be the salient features in a judgment or order. In disposing of an appeal under 103(2)(a) of the Constitution, AD cannot travel beyond the provisions of the said article and how high and mighty he or they may think of him or them they must be under the law, the Constitution. Here, is an opportunity for a judge to demonstrate accountability in acting within the bounds of the law and not beyond the law!

Mechanism for removal of a constitutional functionary
Now, let me take up the moot issue, Amending Act XIII of 2014, which was attached to the writ petition. In order to make my presentation clearer, I must reproduce the Act, which is not very big.

[Published Bangladesh Gazette, 22 September 2014

An Act further to amend article 96 of the Constitution of the People’s Republic of Bangladesh

WHEREAS it is expedient and necessary further to amend article 96 of the Constitution of the People’s Republic of Bangladesh for the purposes hereinafter of appearing;

It is hereby enacted as follows:
1. Short Title. – This Act may be called the Constitution (Sixteenth Amendment) Act, 2014

2. Amendment of article 96 of the Constitution. – In the Constitution, in article 96, for clauses (2), (3), (4), (5), (6), (7) and (8), the following clauses (2), (3) and (4) shall substituted, namely:–

(2) 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 misbehaviour or incapacity.

(3) Parliament may by law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehaviour or incapacity of a judge.

(4) A judge may resign his office by writing under his hand addressed to the president.] Emphasised by me.

Replaced article 96 was hereunder:

“Tenure of office of Judges

(1) Subject to the other provisions of this article, a Judge shall hold office until he attains the age of 60 sixty-seven years.

(2) A Judge shall not be removed from office except in accordance with the following provisions of this article.

(3) 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:

Provided that if, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or other cause, the Judge who is next in seniority to those who are members of the Council shall act as such member.

(4) The function of the Council shall be–

(a) to prescribe a Code of Conduct to be observed by the Judges; and

(b) to inquire into the capacity or conduct of a Judge or of any other functionary who is not removable from office except in like manner as a Judge.

(5) Where, upon any information received from the Council or from any other source, the President has reason to apprehend that a Judge-

(a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity, or

(b) may have been guilty of gross misconduct, the President may direct the Council inquire into the matter and report its finding.

(6) If, after making the inquiry, the Council reports to the President that in its opinion the Judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the Judge from office.

(7) For the purpose of an inquiry under this article, the Council shall regulate its procedure and shall have, in respect of issue and execution of processes, the same power as the Supreme Court.

(8) A Judge may resign his office by writing under his hand addressed to the President.” Emphasised by me

If both provisions of old and substituted article 96 are compared side by side, few things would be clearer to anyone of average understanding. Firstly, both the provisions are intended to make an inquiry to prove capacity or conduct under the older article while to prove misbehaviour or capacity under the substituted article. Secondly, the power to remove a judge or any other similar constitutional functionary vests in the President, who is their appointing authority. Neither SJC nor the Parliament has such power. Thirdly, in the older article there is no provision to initiate an inquiry by or on behalf of the Supreme Judicial Council, SJC save the President may ask it for any inquiry. Fourthly, there is no provision for any law or regulation for guidance either to initiate or conduct the inquiry. Lastly, all the initiative rests, may by implication at best, on the Chief Justice of Bangladesh, CJB. Result is preordained, there was a single case inquired so far by the SJC over its existence of about forty years. It was held in the solitary case that “There is no hard and first rule for conducting such inquiry by the Council and it is the Council which shall regulate its procedure.”[i]Even then if such a procedure is claimed to be most transparent, then, let it rests on the common sense of the people.

Mr Hasan Foez Siddique however noted the drawbacks of the SJC, and existence of widespread corruption in the judiciary to the extent that 90% cases are settled with bribes yet the SJC failed to initiate single case against corruption. He also recorded the frustration of two former CJBs, Mr A T M Afzal and Mr Latifur Rahman as nothing could be done through the SJC. (see page 742 to 747). Without fear of any controversy, time has come to say and understand that the SJC failed as a mechanism to enforce accountability of a constitutional functionary including a judge.

Now, let me consider the substituted article 96 like a jurist. A myth was created I think deliberately that the Parliament has taken upon itself the power of removal of a judge, including power of impeachment. The whole community is now in grip of grave fear and panic about their independence in the exercise of their judicial functions. In the judgments of both the Divisions, other constitutional functionaries who would be treated the like way under article 96 found no mention. Needless to say that Article 96 was not meant for judges only.

Under clause (2) of substituted article 96, it is clearly provided that a Judge shall not be removed from his office except by an order of the President that may be passed pursuant to a resolution of the Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, which is used in exercise of the Constituent power only, on the ground of proved misbehaviour or incapacity. Even the term ‘Impeachment’ by the Parliament, which was so widely publicized and subjected to propaganda in the media both print and electronic is not found anywhere. For the sake of brevity, I find that the security of tenure of such constitutional functionaries including a judge has been more secured by a statutory mechanism under the substituted article, which is not seen in any other constitution. It cannot be said parliamentary removal as in other developed democracy.

Most important provision introduced by clause (3), which is, ‘Parliament may by law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehaviour or incapacity of a judge.’ Here the Parliament would act just as a post office either to pass and/or send a resolution by a majority of not less than two-thirds of the total number of members of Parliament only when it was proved in an inquiry by a body created by law that is a statutory body. There is no reason to think such statutory body would not be more representative, independent and powerful than the SJC. If such statutory body does not find any fault with any incumbent, the Parliament had no power to proceed an inch in the matter. Then, why so much apathy, want of confidence, panic, hatred or umbrage about the Parliament. Without waiting for the law constituting a statutory body with the concurrence of the judiciary, if need be, the Chief Justice for proof of misconduct or incapacity of a judge, the rush for striking down the Amending Act is definitely premature, in the least.

It was repeatedly insisted by the substituted article 96, the security of tenure of the judges was compromised. There is however no anxiety expressed at all in respect of other similar constitutional functionaries. Security of tenure is a term used in a political sense to describe a constitutional or legal guarantee that a political office-holder, we can read here a constitutional functionary, cannot be removed from office except due process of law which must be fairer and all the opportunity to defend must be guaranteed. The article 96 does not mean security of the tenure, which would be clearer from the very subtitle used, namely, ‘Tenure of office of Judges.’ Such functionary has definitely a right to a fair process or mechanism of inquiry but cannot claim a particular form of inquiry or mechanism, which vests with the employer, namely, the President and here, as is provided in the Constitution.

International Standards

It appears that both the HCD and the AD noticed and considered “the Commonwealth (Latimer House) Principles on the three Branches of Government November 2003” and ‘the Appointment, Tenure and Removal of judges under Commonwealth Principles – A Compendium and Analysis of Best Prectice, Commonwealth Secretariat 2015”. The data found that Parliamentary removal in 16 Commonwealth countries that is 33% while Ad Hoc tribunal in 20 Countries that is 42%, Disciplinary Council in 10 Countries that is 21% and Mixed in 2 countries that 4% are not disputed. But in the lead judgment of the AD, it came to the conclusion that SJC is like that of an Ad hoc tribunal. This misreading is sufficient for review of the entire decision. Moreover, substituted article 96 does not provide for a mechanism, which can be said to be wholly parliamentary removal when a statutory body is entrusted to prove the conduct or incapacity of a judge or other functionary. The fact that the SJC, first introduced in Pakistan by Gen Ayub khan in 1962, which was forgotten in 1973 Constitution, but brought back by Gen Zia in 1982 by 2nd Amendment to the Constitution does not find mention in any of the opinions. Another fact is missing that in no democracy either matured or functioning this kind of SJC, peer body could be thought of to judge their own discipline to enforce accountability. Our judges may be very unhappy about the Parliament of India and UK and the Congress of USA, but none of the judges there harbour this kind of SJC to enforce accountability.

Article 70 of the Constitution

All the grievances appear to be directed to article 70 of the Constitution. Our media is no less responsible in spreading the unfounded fear and panic about the article. Common understanding about the article is that it has taken away all freedom of a member of the Parliament, even their free existence. Secondly, all attention was focused on the party in power for the amendment. But the amendment is nowhere intended to have introduced for this parliament or the coming parliament or for a particular political party. The resolution conceived of under clause (3) of article 96 to be passed by the entire Parliament and must be backed not less than two-third members of all the parties in the Parliament. The consideration of a constitutional amendment does not permit such narrower reading looking at a particular party. Moreover, the rule of interpretation of a constitutional amendment always carries a presumption of validity with it. I am sorry to say I did not find any mention of this fundamental rule in the interpretation of the Amending Act. It is for the other side that opposes the amendment to prove how it violates the provisions of the Constitution. Article 70 never intends to discourage discussion by a member in any debate. As the article is still sub-judice before the HCD any further discussion demands moderation.

The historical reason for introduction of article 70 has not yet been tested and proved wrong and no Parliament faced such situation so that it could be said article 70 was ever misused or abused. But without any fear of controversy, it can be said article 96 failed the judiciary and the nation for more than forty years, in particular, when a judge had to quit over a cup of tea in the Bangobhaban. A piece of history, on 21st February 2008, from the ‘Shaheed Minar’ I along with Mr SK Sinha, J as he then was, went to the Mintu Road house and requested Mr A K Badrul Hoque, J not to resign but failed to persuade him ultimately.

The Parliament may have failed to act up to our expectation but the disruption and void created in the constitutional journey during the absence of the Parliament should not be forgotten for the sake of democracy and the rule of law. We all take pride in referring to the British Parliament as the mother of all parliaments. This year 800 years of the Magna Carta is being celebrated. Success of the House of Commons today paving the way for the rule of law and the democracy to take firm root was made possible for the sacrifice of about six speakers, and countless prince and princess, who were executed for the British Parliament. A Parliament is not built in a day. It demands support, respect and sacrifice of the people to gradually take root. Particularly when its course of journey was repeatedly destroyed by Military rules. The devastation and vacuum brought about by a military Coup D’etat in the constitutional course of a newly born country could only be compared to losing of the chastity, which, if lost once, lost forever.

Article 116 of the Constitution

The views expressed in the lead judgment on article 116 of the Constitution are unfortunate. None of the other judges shared with CJB on the subject. For the simple reason, article 116 was not an issue in the appeal. Moreover, there is a Rule pending over this article before the HCD. If the HCD is swayed away by such remarks of the CJB, that would be a very bad precedent.

Separation of Powers and the Independence

In all the opinions, hundreds of pages were used on the concepts of ‘Separation of Powers’ and ‘the Independence of Judiciary’, which naturally demand consideration. Article 22 provides, ‘Separation of Judiciary from the executive: The State shall ensure the separation of the judiciary from the executive organs of the State.’ This was provided in Part II, describing Fundamental Principles of State Policy. There is no mention of judicial power vis-à-vis Parliament.

Separation of powers may only be understood in the context of the entire constitution in particular of article 7 of the Constitution. Our country is a People’s Republic established after a bloody and arduous liberation struggle. The Preamble and Directive principles if read together the direction of the nation would not be difficult to understand. Article 7 clearly declares  (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution and (2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. [Underlined by me]

The insistence that substituted article 96 has taken away the independence of the judiciary does not find support in anywhere in the Constitution. The provisions for the independence of the judiciary under article 94(4) that “Subject to the provisions of the Constitution the Chief Justice and other Judges shall be independent in the exercise of their judicial functions” and 116A that “Subject to the provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions” are not without qualification. [Underlined by me]

The judges shall be independent in the exercise of their judicial functions, which is provided for the oath taken before entering the office. So long a judge would be holding the office and discharging the function of a judge (s)he would be bound  by the oath and cannot do anything contrary to the oath, namely, to indulge in business, corruption etc. anything for personal gain using the office. A judge may do mistake in deciding a case and would not be held liable for such mistake because his jurisdiction to decide a case also includes his right to commit mistake. Such mistake could be corrected in appeal therefrom, if any available. No international instruments of judicial independence however exempt the judiciary from disciplinary accountability. It is so found in all the opinions that the judges are not above the law, and they are equally accountable to the law and the Constitution like other constitutional functionaries.

Governance

160 Million people cannot exercise at a time the powers of the Republic. Therefore, article 65 has provided for constitution of a Parliament for Bangladesh to be known as the House of the Nation, in which the legislative powers of the Republic shall be vested however subject to the provisions of the Constitution. The party that commands the mandate of the parliament, forms the Government and the leader of such party is appointed the Prime Minister. The executive power of the Republic shall, in accordance with the Constitution, be exercised by or on the authority of the Prime Minister. The Cabinet shall be collectively responsible to Parliament. All executive actions of the Government shall be expressed to be taken in the name of the President.[i]

Judicial Powers

Unlike the legislative and executive powers of the Republic, the judicial powers of the Republic are not made vested in the judiciary.3 The powers enunciated under article 102 are to be exercised by the HCD while those to be exercised by the AD as are enumerated in article 103. The Constitution has provided in article 114 to 116A for the Subordinate courts. All these powers no doubt relate to the governance that are very vital for the people to develop and achieve the constitutional goals. These powers are separate and distinct. Our scheme of separation of powers can only be interpreted and understood by reference to our constitution. In modern constitutionalism, as these powers are meant for the people they cannot be airtight nor one branch of government is expected to transgress upon another hampering smooth functioning of the Government. Here comes the role of the Supreme Court to oversee no one branch of the Government transgress the powers of another branch. In drawing the Lakshmana Rekha, the AD for the Supreme Court of Bangladesh could have drawn its own Lakshmana Rekha first more bold and bright so that others can understand their own ones.

The AD does have only appellate jurisdiction as are enunciated under article 103 of the Constitution to hear the appeals earmarked therein. An appeal to the AD shall lie as of right under article 103(2) including the one certified by the HCD while in all other cases only subject to leave to be granted by the AD. The AD does not have any original jurisdiction to entertain an application or a dispute on facts or law directly. Result being, the appellate jurisdiction of the AD is confined to the record, not beyond that. Consequently, the liberty/freedom enjoyed as an original side by the Supreme Court of India, SCI or the Supreme Court of Pakistan, SCP is not available to our AD. So long, this constitutional limitation is there for the judges to follow, the uses of such foreign judgments/authorities deserve every caution and condescension.

Indian Constitution has vested judicial power in the Supreme Court of India, SCI under article 32 and 131, which are as follows:

32. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

131. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Empowered by those original side powers, what SCI can do, our AD simply cannot think of. Before using any foreign judgment, particularly, those of SCI, this limitation should be always remembered for proper guidance.

Judicial performance in the past

In the dissenting opinion, Mr. Md. Ashraful Kamal, J did dig out a very sad part of our constitutional history. He has threaded how the extra-constitutional interventions happened since 1975 hand in hand with the sitting CJB along with the Bar and the Bench in connivance until 2005. It became routine practice for the judiciary to validate such Military intervention sometime in uniform and other time in plain dress. Our Bar never ever challenged any such intervention. A section of lawyers became expert to flatten the Fourth Schedule to the Constitution by placing validating instruments of extra-constitutional interventions therein, which was meant only for the transitional and temporary provisions as provided under article 150. Repeated extra-constitutional interventions have created such a huge vacuum in all sectors of life and in the leadership in particular, political, bureaucratic, judicial, legal, academic, journalism etc. nobody can say when they could be overcome. National struggle to overcome such vacuum is still going on, some understands others do not want to. Everyone would have to share their own responsibility. In such context, the AD would have done justice in judging other branches of the government after looking their own face in this historic mirror of judicial non-performance.

Precedents

Under article 111 of the Constitution, the law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it. And under 112, all authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court, of course for the purpose of execution.

Binding effect of the Supreme Court judgments is clearly stated in article 111, and that is also based on the doctrine of Stare Decisis. A decision is not mechanically binding in all cases – facts and circumstances. With the passage of time, what is true today may not carry so much weight in future and would need to be resettled. Even, on review a decision my undergo change. By a larger bench even by a majority of one earlier decisions were destined to history by SCI, and in the most recent judgment though unanimous on Privacy many previous decisions were overruled. Nowadays, to say the judgment of the Apex court is final is no more valid statement of precedence. Even in the United Kingdom, the Supreme Court has come out of the old rigidity and conservatism of the sanctity of its own decision. They do not hesitate to reverse or resettle any issue if the newer facts and circumstances demand such a decision.

Parliament is not bound by a decision of SCB

One thing must be noted here, the judgment of the AD or that of the HCD is not made binding on the Parliament under the Constitution. This is equally true in all democracies, parliamentary or presidential. It is for the Parliament to take notice of such judgment or not. Another fact may be relevant here, most of the 11th to 27th Amendments to the US Constitution were made by the Congress to counter the decisions of the US Supreme Court up to 1971. It may also be noted that the US Supreme Court was always conservative and anti-people until Earl Warren took the reign of the Supreme Court as Chief Justice.

Amending power of the Parliament

The Parliament, that is, the house of the Nation demands due respect and attention from all other branches of the government since it is the elected body of the people and the people represent through it. Main constitutional duty of the judiciary is to enforce the laws passed by the Parliament. Even the present Parliament, after the election of the unopposed members found valid by the HCD, is no exception in the interest of democracy and continuity. The Parliament is empowered to legislate under article 65 read with article 80 ordinary laws, while exercising constituent power under article 142 can amend any provisions of the Constitution. To appreciate the amending power of the Parliament article 142 demand close scrutiny, which is as follows:

142. Notwithstanding anything contained in this Constitution(a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament:

Provided that

(i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution;

(ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two thirds of the total number of members of Parliament;

(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period. [Underlined by me]

If the above provisions for amendment of the Constitution are read in between the lines, there is no escape from the conclusion that the Parliament has plenary power to amend any provisions of the Constitution as and when in its wisdom it so think. After an amendment is passed, if any part of the amendment is found inconsistent with the prohibition of article 26 of the Constitution, and any other provisions of the Constitution then, that part to the extent of inconsistency shall become void under article 7.

Courts vis-à-vis Parliament

Finding the following observation in  Nagaraj and Others v. Union of India and Others [(2006) 8 SCC 212]:

“…The Constitution, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted. Such articles are capable of amendment under Article 368.” [Underlined by me.]

Upon such submissions, it is erroneously held that “the interpretation given by the Appellate Division in the Eight Amendment case and Masder Hossain’s case on the question of Basic Structures of the Constitution and the independence of judiciary and rule of law have become part of the Constitution.” Because what was quoted above appears to be the submissions made on behalf of the respondents and not the decision of the Supreme Court of India. Moreover, there is no provision in the Indian Constitution that it changes with the interpretation of a provision put forward by the SCI. If it was so intended then the Constitution of India would have found its place in the garbage since it would not be possible to keep pace with the hundreds of thousands interpretations laid down by SCI so far and the necessity of the Parliament could be done away long ago. Introduction of this kind of idea or thought in the constitutional interpretation in our jurisdiction backed by no authority would hamper normal course of constitutional development.

Many pages of the opinions were relied on the Minerva Mills Ltd. v. Union of India: (1980) 3 SCC 625. By section 55 of the Constitution (Forty-Second Amendment) Act 1976 clause (4) and (5) were inserted in the Amending article 368 of the Indian Constitution with effect from 03 January 1977 restricting any challenge to further amendment to the Constitution. In the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it. Following the basic structure doctrine, BSD in the Kesavananda case, the Court ruled that Parliament could not by amending the constitution convert limited power into an unlimited power (as it had purported to do by the 42nd amendment). Upon such view, SCI held the Amendment inserting said clause (4) and (5) in article 368 unconstitutional. But no Parliament over the last 37 years did take any notice of such decision of SCI, which would be evident from any edition of the Indian Constitution printed after 1980, where clauses (4) and (5) are still dazzling in article 368 of the Indian Constitution.

Cases on Fifth amendment and Fifteenth Amendment

In Khondker Delwar Hossain case, the AD finally concluded dismissing the leave petitions,

“we are putting on record our total disapproval of Martial Law and suspension of the Constitution or any part thereof in any form. The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist, no usurper, would dare to defy the people, their Constitution, their Government, established by them with their consent. However, it is the Parliament which can make law in this regard. Let us bid farewell to all kinds of extra constitutional adventure for ever.”

Before that however in respect of the condonation of the HCD, the AD made the following modification and condonation, inter alia,

“(v) The Second Proclamation (Tenth Amendment) Order, 1977

(Second Proclamation Order No. 1 of 1977) so far it relates to

inserting Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions relating to Supreme Judicial Council…” [Underlined by me.]4

It is also true that by the Constitution (Fifteenth Amendment) Act, 2011 (Act XIV of 2011) article 96 was retained as quoted in paragraph 12 hereinbefore.

By the same Amending Act XIV of 2011, new article 7B was inserted to the effect:

Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means. Underlined by me.

Article 7B

Under article 7B the preamble, all articles of Part I, Part II and subject to the emergency provisions of Part IXA all articles of Part III of the Constitution, and the basic structures were made not amendable by way of insertion, modification, substitution, repeal or by any other means. No provisions of Part VI relating to the Judiciary including article 96 is included in article 7B, obviously, for the reason it is not any substantive provisions of the Constitution. If this article 7B is read even as a rider to the Amending power of the Parliament under article 142 along with article 26 of the Constitution, it cannot be held article 96 was made beyond the amending power of the Parliament. It is already noted earlier that in spite of the aforesaid the judgment of the AD in the Kh. Delwar Hossain and the Constitution (Fifteenth Amendment), the present Parliament is not restrained from making an amendment of article 96 of the Constitution in its wisdom, in the exercise of execution of the will of the people. It may also be argued that without putting any restriction on the power of the Parliament for amendment under article 142, the restrictions provided in article 7B about future amendment would not debar the Parliament from exercising its constituent power under article 142 of the Constitution. Moreover, in is noticed in the opinions of the AD, the concept ‘Basic Structure’ has not been defined.

Basic Structures Doctrine

Now, let me take up the so-called Basic Structure Doctrine, BSD.The principle was first expounded in 1964 by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. Then, under special circumstances and to meet certain constitutional challenge, SCI invented the BSD, which is so vague, uncertain and indefinite that it is still not fit for codification even after 44 years of use since Kesavananda Bharati’s case 1973. For ready reference the following cases may be examined to have an idea the BSD,

1. Shankari Prasad Singh Deo v. Union of India: (AIR. 1951 SC 458)
2. Sajjan Singh v. State of Rajasthan: [1965 AIR 845, 1965 SCR (1) 933]
3. Golaknath v. State of Punjab: [1967 AIR 1643, 1967 SCR (2) 762]
4. Kesavananda Bharati v. State of Kerala: (AIR 1973 SC 1461)
5. Indira Nehru Gandhi v. Raj Narain: [1975 AIR 865, 1975 SCR (3) 333]
6. Minerva Mills v. Union of India: AIR 1980 SC 1789
7. Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and others: [ JT 2007 (2) SC 1]
Till today SCI has found about 23 features of the Constitution come under the BSD. The list is not yet complete and exhaustive. To act on any feature depends upon the discretion of a judge from case to case. Treat it as a supra-constitutional principle but not capable of any definition.

In Kesavananda Bharati, by a majority of 7:6 the BSD was finally formulated and then Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:

1. Golak Nath’s case is over-ruled.
2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
3.The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.
4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.
5.The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid.
6.The Constitution (Twenty-ninth Amendment) Act, 1971 is valid. [See Wikipedia]

SCI also invented the concept of ‘collegium’ for appointment, promotion and transfer of judges denying any role for the executive, in particular, the President with the result Justice C S Karnan, Justice Soumitra Sen, Justice P D Dinakaran and others entered the judiciary through the process. Hundreds of vacancy are increasing everyday and cases are piling up with record speed. Now, CJI one after another is crying and complaining in public before the Prime Minister of India for intervention. After flow of so much water down the Yamuna, sooner they understand they can only function under the constitution and not authorized to alter or add something what is not there in the Constitution through interpretation is the better, and the talks for a compromise behind the scene could only succeed if this understanding of the Constitution dawn upon them.

No jurisdiction except ours does recognize such BSD. The High Court of Singapore denied the application of the basic features doctrine in Singapore in Teo Soh Lung v. Minister for Home Affairs. The Federal Court found BSD inapplicable in Malaysia in Phang Chin Hock v. Public Prosecutor. Pakistan consistently denied existence of such vague and indefinite principle for interpretation of the Constitution.

In District Bar Association, Rawalpindi and others v. Federation of Pakistan_SCP-05 August 2015, the Constitution (Eighteenth Amendment) Act (Act X of 2010) was challenged. By an amendment the Parliament brought about extensive amendments of the Constitution of 1973 including transforming the Presidential system into a Parliamentary one.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be applied “unthinkingly” to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary. (Underlined by me.)
By a majority of 14 to 03 the SCP the Constitution Petitions challenging the Constitution (Eighteenth Amendment) Act (Act X of 2010) were all dismissed upholding the amendment.

Foreign decisions

What Mr. Mahmudul Islam has written, in his Constitutional Law of Bangladesh, second edition, at page 46 in paragraph 1.71 is worth quoting, when our AD start breathing in and out with Indian decisions invariably in almost all cases.“Use of foreign decisions: In the interpreting a constitution foreign decisions are cited and considered by the Court. This is permissible, but the Federal Court gave the warning –

… in the last anylysis the decision must be based upon the words of the Constitution with the Court  in interpreting; and since no two constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words and expressions used are the same in both cases; for a word or phrase may take colour from its context and bear different senses accordingly.

The same caution has been given by the Privy Council while interpreting the Jamaican Constitution –

In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitution and the circumstances in which it had been made.”

Indian constitutional history is quite different from ours, which was adopted on the war-torn earth soaked by blood and sweat of the martyrs of a nation. Every word of our constitution carries a meaning different from that of Indian. Blindly following the Indian constitutional jurisprudence would not help develop our constitution in its truest sense and spirit of our liberation.

In Anwar Hossain Chowdhurty v. Bangladesh: (1989) CLC (AD), 02 September 1989 the amendment of article 100 of the Constitution constituting six more permanent seats of the HCD outside Dhaka was challenged. By the same amending act, article 2A was inserted crowning the Republic with a religion, which is,2A. The state religion of the Republic is Islam, but other religions may be practiced in peace and harmony in the Republic.

Present wordings after the Constitution (Fifteenth Amendment) are as follows:

[2A. The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.]

In the case, the AD for the first time took judicial notice of the BSD and struck down the amendment. But the AD took no notice of section 1 of the Constitution (Eighth Amendment) Act 1988 which inserted the state religion. The Bar also did not read a word of the said provision of added article 2A. The interest of both the Bar and the Bench so coincided and/or converged to some special interest that making seats of the HCD outside Dhaka demolished the Constitution, while the state religion did nothing to the very fabric of the Constitution, to the martyrs who fell for a secular democracy. I want to stop here today on the Anwar Hossain case with the hope the history would take care of it in due course.

State religion

In the meantime, a special bench of thee judges, the HCD by a majority of 2:1 in Maulana Syed Rezaul Haque Chadpuri and others v. Bangladesh Jamaat-e-Islami & others held that

আপিল বিভাগের উক্ত রায়সমূহের আলোকে সংবিধানের প্রস্তাবনার অন্যতম মূলনীতি ‘ধর্মনিরপেক্ষতার নীতি’ এবং সংবিধানের অনুচ্ছেদ ৮ ও ১২-এর সাথে আমরা যদি সংবিধানের অনুচ্ছেদ ‘২ক’ বিবেচনা ও বিশ্লেষণ করি তা হলে নিঃসংকোচে বলা যেতে পারে, সংবিধানের ঐ অনুচ্ছেদ, বর্তমান (পঞ্চদশ সংশোধনী মূলে) পূর্ববর্তী ( অষ্টম সংশোধনী মূলে) যা-ই হোক না কেন, যেখানে ‘রাষ্ট্রধর্মের’ বিধান করা হয়েছে তা সংবিধানের প্রস্তাবনার সাথে অ-সামঞ্জস্যপূর্ণ এবং অ-আপোসযোগ্য। একইভাবে ঐ বিধানটি সংবিধানের দ্বিতীয় ভাগ্যে উল্লেখিত রাষ্ট্র পরিচালনার মূলনীতিমূহ অর্থাৎ অনুচ্ছেদ ৮ ও ১২-এর সাথেও অ-সামঞ্জস্যপূর্ণ।

Reformulation of the Code of Conduct

In the lead judgment, the CJB reformulated 39 points Code of the Conduct about which not a word is found in any other concurring opinions dismissing the appeal. The old article 96 has provided only two functions for SJC under clause (4), which are as under:(a) to prescribe a Code of Conduct to be observed by the judges; and

(b) to inquire into the capacity or conduct of a judge or any other functionary who is not removable from office except in like manner as a judge.

Pursuant to the above provisions under clause (4) (a) of old article 96, the SJC headed by the CJB Mr. Latifur Rahman along with Mr. Bimolendu Bikash Roy Chowdhury and Mr. A M Mahmudur Rahman, JJ formulated a 14-pionts Code of Conduct, which was published on 07 May 2000. Reformulation of the Code of Conduct therefore required to be taken in a formal meeting of the SJC with the CJB in the chair along with the next two senior judges of the AD. In the judgment, there is no mention as to how the new Code of Code was reformulated. It is however not a matter for the judgment disposing of an appeal under article 103 (2) (a) of the Constitution. The anxiety of the CJB for the Code of Conduct always deserves appreciation but any action taken under such reformulated Code of Conduct if challenged would fall through for coram non judice. The rush of the CJB to execute the Code of Conduct by holding a meeting of the restored SJC as was published in the Daily Prothom-alo on 09 August 2017 and asking the judges to sign the judgments within six months of delivery is equally appreciable but would be of no avail if challenged.

Restoration of SJC

In the lead judgment, clause (2), (3), (4), (5), (6) and (7) of article 96 were restored purportedly under article 104 of the Constitution. It was based on the view that if an amendment to a statute is set aside, original provisions stand restored. This principle as may be applicable in respect of a statue is not applicable in the case of the Constitution. Insertion or alteration or omission of any provisions of the Constitution, can only be done following the procedure laid down under article 142 in the Constitution that is by an Act of Parliament. How the other naked incongruity escaped the notice of all the judges is really surprising. By striking down the Amending Act, if the substituted 96 is gone, how the restoration of clause (2) to (7) who would supply the vacuum created by the absence of clause (1) fixing the age of sixty-seven years for holding the office by a judge and clause (4) for voluntary resignation.

In the terms of the Rule issued by HCD and the appeal heard under article 103 (2) (a) of the Constitution on the basis of a certificate, and the declaration of the HCD holding the Amending Act unconstitutional, the AD does not possess any power to take the responsibility upon itself to suo moto write something in the Constitution what is not there. The Constitution has not given any power to the CJB to write or correct the Constitution the way he thinks best. No body under the Constitution except the Parliament can touch the Constitution. This kind of thinking is simply unconstitutional. In the past, extra-constitutional interventions have changed the Constitution beyond recognition. Similarly, the SCB is also not permitted to do anything not authorized by the Constitution. Recent recommendations of an international instrument may help to come out of such perilous consequence.

In the conference held on 10 October 2013, co-organized by the Inter-Parliamentary Union, IPU and the Association of the Secretaries General of Parliament, 63 participants from 29 countries took part including 15 parliamentarians and 26 Secretaries General in Geneva. In summary report dated 23 October 2013, one of the recommendations made aimed at managing conflict between parliament and the courts,“Where a law infringes provisions of the Constitution, courts should issue a declaratory order. Where it strikes down the law, it must give reasons and the formulation of a new law/amendment is responsibility of Parliament.”5

Supreme Court cannot rewrite the Constitution

Cropping up this kind of thought in the highest judiciary has a little history, which was never heard in the past. After the judgment of the AD declaring the Constitution (Fifth Amendment) 1979, (Act I of 1979) and the Constitution (Thirteenth Amendment) Act 1996, (Act I of 1996) unconstitutional, a talk was floated that the Parliament got nothing to do and the Government could print the Constitution on the basis of the judgments of the AD. The Parliament was already thinking for further amendment of the Constitution and appointed a Standing Committee with Mrs. Sajeda Chowdhury and Suranjit Sengupata as joint convenors to suggest proposed amendments of the Constitution. I was an ex-officio member of the Committee. After the aforesaid judgments, a move was initiated by the then Law Minister for a resolution to adopt by the Standing Committee asking the Government to print the Constitution on the basis of the aforesaid judgments. Sidetracking the Parliament, the Standing Committee ultimately passed such a resolution and the Government printed a constitution on the basis of aforesaid judgments. Such printing of the Constitution was without an Act of the Parliament was clearly illegal and unconstitutional, which I failed to make the members of the Standing Committee understand. I submitted a 3-page rejoinder to Mrs. Sajeda Chowdhury against the printing of the Constitution by the Government and had to quit. By the Constitution (Fifteenth Amendment) 2011 the Constitution was ultimately amended by an Act of Parliament, and illegality in the printing of the Constitution was finally cured, though belated. What was achieved by such hurried unconstitutional exercise the nation deserves to know.

The abdication of the powers by the Parliament that day, has weakened it so much that they cannot say today their mandate under the Constitution that no decision of the AD is binding upon the Parliament, and the present Parliament cannot bind its succeeding Parliament. The judiciary started behaving like a supra-constitutional authority dictating the Parliament. It is better to remember that the people are sovereign who elect the Parliament after a definite interval cannot be made bound by any decision of a court. The Parliament can make any law erasing the effect of the instant judgment of the AD.

Article 147 (2) of the Constitution

Lastly, to take shelter under article 147 (2) of the Constitution is nothing but an attempt for a drowning man to catch hold of a straw to survive. Said clause (2) reads,“The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies shall not be varied to the disadvantage of any such person during this term of office.”

Clause (4) of said article 147 has provided, “the article applies to the offices of– (a) President; (b) Prime Minister; (c) Speaker or Deputy Speaker; (d) Minister, Adviser, Minister of State or Deputy Minister; (e) Judge of the Supreme Court; (f) Comptroller and Auditor-General; Election Commissioner; and Member of a public service commission. How the amended article 96 could have varied the terms and conditions of service of a judge of the Supreme Court only is really an interesting assumption by the highest judiciary and definitely based on figment of imagination. It is already stated that article 96 relates to a statutory proof of conduct or incapacity of a constitutional functionary and has got nothing to do with the terms and conditions of service since no such functionary has got any vested right to a particular form of inquiry. They are only entitled to a fairer process of international standard of opportunity to defend.

What is the way out of the impasse

Without any fear of controversy, it must be noted that the judgment of the AD has created the whole mess, the entire nation is now involved expressing their reaction, agitation and grievance this way or that way. The time has come to say for everyone enough is enough! Now, the question is how to come out of this mess. The Bar is divided on the party line, everyone has got his own agenda and interest. There is no guardian seen in the legal community who can lead the nation out of such impasse. It is for the CJB and other senior judges to come forward to pay a heed to the call of the nation. The solution is not difficult to find.

When the controversy cropped up from an amendment of the Constitution for introduction of a statutory body for proof of conduct or capacity of a constitutional functionary including a judge, however intricate and critical the situation may be, to find the best practices provided in the law to create an institution impartial, independent and capable to enforce accountability of a constitutional functionary including a judge is not beyond the capacity of the judiciary and the parliament. Initiative will however rest on the Government. In the interest of justice, the judgment may be reviewed any time and rewritten accommodating the concern of the Parliament and the Judiciary.

Writer is a former judge of the Supreme Court of Bangladesh and former chairman of the Law Commission.

source: bdnews24.com

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