Abdur Rahman Tanvir: The full bench of the Appellate Division of the Supreme Court declared the 16th amendment of the Constitution as illegal, affirming the judgment of the earlier decision of the High Court Division. By this verdict, the power to impeach Supreme Court judges remained in the hands of the Supreme Judicial Council initiated by the President of the Republic as enshrined in art. 96 of the Constitution.
The amendment, which had given the parliament powers to sack judges on the grounds of incompetence and misconduct, was first ruled illegal by the apex court of the country.
I think the verdict should be reconsidered, scrutinized and reassessed for its some problematic issues unsettled by the judiciary.
As the President being initiator of the Supreme Judicial Council cannot work according to his will except with the consultation of Prime Minister, there is ample scope of using the ‘arbitrary’ power by the executive in the name of President.
PM being the head of executive and ruling political party may use this power for political convenience.
As per example: The prerogative of President is kept in the constitution pursuant to art. 49 of the constitution to ensure justice not to exercise it under the political conveniences.
Alas! it is very hard to find a single case in which the pardoning power of President has been truly used to ensure justice.
Then the question may arise that the President, who is the sole initiator of the Supreme Judicial Council, be able to exercise that power without the political influences.
Though the power to sack judges of the higher judiciary is abusively used by the Supreme Judicial Council has not been seen so far, the current conflict between Parliament and Judiciary gives rise a severe doubt that there is a pure possibility to exercise the power arbitrarily notwithstanding practices
contained in the past.
If the impeachment power remains in the hands of Parliament, there will have a chance that the impeachment procedure will go through a adequate debate and discussion and on this point the doctrine of checks and balances will work accordingly.
On the other hand, if the impeachment power is solely vested on the shoulder of Supreme Judicial Council, the power may be exercised by the Executive in the name of President at its whims and caprices and the principle of Checks and balances, which is one of the most structural policies of the constitution, may not be possible to ensure at all.
Because “Power tends to corrupt, absolute power tends to corrupt absolutely”. Impeachment power vested solely in the hands of Executive reflects tending to corrupt absolutely by the Executive.
It must be remembered that the Parliament requires a two-thirds majority to amend the constitution. With a requirement of two-thirds majority for the removal, Judges are more valued rather than falling them under the Supreme Judicial Council.
It should not be forgotten that the Supreme Judicial Council is the creation of military dictator.
The dictator who occupied the power unconstitutionally made the 5th amendment of the Constitution inserting the Supreme Judicial Council keeping harmony with the Pakistan Supreme Judicial Council. By the verdict of Moon Cinema case, Supreme Court declared 5th amendment unconstitutional and illegal.
But the interesting point is that though the 5th amendment was declared illegal, the Supreme Judicial Council which was created by the 5th amendment is still surviving.
One of the core reasons to declare the 16th amendment unconstitutional was that Independence of Judiciary would be impaired by all means. Because, in Bangladesh context, our parliamentary actions in a sense are not transparent at all. The Parliament members’ on whom we bank our trust by all means, activities are not transparent, then how could it be possible to establish Rule of Law in the country? or in other words, how we dare to say that Rule of Law does exist? or in which sense we can claim that, mere separation of Judiciary will do establish the most desired Rule of Law in the country. Things are seen to be very much ambiguous and conflicting in our perspective.
Here, another crucial question can be arose that, what was the role of the Supreme Court as the sole guardian of the Constitution regarding being the parliamentary transparency here in Bangladesh, what was the role of higher judiciary when article 70b had been inserted?
so the question of Independence of Judiciary regarding its interference by the Parliament is mere excuse.
Respecting the decision of Supreme Court in 16th amendment case, I think that the verdict should be reconsidered taking into account those issues and matters overlooked by the Judiciary.
An effective Parliament means people’s representation, their will and the reflection of that will on behalf of them through their effective and transparent procedure. If the Parliament removes judges in fair and equitable way, then the judges will be removed or deemed to be removed by the people of the Republic.
To make the impeachment process fair and equitable by the Parliament, my recommendations state as follow:
a. For the sake of independence of Judiciary, the government should initiate an impartial body empowering it to investigate the reasons for sack of judges on the grounds of misconduct and incapacity in accordance with the rules made by the Parliament. That body then carry out the inquiry into the allegations come into it. When the body finds the allegations valid, then a report will be prepared issued and submitted by that body to the Parliament. The Parliament will hold a vote in this regard. If the two-thirds majority of the Parliament votes in favor of impeachment, judges should be removed.
“By reason of article 70 of our constitution and its impact on members of Parliament leads to the irresistible conclusion that this new mechanism cannot be expected to function independently and neutrally if a judge attracts displeasure from the political party in power, he may be subjected to removal by Parliament” the Supreme Court said in the verdict.
On that point of view, the Supreme Court, as the guardian of the constitution, had the duty to abolish or curtail article 70 from our constitution at the beginning of its initiation as it was against the rules of justice and equity and because of being the reason of impairing the independence of judiciary and against the freedom of speech according to article 39a of our constitution.
On aforesaid context, my recommendation is that
b. The higher judiciary should declare article 70b illegal and unconstitutional on such regard.
c. Parliament should amend the constitution adding ‘simple majority’ required to form the govt. by election. Because two- thirds majority is the curse for any independent country. For votes which can have extremely long term consequences, like changing the constitution, a simple majority vote is usually not enough. When any govt. belongs to two- thirds majority of its elected members, it can easily amend the constitution arbitrarily by its own accord without any justification. That is why simple majority is desired for an effective government.
So, the Judiciary should make the Parliament effective by striking down their unconstitutional activities instead of blaming and weakening it by any means. Separation of power requires that any organ of the state discharges its functions not only separately but also effectively.
Now an expected fact is that power to sack of the Supreme Court’s judges should be handed over to the Parliament by legalizing 16th amendment regarding those unsettled matters taken into account by the higher judiciary.
Mohammad Abdur Rahman Tanvir.
3rd year student, Department of Law,
University of Chittagong.
Dhaka, 11, Septembar, (campuslive24.com) /MH