Judgment Review

The Sixteenth: A Simple Amendment Un-simplified

M Jashim Ali Chowdhury

[ষোলতম সংশোধনীর ৭৯৯ পৃষ্ঠার রায়ের উপর ১২০০ শদের একটি মূল্যায়ন। মূল্যায়নটি উচ্চ আদালতের প্রতি বেশ খানিকটা সমালোচনামুখর। আমি অবশ্য রাজনৈতিক সমালোচনার চেয়ে নীতিগত (jurisprudential) সমালোচনার দিকেই মনোযোগ দিয়েছি। আজ (24 August 2017) 

দেখলাম দ্য ডেইলি অবজারভার এর ল এন্ড জাস্টিস পাতায় মূল্যায়নটি ছাপানো হয়েছে। লেখাটি অভজারভারে পৌঁছে দেয়ার জন্য সংশ্লিষ্টদের ধন্যবাদ। দ্য ডেইলি অবজারভার এর লিংক লেখার শেষে দেয়া আছে।]

16th Amendment to the Constitution of Bangladesh has been at the centre of public discourse for some couple of months. People opposing the amendment are accusing the proponents for being too much academic and ignorant of the “reality”. The proponents in their turn are blaming the opponents for being too much “presentist” and defiant of the institutional and structural arrangements of the constitution- the supreme law of the land. On a personal level, a thorough reading of the judgments by the High Court Division and Appellate Division fetched an impression in me that the geographical fault line of the arguments for and against the amendment is neither academic nor practical. It is rather a “simple constitutionality challenge” (borrowing words from S.K. Sinha CJ, Appellate Division Judgment, p 7) un-simplified on grounds that are deeply psychological and remotely related to any standard constitutional adjudication.

Factors simplifying the case are two-fold. First, both sides of the argument acknowledged the presence of some “Basic Structures” in the constitution, though there are a lot of people who reject the dogma. Second, both the sides admitted Independence of Judiciary as one of those basics. This being settled, the question that called for answer is simply this – “Which of the two alternatives - parliament or the supreme judicial council - would preserve the Independence of Judiciary?”

While a simple question usually invites a simple answer, this one got un-simplified by some so-called “long and chequered history” (AD Judgment, p 8) preceding the amendment. From all their intents and purposes, the writ petitioners, amicus curies and the judges in the High Court Division and Appellate Division attempted to adjudicate a constitutional amendment on perceptions that are overwhelmingly jaundiced and fetched by unacceptable pride and prejudices. Golden thread of the mentality is that parliamentary involvement in judges’ removal process is a threat upon the judicial independence and it must be rejected. Look at some of the comments and observations made throughout the judgment of the Appellate Division:

In absence of a free and fair election the Parliament may be lacking wise politicians and therefore may not be matured enough to handle the removal of Supreme Court Judges (p 205). The women members in the reserved seats are not elected and hence not suitable to sit over impeachment of judges (p 214). Even the elected representatives will not be able to exercise their judgment free from party dominance due to the infamous article 70 (p 270-282). Criminalization of parliament and politics is a serious concern (p 192). The power is therefore not safe in the hands of “power monsters” (p 228). Not all things done by the military rulers are bad. Things that are “useful,” “tend to advance or promote the need of the people” and “augment the independence of judiciary and welfare of the people” etc may be welcomed (p 149). Parliamentarians moved for the amendment in a “knee-jerk reaction” to some earlier tussles between the executive and the judiciary (p 601). Parliamentarians are extremely interested in legislating on judges’ removal while failing to legislate on their appointment first (p 782). Before assuming the power, parliamentarians should have thought “whether they are capable of dealing with such responsibility” (p 223). The power would be used as an instrument to penalize or intimidate Judges (p 328). A judge may be removed for a decision given on an important or sensitive issue (p 473, 549). Judges may face dilemma in handling cases against the parliamentarians (p 199). Relying on institutional virtuosity in this case would not be safe because institutions are comprised of human being ultimately (p 226). If some human-being are to be trusted at all, it must be the judges (p 234). “The Supreme Court is respected internally and globally for its professionalism and unbiased rulings and people from all walks of life repose faith upon it all the time” (p 334). “Thus when the question of removal of any person holding a post of Supreme Court Judges’ status arises, that should be and must be dealt with by such council of their own people, of course higher in rank” (p 796). It is therefore “an irony that the Parliament is totally unable to transact its basic functions but [it] wants to wise-pull one of the most successful organs of the State, that is, the Supreme Court of Bangladesh” (p 219).

Ideally, the legal question for this legal dispute called for a constitutional, structural and institutional answer. This unfortunately was not the case in this case. Like all other constitutional office bearers, the Judges take an oath to discharge their official responsibilities without any “fear or favour”. The over-all psyche as transpires from the comments and observations mentioned above shows that the Court was most probably driven by a “fear” of the legislature and legislative process and a “favour” towards protectionism and its own institutional grandeur. So sensitive was the Bench that Barrister Ajmalul Hossain QC’s purely legalistic request to be “extremely careful” in deciding a case involving its institutional interest was taken by the Court as “highly unkind and derogatory” (p 235). Law folks very rarely face such a tough reply.

With this un-simple psyche taking the driving seat of the case, a lot of other simply legal arguments attempted by the parties, lawyers and the Court were bound to be less emphasized, misinterpreted or even misguided. Since the word limits of this article prohibits a detailed analysis those, I would like to rest by pointing out at least four areas where the Court have attempted to innovate principles to hardly be found within the four corners of our constitutional jurisprudence.

First, putting the horse before the cart, the Court argued that ours is a popular sovereignty limited by the constitution and its patent and latent basic structures. Peoples’ representatives will exercise the peoples’ power subject to the basic structures determined by the unelected judges. Here in Bangladesh, the written constitution and its unscripted basic structures would guide the peoples’ will, not the vice versa (p 481-82, 591). Secondly, “under the constitution, the higher judiciary is entirely separated from the Executive and Legislature and is absolutely independent” (p 239). Thirdly, apart from basic structures, parliament’s amendment power has a new stumbling block. It may not “restore” or “return to” the original constitution since these words are not used in article 142 (p 321, 593). Fourthly, Anwar Hossain Chowdhury case was so far understood as saying that dislodging of basic structures of the original constitution is not permitted even through subsequent constitutional amendments. It now appears that some basic structures may be dislodged by subsequent amendments (like 4th and 5th amendments) and if lucky enough to be condoned by the Court (like 5th amendment case), they may even generate fresh basic structures and we must start counting the basic structures a fresh from there (p 354-55, 575-76, 584).

On a closing note, the position taken by Mr. Justice Hassan Foyez Siddiqui at page 756 of the judgment has the potential to offer a plausible middle ground in this emotionally charged un-simplified legal battle. Justice Siddiqui calls for the investigative role to be assigned to the Supreme Court while the impeachment or removal power may constitutionally reside with the parliament.

Link to the Daily Observer: http://www.observerbd.com/details.php?id=91389