Advocate Asaduzzaman Siddiqui v. Bangladesh:
Bangladesh's Dilemma with Judges' Removal
M Jashim Ali Chowdhury* & Nirmal Kumar Saha**
Published in the Comparative Constitutional and Administrative Law Quarterly (Delhi), Volume 3 Issue 3 (2017)
For the full article with appropriate footnotes and page references please follow the link:
ABSTRACT
Like the major constitutional systems of the world, Bangladesh had a parliamentary removal process for the judges of the highest court. The system was however changed by the military rulers of late 1970s. Very recently, the parliament of Bangladesh attempted to revive the original system and an amendment of the Constitution of Bangladesh, the Sixteenth Amendment, was passed in 2014. The case in hand, Asaduzzaman Siddiqui v. Bangladesh is a challenge to this Amendment. This case comment looks into the arguments and reasoning of the case and argues that the judges and counsels concerned have wasted a chance to analyze this Amendment from its proper perspective. Therefore, a very high profile constitutional litigation ended in adding virtually nothing to the constitutional jurisprudence of Bangladesh.
INTRODUCTION
Executive, legislature and judiciary constitute the principle organs of a modern body politic. Constitutions thrive to demarcate each organ’s place and limits through creative articulation of separation of power and checks and balances. Keeping the democratic sovereignty of the people as foundation, the three organs continue to struggle and co-operate with each other in managing the affairs of the State. In the overall framework, the elected executive remains answerable to the legislature, and the legislature to the people. Judiciary, on the other hand seeks to guard the due observance of the law of the land – the Constitution by the executive and legislature. However, the judiciary being an unelected organ gives a further justification for participation of the executive and legislature.. Participation of the legislature in appointment to and removal from the higher judiciary is a well-established trend across the world’s leading constitutional systems. In the U.K., judges are removed by the Crown after both the Houses pass a resolution indicting him for corruption or offences involving moral turpitude. In the U.S., judges of the Supreme Court would be removed through the combined efforts of House of Representatives and the Senate. The Indian Parliament also enjoys this privilege. The Constitution of Bangladesh (hereinafter referred to as “the Constitution”) originally provided for parliamentary removal of a Supreme Court judge found guilty of ‘gross misconduct’ and physical or mental incapacity to perform the functions of his/her office.
Executive, legislature and judiciary constitute the principle organs of a modern body politic. Constitutions thrive to demarcate each organ’s place and limits through creative articulation of separation of power and checks and balances. Keeping the democratic sovereignty of the people as foundation, the three organs continue to struggle and co-operate with each other in managing the affairs of the State. In the overall framework, the elected executive remains answerable to the legislature, and the legislature to the people. Judiciary, on the other hand seeks to guard the due observance of the law of the land – the Constitution by the executive and legislature. However, the judiciary being an unelected organ gives a further justification for participation of the executive and legislature.. Participation of the legislature in appointment to and removal from the higher judiciary is a well-established trend across the world’s leading constitutional systems. In the U.K., judges are removed by the Crown after both the Houses pass a resolution indicting him for corruption or offences involving moral turpitude. In the U.S., judges of the Supreme Court would be removed through the combined efforts of House of Representatives and the Senate. The Indian Parliament also enjoys this privilege. The Constitution of Bangladesh (hereinafter referred to as “the Constitution”) originally provided for parliamentary removal of a Supreme Court judge found guilty of ‘gross misconduct’ and physical or mental incapacity to perform the functions of his/her office.
The provision was later amended by a Martial Law Proclamation in 1977. The new system established a Supreme Judicial Council (hereinafter “the Council”) comprising the Chief Justice of Bangladesh and the two other senior judges in the Appellate Division of the Supreme Court. Under the new system, the President would write to the Chief Justice to initiate an investigation by the Council into any allegation communicated to him against any judge from any reliable source. Even the Council itself may communicate to the President any such information or allegation of misconduct against any judge. Upon receipt of such information or allegation, the President would need to satisfy himself that he has reasons to ‘apprehend’ that a judge is physically or mentally incapacitated or has committed a gross misconduct. Unless and until the President is so satisfied and he formally authorises the Council, no investigation would start. If, after the investigation, the Council finds the allegation proved and recommends the judge concerned to be removed, the President ‘shall’ by order remove the judge from office.
Tailored to suit the temper of a military run presidential government, the Council system raised significant concerns over the efficiency and integrity of the whole process. Experiences also indicate that the executive being the dominant arbiter of things, the Council remained grossly dysfunctional and ineffective over the years. The ineffectiveness may be attributed primarily to the successive political executives’ reluctance to trigger the Council proceedings against judges appointed by the same government. The ineffectiveness is further coupled with the reluctance shown by the executive in instances where there had been apprehension that the Supreme Court judges would favor their colleagues during the investigation process. However, the system had been used once for the removal of a High Court Judge.
Interestingly, the judges in the higher judiciary remained self-content with this system as the actual investigation of an allegation and recommendation of the removal of a judge rested with the court itself – the Chief Justice and two other of his senior colleagues. This perhaps was the most plausible explanation for the Appellate Division acceding to this change in original Article 96 of the Constitution, though almost all other changes brought by the military regime in the Constitution was invalidated through the celebrated Fifth Amendment Judgment of 2009. The Appellate Division found the Council system more transparent and pro-judiciary than the original one involving the Parliament. The 15th Amendment of 2011, which brought almost the whole of the original Constitution back, left the Council system intact. The Parliament, however, changed its mind shortly. Accordingly, parliamentary involvement in the judges’ removal procedure was resurrected through the 16th Amendment of 2014.
The opinion on the parliamentary removal of judges is divided in Bangladesh. Some commentators have argued that parliamentary removal of judges goes more with the doctrines of separation of power and checks and balances. However, others have emphasized that the local specificities of Bangladesh coupled with the members of parliament being enchained within strict party affiliation pursuant to Article 70 of the Constitution do not give rise to an ideal position to show adequate respect to the independence of judiciary. The Supreme Court’s recent invalidation of the 16th Amendment Act in Advocate Asaduzzaman Siddiqui v. Bangladesh resides primarily on this apprehension.
THE SIXTEENTH AMENDMENT
Nine practicing advocates of the Supreme Court, affiliated with a NGO named Human Rights and Peace for Bangladesh (HRPB), filed a writ petition before the High Court Division of the Supreme Court challenging the constitutionality of 16th Amendment. The High Court Division declared the amendment unconstitutional and the Appellate Division agreed.While the constitutional challenge provided significant scope for the lawyers and judges to re-examine the whole fabric of the constitutional system of Bangladesh, the line of submission and reasoning adopted by the petitioners, respondents, amicus curie, majority and dissenting opinion were seriously disappointing. A thorough reading of the full text judgments of the High Court Division and Appellate Division in this case reveals that both the bar and bench failed to rise up to the occasion. Most of the arguments were based on a purely literal understanding of key constitutional principles, or were grossly polemic and insufficiently backed by sound constitutional analysis and reasoning.
A. Independence of Judiciary and Separation of Powers as Basic Structures of the Constitution
In Bangladesh, the doctrine of basic Sstructure is a widely used tool for the litigants and courts. Relying on Articles 7, 7B and 22 of the Constitution , it was argued that the Amendment would lead to legislative intervention in judicial business, thereby destroying the basic structure of judicial independence and separation of power. While these two constitutional precepts were overtly relied upon in the judgment, the doctrine of check and balance was neither argued by the petitioner nor the amici curiae. Therefore, the majority opinion at the High Court Division left aside a very important doctrine. While Article 22 of the Constitution deals with separation of judiciary from the executive, an amicus curie interpreted it as contemplating a judiciary free from the “interference” of the other two organs of the State. Neither the petitioner, nor the amicus curie and not even the majority, attempted an interpretation of “interference” vis a vis “check and balance”. Though the Attorney General Mahbubey Alam explained why and how the parliamentary removal process will not be an “interference,” rather an institutional participation in the overall accountability structure, the majority view did not accommodate that. Rather the majority opinion found “no earthly reason to disagree” with the petitioners’ views.
Further, the lead counsel of the petitioner’s side, Advocate Monjil Murshid, took a strict separatist view of executive, legislative and judicial functions. Unaccompanied by any substantial analysis of the constitutional scheme of separation of power and checks and balances, Mr. Murshid claimed that the Constitution contemplates a water tight separation between Executive, Legislature and Judiciary, and investigation into judges was a power of judicial nature unsuitable for parliamentary exercise. While the Constitution clearly rejects a water tight separation of power the majority however agreed with Mr. Monjil Murshid without highlighting any specific article of the constitution that contemplates such a water-tight separation.
In the Appellate Division, Chief Justice Surendra Kumar Sinha endorsed the majority view at the High Court Division holding: “Under the constitution, the higher judiciary is entirely separated from the Executive and Legislature and is absolutely independent.”Interestingly, the doctrine got an unusual dimension in the High Court Division when Justice Moyeenul Islam Chowdhury, posed a question regarding the 16th Amendment affecting the independence of judiciary, a basic structure of the Constitution, “in public perception?” According to him:
.. [A] billion-dollar question has arisen: whether the Sixteenth Amendment has infringed upon the independence of the Judiciary in public perception? My answer is obviously in the affirmative. In public perception, the independence of the Judiciary has been curbed by the Sixteenth Amendment. We must attach topmost importance to public perception when it comes to the question of independence of the Judiciary. If according to public perception, the Judiciary is not independent, then it cannot be sustained at all.
While “public perception” is hard to determine and is never a logical determiner of constitutionality, it is even harder for a judge on the Bench to go for an assessment of public perception on a pure legal question. Interestingly, Justice Moyeenul Islam Chowdhury concedes in at a later stage that courts “do not administer justice by plebiscite.”
B. Questions into the suitability and desirability of parliamentary involvement
The second question in the case was whether Parliament’s participation in the judges’ removal would constitute an infringement of judicial independence. Seen in this light, the desirability and permissibility of Parliament’s institutional participation in judges’ removal process was expected to be questioned, supported or tested by the parties and the judges. The case in hand, however, ended in some disappointingly misdirected arguments and reasoning.
Firstly, Dr. Kamal Hossain, an important amicus curie in the case has argued that since the Parliament is not entitled to reduce the salaries of the judges as per Articles 88 and 89 of the Constitution, it is also not entitled to remove them from their office. Like India, Articles 88 and 89 of the Constitution, consider the salaries and financial benefits of the higher court judges during their tenure, a charge upon the Consolidated Fund and the Parliament is prohibited from changing it to the judges’ disadvantage. However, Dr. Hossain failed to explain how this could preclude a parliamentary participation in the removal of a judge who is facing an allegation of misconduct and gross violation of the Constitution. Without much inquiry into the contextual and situation difference between these two cases, the majority opinion in the High Court Division felt “at one with” Dr Hossain. In the Appellate Division, Barrister Fida M Kamal took up the argument in a similar fashion and the Chief Justice endorsed the point.
Secondly, Dr. Hossain argued that transfer of the removal power from the Council to the Parliament would constitute a “disadvantageous” change in the terms of service of the sitting judges and therefore violate the Article 147(3) of the Constitution. This too was “palpably clear” to the majority opinion in the High Court Division. In the Appellate Division, Chief Justice Surendra Kumar Sinha adopted a similar reasoning. Interestingly, neither Dr. Hossain nor the majority opinion in the High Court Division clarified or explained in what sense a change in the removal procedure of a judge would constitute a disadvantageous variation in the terms and condition of his/her service. Had there been any disadvantageous change in the proposed law in relation to the grounds of removal, right of hearing, self-defence, salaries, amenities, privileges and retirement benefits etc of the judges concerned, there might have been a possibility of arguing along these lines. It remains arguable as to whether a mere change of procedure is harmful if its substantive entitlements are kept intact. Apart from a generalized mistrust in the Parliament as an institution “poking its nose” into the judges’ removal process, there seems to be no other substantive harm contemplated even by the petitioners and the amicus curie.
Thirdly, as regards the Parliament’s alleged unsuitability for participation in judges’ removal process, the petitioners, most of amici curiae and the majority judges in the High Court Division have drawn heavily upon ‘experience rather than logic’. The experiences as emphasized are that around 70 percent of the members of Parliament are businessmen, they are unmindful of their legislative responsibilities, quality of their legislative performance is of ‘low standard’, a lot of them have criminal records, they are severely restrained by Article 70 of the Constitution and partisan directives will rule the show. The ‘experience’ therefore leads the majority and others to the conclusion that the 16thAmendment would cause a violent blow to the independence of judiciary and separation of power –the two basic structures of the constitution.
Likewise the whole edifice of the Appellate Division judgment is based on exactly the same line of perception as regards Article 70:
“We find no infirmity in the views taken by the High Court Division on construction of article 70; and that in view of article 70, the members of Parliament must toe the party line in case of removal of any Judges of the Supreme Court. Consequently, the Judges will be left at the mercy of the party high command. We find nothing wrong in taking the above view.”
It appears that ‘experience’ based arguments like the above would not stand the test of appropriate and sound legal reasoning expected of any ordinary constitutionality challenge. Primarily, Bangladesh doesn’t have yet any single ‘experience’ of Parliament removing a Supreme Court judge on corrupt motive. Secondly, if we assume the “experience test” as adopted to be resembling to something like the American “living constitutionalism” discourse, it leads us nowhere. In the U.S. constitutional jurisprudence, the living constitutionalism or loose constructionism refers to an interpretative tendency where the court takes a pragmatist approach to constitutional interpretation and claims that sometimes keeping strict to the original meaning would be unacceptable as a matter of policy. These loose constructionists claim that drastic changes in the socio-legal ecology would often call for evolving interpretation of the fundamental law of the land. To the end, they reap from the broadly and flexibly drafted texts of the Constitution to achieve the desired outcome. Understandably that is not what the amicus curie and majority opinion were trying to achieve here in Asaduzzaman case. They were rather nullifying a system clearly and unquivocally endorsed and adopted by the framers of the original the Constitution as being inconsistent with the original Constitution itself (!) Thirdly, the experience test as used earlier by the Supreme Court of Bangladesh itself in the Thirteenth Amendment case is conextually different and hence unsuitable to be applied in this case. While nullifying the caretaker government system as introudced through the Thirteenth Amendment, the then Chief Justice A.B.M Khairul Hoque relied heavily on the unpleasant “experiences” the system caused to the judiciary. Scope of the retired Cheif Justices leading an election time government led to extreme politicisation of the appointment of Supreme Court judges, their elevation to Appellate Division and the ultimate seletion of the Cheif Justices. Justice Hoque and his colleagues, however, based their decision principally on undemocratic nature of the caretaker government and its pervasive attack on several basic structures of the original Constittution. The bitter experiences with appointment in the judiciary were rather used as corroborative facts substantiating their basic structure arguments. Unlike the Thirteenth Amendment case, the later experiences unrelated to the specific question in hand (the process of removal of judge itself) are sought to be used as nullifying tools in this case. It is our perception that the focal point of the case lies somewhere else.
If one seeks to test the constitutionality of a procedural device related to an institution like the Parliament, one must talk and argue from an institutional point of view. Judging the character traits of individuals comprising the institution (here the members of parliament) cannot be considered ideal judicial reasoning. When constitutional law academicians, lawyers and judges refer to constitutional institutions they usually refer to the relevant institutional dynamics, process and safeguards related to that. Therefore,t the question for determination in this case was whether Parliament as an institution was constitutionally and legally capable of possessing the power which it was seeking to have. The question here was not how good or bad the individual parliamentarians were. Quite disturbingly, this was the approach both the High Court Division and Appellate Division were overwhelmed with. The Appellate Division was particularly tough in the rejecting an institutional approach. Posting a big question mark over the caliber of the parliamentarians the Appellate Division held:
There is no chance of resting the matter in the ’safe’ hands of purely institutional virtuosity. The working of democratic institutions, like all other institutions, depends on the activities of human agents in utilizing opportunities for reasonable realisation.....
A important point for consideration in this case was overlooked by the High Court Division and counsels of both the sides. The doctrine of popular sovereignty that constitutes the basis of the democratic constitutionalism was not tested for or against either of the propositions. The Preamble, which has been identified as the “Pole Star” of the constitutional system of Bangladesh, coupled with Article 7 of the Constitution, which has been considered the foundation of all the basic structures, places the democratic sovereignty of the people on top of the whole body politic. Bangladesh is considered neither a parliamentary sovereign nor a judicial supremacy. The essence of the constitutional structure is that of a limited government – executive, legislative and judicial power limited by the appropriate constitutional norms. While the Supreme Court, as the perceived “guardian of the Constitution”, claims a right to circumscribe the exercise of executive and legislative powers, it appears a bit unprincipled for the Supreme Court to be reservationist in its own case and refuse to be subject to popular scrutiny ensured through the primary representative body of the Republic – the Parliament.
Though, the government tried to press the point before the Appellate Division, Chief Justice Surendra Kumar Sinha drove the argument to a totally untenable position. Justice Sinha framed the question from a wholly misdirected point. He rather asked whether the representatives of the people could exercise its power to destroy the Independence of Judiciary, as Basic Structure of the Constitution. Whereas the question for determination was whether the representatives of the people could constitutionally have a say in the judges removal process, Justice Sinha framed the issue as if it was whether the representatives of the people could violate the constitution in the peoples’ name. While answer to Justice Sinha’s issue is in the negative, it does not necessarily mean that answer to the actual issue pressed by the government would also be in the negative. Mr Justice Sinha thereby bypassed a substantially important argument placed before the Appellate Division.
Also in our opinion, the arguments relating to Article 70 of the Constitution lacks relevance in this case. Article 70 of the Constitution being placed in the original Constitution itself, it is now inconsistent for Dr. Hossain, the principle author of the Constitution, to argue that the framers of the original Constitution provided for parliamentary removal on the ‘premise’ that the MPs will exercise their power free from party directives. Moreover, if MPs’ mechanically obeying their party decision is a serious defect, then the similar problem lies with the Supreme Judicial Council as well. There the initiation of removal procedure and finally the actual decision to remove the judge concerned is in the hands of the President who, as per Article 48(3) of the Constitution, is more strictly bound by the party chief – the Prime Minister. While the evident mischief of the Prime Minister’s upper hand in the Supreme Judicial Council process ensured by Article 48(3) of the Constitution was not considered at all, the perceived mischief of Article 70 of the Constitution in the parliamentary removal process received substantial attention in the judgment. Further, operation of the Article 70 of the Constitution could have been easily avoided in cases of removal of judges by adopting some procedural devices like secret ballot voting and prohibition of official announcement of any party’s decision on a judge’s removal incident. This could have been achieved by the proposed subordinate law. In our opinion, the Supreme Court could have upheld the constitutionality of 16th Amendment and, at the same time, issued suitable directives on any such or other procedural devices that could be adopted in the subordinate law contemplated by Article 96(3) of the Constitution. Given the history of the 12 point directives in Masder Hossain case, issuing directives or judicious opinions in this fashion is not quite unusual in our jurisdiction. Attorney General Mahbubey Alam urged the court to wait to see how actually the power is going to be used as per the proposed subordinate law. The author judge in the High Court Division Justice Moyeenul Islam Chowdhury, however, was convinced that waiting for the subordinate law was not necessary. The 16th Amendment ‘in itself’ was violative of the basic structure of independence of judiciary and separation of power. It kept the President’s responsibility of removing the judges intact but made it subject to a parliamentary super majority decision. However, whether it has deprived the Appellate Division judges of their role in the investigation of an allegation against any of their colleagues or not is uncertain. Though the draft Bill that was presented before the High Court Division conveyed such an indication, it was a mere draft and as aforementioned, the High Court Division could very well pass some comments on that draft. Justice Moyeenul Islam Chowdhury, however, did not opt to suggest any modification there. Rather he was focusing on the 16th Amendment “in itself”. To him, the draft Bill was only “corroboration” of the 16th Amendment’s unconstitutionality.
Unfortunately, the Appellate Division also refused to think in line different from Justice Moyeenul Islam of the High Court Division. Justice Surendra Kumar Sinha rather mocked the argument by terming it “absolutely bereft of any logic and legal substance”. Appellate Division was of the opinion that waiting for a subordinate law pursuant to a “void Act would be like the phrase “the doctor came after the patient had died”.”
Fourthly, the petitioner, amici curiae and the majority opinion in the High Court Division appeared to rely heavily on some hypothetical “could be” considerations most of which were loosely tailored and not based on appreciation of the over-all body politic and accountability structure. Mr. Monjil Murshid feared that Parliament may harass innocent judges or the judges’ may be left at the mercy of Parliament. Dr. Hossain feared that the removal process may be influenced by “political clout and pressure.” Likewise, the author judge of the majority view assumed that the member of Parliamentss may try to bring judges into parliamentary discussion on a retaliatory motive and character-assassinate the higher court judges. Going one step further, the Appellate Division attempted a big list of possible parliamentary abuses that may threaten the highest court if the amendment is not stroke down immediately.
If we accept, for the sake of argument, that the Parliament will harass and vilify a Supreme Court judge on a given case, how much likely it is that they would be able to do so on a consistent basis? From an institutional point of view, the parliament and parliamentarian being more exposed and vulnerable to public deliberation and criticism, fear of gross abuse of legislative process to harass the judges’ on light excuses appears to be a far-fetched one.
C. A Modestly Comparative Appraoch
Another striking feature of the majority judgment is the relatively modest comparative analysis of the parliamentary removal vis-à-vis the Council system. The focus has beenon the numerical superiority of the Council system over the parliamentary removal system. The bottom line of the analysis of the majority judges is that around 63 per cent of the former British colonies have either the system of independent body free from parliamentary and executive influence or the system of ad hoc or permanent disciplinary council for removal of judges. Countires like Bahamas, Barbados, Botswana, Fiji, Jamaica, Ghana, Guyana, Kenya, Lesotho, Malaysia, Mauritius, Papua New Guinea are included in this category. Parliamentary removal on the other hand is preferred in only 33 percent of the common law jurisdictions which include Australia (federal), Bangladesh, Canada, India, South Africa, Sri Lanka, and the United Kingdom. Relying on this numerical superiority of the favored system, Justice Moyeenul Islam Chowdhury in the High Court Divison has drawn a conclusion that the parliamentary removal mechanism has not been preferred by the majority Commonwealth jurisdictions “obviously for upholding the separation of powers among the 3(three) organs of the State and for complete independence of the Judiciary from the other two organs of the State."
The fallacy of this blind numerical approach to an important constitutional and sturctural issue related to the original fabric of the Constitution is that the majority opinion of the High Court Division has failed to appreciate the contextual unsuitability of the Council system introduced by a martial law based presidential system installed in late 1970s with the Westminister parliamentary system of government installed by the original revolution of 1971 and resurrected by a subsequent mass upcharge in early 1990s. The conclusion drawn upon a grossly insufficient analysis into the question of familiarity and unfamiliarity of the constitutional systems of the apparent majority (63 percent) of ex-British colonies to the constitutional system of Bangladesh has made the judgment a modestly comparative one. On the other hand, the deeply rooted familiarity of Bangladeshi system with the constitutional systems of India and Britain (though belonging to minority 33 percet) was simply bypassed. If the constitutional scheme of Bangladesh is highly simliar to that of India and also if the doctrine of basic structure happens to be the corner stone of both the jurisdictions, then how could a parliamentary removal system violate basic structure in Bangladesh while it doesnot do the same in India?
The Appellate Division confined its version of comparative study within the statistical figures presented in the High Court opinion. It however attempted some analysis into the removal systems of India, USA and UK only to come to conclusion that solution must be searched within “our constitutional scheme”:
Mechanisms of other countries, which destroys the constitutional scheme of independence of the judiciary and separation of power as engrained in our Constitution, cannot be accepted simply because it is prevalent in some other countries.
D. Judicial Entrenchment of constitutional provisions?
A so far unheard argument was made in relation to the 5th Amendment judgment in the Bangladesh Italian Marble Works v. Bangladesh. It was claimed by the petitioner, and accepted by the majority opinion at the High Court Division, that condonation of the Supreme Judicial Council system by the Court in the 5th Amendment judgment has made the system permanently entrenched and the Parliament is not entitled to amend or change it a fresh. Mr. Manjil Murshed relied on an Indian case, which was not related to an electoral law amendment rather than a constitutional amendment, to argue that the Parliament cannot nullify a decision of the Supreme Court by subsequent legislation to the contrary. Gist of the argument is that if the Parliament wants to reenact an invalidated law, it must remove the unconstitutionality found by the Court and then go for a new enactment that does not contain the unconstitutional element. In the Appellate Division Chief Justice Surendra Kumar Sinha and Justice Syed Mahmud Hossain endorsed the view without any further explanation.
It is perhaps for the first time we see that a statutory principle is pressed as a constitutional principle. Under this new formulation, the judiciary now will not only decide what are the basic structures lurking within the Constitution, but also determine what should or should not be in the Constitution itself. Once the judiciary adjudges a constitutional amendment as valid or condones any change therein, it becomes permanently entrenched with no possibility of further amendment at any circumstances in the days ahead.
Quite curiously, the caretaker government system was introduced by the Parliament after a judgment of the High Court Division declaring the unsuitability of the concept of caretaker government “within the four corners” of the Constitution. That 13th Amendment was declared constitutional in a subsequent case and it was declared unconstitutional in yet another subsequent case. Does the court amend the Constitution every time it delivers a judgment? Does such judicial amendment become permanently entrenched in the Constitution? Neither ‘experience’ nor ‘logic’ confirms such a stiff proposition.
CONCLUDING REMARKS
From an overall analysis of the majority judgment in the 16th Amendment case, it is apparent that a generalized mistrust in the political forces and politicians and also the reservationist tendencies of the judicial folk and reluctance to move out of the judges’ natural comfort zone, have dominated the arguments and reasoning of the verdict. All of the petitioner, amicus curies and, to some extent, the majority in the High Court Division and the Full Bench of the Appellate Division failed to overcome the populist tendencies in legal reasoning and to take an institutional approach in the dispute at hand. While the Court could have raised specific objections on the draft Bill submitted before it and suggested the obligatory inclusion of judicial personnel in the investigating body and process, the 16th Amendment in itself could have been upheld.
Any commonsense appraisal of the issue will support the proposition that a system of judicial participation in the investigation of allegations, peoples’ representatives voting on a possible removal and the Prime Minister finally removing a Supreme Court judge via the President is much better, fair and transparent than a system that only involves the President, Prime Minister and Supreme Court judges themselves. No amount of basic structure arguments can sufficiently dislodge this proposition. Let us not forget that only one judge was actually removed by the Supreme Judicial Council since its inception. We have instances of controversial judges successfully avoiding the Supreme Judicial Council in the past. As said at the beginning, while some were permitted to silently leave the country, some others were simply invited to “tea” in the presidential palace and forced to resign. These we think are enough lessons for us to learn that a removal process whose beginning and ending lies with the sole discretion of the political executive is more “influenced by political clout and pressure” than a removal process that involves public deliberation in the open floor of the House.
One of the unfortunate features of this case is that the dissenting opinion in the High Court Division is more disappointing than the majority one. In the huge 125 page judgment, the dissenting judge Mr. Ashraful Kamal did not touch any single arguments of the parties and amicus curies. He had only to hold that the Supreme Judicial Council system being introduced by a military ruler was illegal and therefore 16th Amendment is constitutional and secondly, the original formulation of Article 96 of the Constitution (involving parliamentary removal system) was in line with independence of judiciary and hence constitutes a basic structure of the constitution. Apart from these two simple points, the dissenting judges colossally wasted an opportunity of coming out with powerful rebuttal of the majority opinion and providing the Appellate Division with some tools to work with in the appeal.
While the Appellate Division of the Suoreme Court has decisively invalidated the sixteenth amendment, the exact status of the Amendment in the Constitution remains somewhat obscure. Inpsite of sealing the debate, the verdict has reopened a fiercely debated but unresolved constitutional question as to how to execute the highest court verdict. On two earlier occassions of 8th amendment (1989) and 13th amendment judgement (2011), the Minsitry of Law and Justice simply went for a reprint of the constitution scraping the amendments that have been invalidated by the Appellate Division. A substantial number of experts however questioned the vercity of such a course of action and emphasised the requirement of parliamentary intervention in making the chagne effective. The Chief Justice Surendra Kumar Sinha, however, called for a meeting of the “reinstated” Supreme Judicial Council within two days of the publication of the full text verdict and adopted a 39 point Code of Coduct for the higher court judges. In reaction, the offended law makers are vehemently refusing to incorporate the Appellate Division verdict in the Constitution and some are arguing for reactment of the 16th amendment. Given the situation, it appears that the 16th aAmendment though remains in the Constitution in ink and pen, currently stands ineffective. Though the Chief Justice has “reinstated” the Suprem Judicial Council, it is not in the Constitution either. It would effectively mean that Bangladesh is currently facing a serious dilemma on judges’ removal. On the bottom line, which of the two systems would ultimately prevail depends on how far the Parliament and the Supreme Court of Bangladesh would be willing to negotiate their stance.
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