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.
- 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]
- 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.
- 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:
(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.
- 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.
To be continued
[i] Article 55 of the Constitution
- Mujibur Rahman v. Bangladesh: (1992) 44 DLR (AD) 111