- 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!
- 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.
- 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!
- 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.
- Replaced article 96 was hereunder:
- 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.
Mechanism for removal of a constitutional functionary
[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.
“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
- 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.
- 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.
To be continued
[i] Syed Shahidur Rahman_AD-16 Sep ’15 Code of Conduct