Judging apex judges by parliamentarians

The 16th Amendment to the Constitution of Bangladesh in 2014 removed the power to impeach apex court judges from the Supreme Judicial Council to Parliament. This amendment has been declared unconstitutional by the High Court Division and recently by the Appellate Division of the Bangladesh Supreme Court. The Prime Minister rightly said that this decision is indicative of the independence of the judiciary. Also, the Law Minister publicly announced that the gazette notification of appointable qualifications of apex judges would be published soon by 15 July 2017. These are certainly welcoming developments for consolidating the constitutional basic structure of an independent judiciary.

However, the apex court's decision on the 16th Amendment has generated considerable resentments and blistering attacks by parliamentarians in manner and languages unprecedented in any form of parliamentary code of conduct. Some criticisms sound like arrogance of ignorance, while others attacking the messengers instead of their messages. The argument that Parliament, being an elected body, should prevail over the apex court. Parliament is a creation of, and derives its power from, the Constitution. Parliamentary powers, however passionately asserted and widely exercised, must stay within their constitutional limits set under Article 7(2). It is the apex Court's constitutional duty to determine whether Parliament has acted within the constitutional limits and enactments beyond this limit may suffer from legitimacy crisis. It is in this sense that Bangladesh Parliament is a non-sovereign law-making body. Another criticism suggests that the apex Court may keep on giving judgments, which will not be enforced through parliamentary endorsement as is the case with the 15th Amendment scaping the caretaker government system. This claim requiring parliamentary endorsement for enforcement contradicts Article 112 of the Constitution, which requires Parliament to 'act in aid of the Supreme Court'. These reckless and arbitrary claims do not exist in the Constitution, which has made the Supreme Court, not Parliament, the guardian of the Constitution.

The apex Court declared the 16th Amendment unconstitutional by exercising the same judicial review power under article 105 of the Constitution that enabled it to declare the 5th, 7th, and 13th Amendments unconstitutional. Instead of entering into an analysis of major amendments to the Constitution, it is enough to say that most, if not all, of them were enacted by civil and military governments alike to serve the sectarian interest of political parties to consolidate their position in power, not necessarily to advance constitutionalism. If Parliament enacts amendments (a) validating martial law parallel with and superseding the Constitution, the supreme law of the land (Article 7:1); (b) creating an unelected presidential form of caretaker government in presence of Article 11 requiring elected government and within a parliamentary form of government; (c) introducing government permission required before bringing any corruption proceedings against public servants, MPs, and ministers in flagrant defiance of the constitutional guarantee of equality before law under article 27 of the Constitution, what palatable constitutional duty the apex Court can perform other than to declare them unconstitutional. This is what precisely happened in the case of the 16th Amendment.

The arguments that the 16th Amendment was an attempt to restore the 1972 original Constitution and that Parliament has the power to remove apex judges in Commonwealth parliamentary form of governments represent half-truth. The restoration of the 1972 Constitution is intuitively appealing but the issue here at stake is the separation and independence of the judiciary, which is unlikely to be achieved in the absence of implementing Articles 115 and 116 of the Constitution authorising the President for the appointment, control, and disciplines of subordinate courts in consultation with the Supreme Court. Neither the 16th Amendment nor the Parliament initiated any steps to implement these constitutional provisions. The Commonwealth Secretariat Study of 2015 shows that the majority Parliaments, indeed two-thirds, (32 out of 48) do not have this power. Finding examples of Commonwealth Parliaments having opposition parliamentarians as ministers and parliamentarians' views eclipsing under the restrictive shadow of article 70 of the Constitution would be an uphill daunting task.

Rules of Procedure of Bangladesh Parliament made in April 1973 by the President pursuant to Article 75(1)(a) of the Constitution, adopted by Parliament on 22 July 1974, gazetted on 23 July 1974, as amended up to 11 January 2007 have made certain matters off-limit of Parliament. Rules 53(xviii) (xx:a), 63(xi) (xii), and 133 (iv) (v) impose explicit restrictions on issues to be raised and adjourned that “it shall not relate to any matter which is under adjudication by a court of law [and] it shall not contain a reflection on the President or a Judge of the Supreme Court”.  The apex Court appointed 12 leading lawyers as amici curiae to advise it on the constitutionality of the 16th Amendment and none of them supported the parliamentary power to remove apex judges. Yet two of them borne the full brunt of the attacks, presumably because they were the pioneers in drafting the 1972 original Constitution. Since their professional opinions went against the 16th Amendment, they became 'opportunists', who were hailed high in 1972 for their historic contributions to the development of constitutional rule of law in newly born Bangladesh.

The political culture of Bangladesh is littered with inconsistent policies and their hypocritical orientation. Parliament had the power of removal of apex judges under the 1972 Constitution, which was dropped by the 4th Amendment enacted in 1974 by the Awami League government, which restored it in the 16th Amendment in 2014. It was Awami League in opposition who engineered the idea of caretaker government and politically besieged BNP Government had to adopt it under the 13th Amendment in 1996, which was scraped by the incumbent Awami League government in 2011. Now BNP once its opponent has now become its ardent supporter. BNP expressed its support for the apex Court decision on the 16th Amendment. One of its senior member has publicly declared that a BNP government in power would create a separate and independent secretariat for the judiciary. And it is coming from a former BNP law minister (a) who repeatedly refused to appoint an ad hoc judge from the High Court Division to the Appellate Division, which could not hear the Bangabandhu Murder Appeal for want of judges (caused by expressions of embarrassment) despite previous precedent of appointing an ad hoc judge; and (b) who sought and got 26 time extensions for the implementation of the Masdar Hossain Directives of the apex Court and left the office without implementing them.

The culture of exercising political power acquired by whatever means beyond the limits of law is yet to be dissipated in Bangladesh. Parliament is neither above the constitutional rule of law, nor a touchstone so that all of its acts are inviolable law. The recent criticisms of the apex Court decision and its amici curiae on the 16th Amendment by some parliamentarians before the full judgment and potential review are politically premature and legally untenable under the Constitution and parliamentary rules of procedure, which should not be repeated should a parallel situation emerge in the future. These critics would have been better off by toeing to the line of the Prime Minister that the decision demonstrates the independence of the judiciary. The apex Court must display its tenacity to withstand such attacks and not to abdicate its constitutional role as the defender of the Constitution, which has endured so much military and political vandalism. Shrugging off reasoned judicial activism to protect the Constitution in favour of a malleable and pliable role would be a betrayal to the national quest for an independent judiciary in Bangladesh.

The writer is Professor of Law, Macquarie University, Australia.