Barrister M Qaium :
A.V. Dicey in his famous book ‘The Law of Constitution’ stated that “This system, which makes the Judges the guardians of the Constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation”. Supreme Court becomes guardian of our Constitution whenever question of constitutionality of legislation becomes justiciable and brought before it. The issue of judicial review power of Supreme Court has once again come to light recently when Prime Minister Shiekh Hasina has expressed her concern that “If any law is declared null and void by a two-member bench, all the efforts behind the process go in vein” (dailystar and independent report). Earlier Supreme Court nullified many legislations including few amendments of constitution as Ultra Vires the Constitution. PM passed the remark on April, 14 2017 while inaugurating newly built Supreme Court Judges Complex. PM also called on the judges for considering the matter more carefully. An analysis of the constitutional provisions may be pertinent in this regard following the remark made by our PM.
At the very outset it should be made clear that three branches of our state namely executive legislature and judiciary have their specific tasks to do and Judiciary is specifically tasked and mandated by our glorious constitution to examine laws that allegedly breach constitutional limit and infringe rights of the people guaranteed in chapter III and also when those laws are enacted in contravention of the other constitutional provisions, if issues are brought before the court as justiciable. This review power of the SC as mandated by constitution is necessary to prevent ruling class from legislating in contravention of constitutional provision. It is also necessary for preservation of fundamental rights of persons and property from hasty and oppressive action of the popular majorities, and to enforce constitutional privileges and immunities conferred in our constitution and to preserve the supremacy of the constitution as opposed to the supremacy of executive as well as for the harmonious and uniform interpretation of the constitutional laws. More so the judicial review of the legislation is necessary to make effective system of government by checks and balances, as contemplated by the framers of our constitution. It was observed in the judgment of 16th amendment case that “It is axiomatic that judicial review is the soul of the Judiciary in a written Constitution…..judicial review is being expanded through judicial activism with the passage of time facilitating the citizens’ access to justice. A great duty is cast upon the Lawyers and Judges of the Apex Court of Bangladesh for onward march of our constitutional journey to its desired destination.”
As we are aware that the Preamble of the Constitution of Bangladesh states ‘Rule of Law’ as one of the objectives to be attained. The term ‘Rule of Law’ has various shades of meaning and one of them is well established as A.V. Dicey’s concept of rule of law which states that “individual liberties legally protected not through any bill of rights, but through the development of common law.” ‘Rule of Law’ was recognized in 8th amendment case as one of the basic features of our constitution.
Now it cannot be made clearer that “Rule of Law’ does not mean and include the ‘Law’ passed arbitrarily in contravention of constitutional provision violating rights guaranteed in constitution. In a very clear term HCD in 16th amendment case explained that ” ‘Law’ does not mean anything that Parliament may pass. Articles 27, 31 and 32 have taken care of the qualitative aspects of law. Article 27 forbids discrimination in law or in State actions, while Articles 31 and 32 import the concept of due process, both substantive and procedural, and thus prohibit arbitrary or unreasonable law or State actions. The Constitution further guarantees in Part III certain rights including freedom of thought, speech and expression to ensure respect for the supreme value of human dignity.”
Though in United Kingdom, sovereignty of parliament is recognized as supreme in making and unmaking laws which cannot be set aside by court. However unlike UK, Bangladesh India and United States are governed by written constitutions which limited legislative power of parliament and provided judicial review power to SC whenever parliament transgresses its limitation.
The judicial review power of Supreme Court exists as it guards the Supremacy of the Constitution for the interest of all citizens. This power is given to SC by the framers to oversee whether legislations passed within the mandate provided by constitution under any circumstances. This constitutional power of SC reminds legislature and executive that their actions shall not be valid unless it is in conformity with the Constitution both in letter and spirit. If any of actions is actually inconsistent with the provisions of the Constitution, such action shall be void and cannot, under any circumstances, be ratified by passing a declaratory law in Parliament. If a law is unconstitutional, it may be re-enacted removing the inconsistency with the Constitution or re-enacted after amendment of the Constitution. Even if an amendment of the Constitution is made in derogation of the Constitutional provisions, the amendment cannot be declared to have been validly made. Such an amendment being beyond the constituent power of Parliament must be discarded as a fraud on the Constitution, it was observed by the apex court in a decision reported in 62 DLR.
Legislature must also keep in mind that the power of the Legislature is limited by the Constitution and they are prohibited from passing certain laws even if it apparently appears to be within the limits prescribed by the Constitution; but in substance, goes beyond the constitutional limitation and achieves an object which is prohibited by the Constitution. In that circumstance the court calls it colourable legislation and thus declares it as void. It means and establishes a principle that what cannot be done directly cannot also be done indirectly. The underlying idea is that Legislature must not overstep the field of its competence by adopting an indirect means. Adoption of such an indirect means to overcome the constitutional limitation is often characterised by our apex court as a fraud on the Constitution and was rightly turned down as ultra vires and void. The constitution being supreme law of the land unequivocally states in article 7- “(1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.” It means mandate of constitution shall prevail under all circumstances as constitution is the source of legitimacy of all legislative actions. The Apex courtbranded article 7 as a ‘Pole Star’ of our constitution.
In Anwar Hussain Chowdhury popularly known as 8th amendment case it was held by the Apex court that the power of the Supreme Court in judicial review conferred by article 102 is one of the fundamental features of our constitution and it cannot be taken away by any subsequent law or event or even by an amendment of the constitution. The Apex Court introducing ‘Doctrine of Basic Structure” also held that the power of amendment does not extend to alteration or destruction of the basic structure or feature of the constitution.
Apart from the constitutional provisions power of judicial review was developed through judicial activism. For the first time Supreme Court of US exercising its judicial review power turned down an act of Congress as unconstitutional in 1803 in Marbury v. Madison case forming the basis for the exercise of Judicial review in common law jurisdictions. The then Chief Justice of USA Justice Marshall held that “the Court, in the exercise of its judicial functions, had the power to say what the law was, and if it was found an Act of Congress conflicted with the Constitution, it had the duty to say that the Act was not law.”
In our jurisdiction article 7 read with article 102 of our constitution established the judicial review power of Supreme Court to declare any provision of law void on the ground of inconsistency with provision of constitution. However apex court declined to enter into the political question. In both Abdul Mannan Bhuiyan and Dulichand cases the court held similar views that if the validity or legality of the law could otherwise be decided then court should refrain from answering political question. It can therefore be said that our judges do not answer political questions in judicial review forum rather they only examine constitutionality of legislation and whether such legislation comports with the rights guaranteed in part III of our Constitution. In People’s Union For Civil Liberties (PUCL) and another…Vs…Union of India and another case the SC of India held that ‘the Legislature cannot overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the Legislature cannot trench on the judicial power vested in the Courts’.
The power of SC in judicial review forum is an indispensable condition of democracy and if the Judiciary fails, the Constitution fails and in that case the people might opt for some other alternative which would bring no god result for the nation. Executive and legislature should always facilitate an environment where people feel confident at judiciary and its independence so that constitutional system may work properly and provisions of constitution are preserved. Independence of the Judiciary is one of the most important pillars of modern democracy and so long as the Judiciary remains truly separate and distinct from the Legislature and the Executive, the people’s power will never be endangered.
(M Qaium, Barrister (Hon’ble Society of Gray’s Inn), Advocate, Supreme Court of Bangladesh. email; [email protected])
