A. Mannan :
The recent Judgment by the Supreme Court of Bangladesh on the 16th Amendment to our Constitution is praiseworthy and legendary. No doubt the issue at stake is the burning one of the day. Nevertheless, some thoughts as explained herein have got to be brought to records for all and sundry.
Backgrounds: The said amendment refers to the Article 96 of our Constitution. Historical facts are as follows:-
1) Original Constitution: The relevant part of the Article 96 reads as “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 misbehavior or incapacity.”
2) After the 4th Amendment it reads as ÒAm`vPiY ev Amvg‡_©¨i Kvi‡Y ivóªcwZi Av‡`k Øviv †Kvb wePviK‡K Zuvnvi c` nB‡Z AcmvwiZ Kiv hvB‡e;Ó
3) Due to the 5th Amendment it reads “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:”
4) Thereafter in view of the 15th Amendment it reads: ÒGKwU mycÖxg RywWwmqvj KvDwÝj _vwK‡e hvnv GB Aby‡”Q‡` ÒKvDwÝjÓ ewjqv D‡jøwLZ nB‡e Ges evsjv‡`‡ki cÖavb wePvicwZ Ges Ab¨vb¨ wePvi‡Ki g‡a¨ cieZx© †h `yBRb K‡g© cÖexY Zuvnv‡`i jBqv MwVZ nB‡e:Ó
5) After the effect of 16th Amendment it reads more or less as that, in a nutshell, of (1) above.
Finally we have landed at the Judgment on the 16th Amendment to our sacred Constitution. The crux lies here.
1972 Constitution at that event of time could not perhaps comprehend the real impact of Article 70 of our Constitution that scared away Hon’ble MPs from the free voting, neither the idea of bi-cameral House could crystalline, perhaps it was too early to do so. Hob’ble MP’s have ever-since been voting on the party line. Similarly the issues of free-voting, clear-cut separation of Judiciary having been empowered to logical and Judicial functioning, readjustment of Article 70 like making it applicable only in case of no-confidence voting and passage of budgets, mechanism of control, checks and balance through bi-cameral House, as Parliament is the House of the Nation, holding of fair, impartial and ethical standard election, allowing more time in Parliament on bills rather than on smaller non-issues have never been contemplated and enforced to prevail upon all other lesser consequences.
Let us now look at the situation of Article 96 after the 4th Amendment of the Constitution. Needless to explain here that by then the system of Govt. was changed from Parliamentary form to presidential one. Obviously, some power or authority of Parliament was diverted from the House of the Nation to Bangabhaban, without realizing its total impact. Thus the amended Article 96 to remove Judges vested the authority to the President rather than rest it with Parliament. Such a move developed a hair-crack into the bones of our democracy. In order to democratize more the whole gamut, came up the concept of 5th Amendment to the Constitution, no matter who brought it in, the paramount question was it more democratic, balanced, rational and led-based idea towards separation of Judiciary having been empowered with more authority?
The 5th Amendment was incorporated with the advocacy of formation of Supreme Judicial Council (S.J.C). It was definitely imperative since the House was mono-cameral and not bi- cameral, incidence of Article 70 was predominant as it dwarfed the independent view of the Hon’ble MPs so long they were struggling to overcome.
The sweet 16th Amendment to our Constitution was designed to go back to the 1972 Constitutional provisions of Article 96 with its shortcomings; instead of a progressive approach the Govt. chose a regressive line. Let us here state the Indian approach in the matter for a stop-gap consideration for us e.g., to avoid hassle for the time being we may consider the Indian reform of S.J.C. save that the Speaker shall nominate a high profile Amicus curiae to preside over the S.J.C. in consultation with the Leader of the House and that of the Opposition. Until we change our mono cameral system of the House to a bi-cameral one we continue with CJ, and two next senior Judges of the SC to remain as other members of the S.J.C.
Instead of stop-gap approach the Govt. in order to cut short the route adopted 16th Amendment (a regressive approach), Alas, what a pity!
We have come to a point of no return. The Supreme Court has now given its legendary verdict terming the 16th Amendment as unconstitutional, illegal and ultra virus the Constitution. Details of the Judgment are yet to be known. However, the Judgment appears to have been given bearing the need to gain strength step by step towards more Judicial authority, rightfully though, for a logical conclusion of separation of Judiciary. The Judgment has, however, left it open, as it seems as to the needs during the transition period i.e. what should be the incidence of Article 96. Will it be that of 5th & 15th Amendments to follow i.e. reinstallation of Supreme Judicial Council to remove Judges or be that of 1972 Constitutional provisions? Simplest answer is the provision of 5th & 15th i.e. Supreme Judicial Council shall prevail until and unless the Constitution is amended otherwise. There can remain no vacuum. It has got to be filled in legally and traditionally. Certain quarter of the Govt. wings has been expressing that since the 5th Amendment of the Constitution is a product of Martial Law regime there is no merit to revent to S.C.J. This theory is self defeating as the 15th Amendment, a baby of the Supreme Court Judgment on the 13th Amendment, condoned as can be attributed to the martial law regime prompted, the issues like ‘Bismillah’ (wem&wgjøvn) !, citizenship as ‘Bangladeshi’, religion as ‘Islam’ that have emboldened their projections.
I could not resist myself from commenting once again the SC’s Judgment on the 13th Amendment to the Constitution that gave birth to the enactment of the 15th Amendment that cleared the way to implement Article 142, dropping the element of referendum i.e. a pro-people’s right. Article 142 did never contain any provision of ‘Referendum’ until the Fifth Amendment that introduced Article 142 1(b), IA, IB, IC regarding amendment of certain provisions of the Constitution requiring referendum, important for the people and the nation.
Unfortunately the judgments on the Fifth Amendment by both the SC (AD) and SC (HD) un-condoned the ‘Referendum’ and the Fifteenth Amendment was thus passed, the people (the voters) now are, in general, antagonistic and feel disgraced, whereas “Bismillahir Rahmanur Rahim” and ‘Bangladeshi’ as our nationality as well as article 96 as introduced by the Fifth Amendment, the said Judgment did not hesitate to condone, but Referendum however, did not merit in the said Judgment.
The questions may be asked on the following:
a) The Govt. enacted the 15th Amendment , a baby product of the SC’s Judgment on the 13th Amendment
b) The Govt. does not, as seems, feel comfortable with the SC’s Judgment on the 16th amendment
c) Authority knows very well that it can go for fresh amendment of Article 96 provided that it takes the following measures:
(i) To opt for bi-cameral House,
(ii) Article 70 be amended keeping only no confidence vote and budgets passage,
(iii) To restall referendum, maintain good governance (i.e. rule of law), to hold election that is fair, neutral and ethically and legally maintainable.
The present Judgment of the Supreme Court is the right approach but not the end in itself. Powers belong to the people.
Democratic power process is recycling like people vote for Parliament that revolves having spread its organs i.e. legislation, judiciary and executives. The key issue is good Governance. It is not survival of the fittest. The case in point is an issue of compliment, compatibility and mutualism amongst the organs of the state.
We may also reiterate to recognize that power corrupts people and absolute power corrupts absolutely. Since no one is above-law, so is not also the SC, – for we know that ‘Fiat justitia, ruat caelum’ i.e. let justice be done, though the heavens should fall.
(Abdul Mannan is a Former State Minister, Ministry of Civil Aviation & Tourism and Textiles. Former Member of Parliament (Dhaka-2) and Former President, South Asian Federation of Accountants (SAFA) E-mail : [email protected])
