Nation mired in dire constitutional crisis
Shahid Islam
The post-Eid politics is heading for an anti-climax, thanks to the Supreme Court decision to uphold a High Court Division verdict that stated: “The Sixteenth Amendment is a colourable legislation and is violative of the principle of separation of powers among the three organs of the State: the Executive, the Legislature and the Judiciary, and, the Independence of the Judiciary as guaranteed by Articles 94 (4) and 147 (2), two basic structures of the Constitution, and of Article 7B.” Article 7B imposes invalidity to any law in divergence with the intent and the spirit of the constitution.
This reverts, pending to any other judicial relief or remedy available to the government, the procedure of removing judges to its pre-16th amendment mode, which, since the amendment of Article 96 four decades ago, remained with the Supreme Judicial Council (SJC) that came into effect following a Proclamation (Amendment) Order in 1977 and, its inclusion into the constitution. The SJC’s composition is a simple one: the chief justice and two other senior most judges in the apex court.
Back to SJC
The amended proviso relating to the SJC ordained: “If, at any time, the Council (SJC) 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.” The proviso further stated: “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.”
The SJC mechanism was fully functional until the 16th amendment came into being. For instance, in March 2007, President Iajuddin Ahmed directed the SJC to investigate allegations of forgery against High Court judge Faisal Mahmud Faizee. Then SJC members, Chief Justice Md Ruhul Amin and two other senior judges, submitted a report to the President after investigating the allegation. The judges acted pursuant to the Codes of Conduct laid out in the aftermath of the SJC’s enactment into law; two such Codes of Conduct coming into effect in 1977 and in 2000.
Looming constitutional crisis
The 16th amendment (Act # 13, 2014) [which gave power to the parliament to remove judges if allegations of incapability or misconduct against them were proven] is hence a dead or suspended entity. Now the Supreme Court had denied that right to the lawmakers, branding it ultra vires the constitution; following filing of a writ under Article 102, which the government appealed, and finally lost on July 3. This judiciary-legislature tug of war poses the worst constitutional crisis the nation had ever faced.
How? Before delving into that expansive and intriguing spectrum, what in effect is a constitutional crisis? The answer will vary on who one asks; where, and under what context. Such prejudiced interpretations aside, one can easily posit: “A constitutional crisis is a crisis that emanates from the constitutional interpretation, or lack of it, of a given statute and its validity under the existential legal parameters.”
Whatever the mostly ‘unelected’ lawmakers of the day may say or believe, the highest court of the nation had consigned the 16th amendment to the trash box, triggering in the process ******** of misinterpretations as to whether the verdict automatically reinforces the efficacy of the defunct SJC, or the parliament must bring formal amendment to Article 96 to make that happen, as per the wishes of the judiciary. Equally pertinent and puzzling are the quandaries relating to the preceding amendments to the now discarded 16th amendment; i.e., the 13th, 14th and 15th amendments. They too have come to the fore now due to reasons outlined below.
Beginning of the crisis
Let’s start with the infamous 15th amendment which marked a démarche from the 13th Amendment that the Awami League (AL) and its Islamic and other allies confiscated under duress from then BNP regime in 1996. Upon being challenged of the constitutional validity of the 13th Amendment that had authorized an interim caretaker government (CG), not elected by the people, to preside over election and power transferring, the High Court rejected the petition in 2004 (57 DLR 171).
An appeal was filed in June 2005 following the death of the petitioner and, the case was heard in 2011. During the proceedings, the court admitted into evidence the opinion of eight Amicus Curiae —- seven of whom opined in favor of keeping the CG system.
Yet, for mysterious reasons, the then Chief Justice on May 10, 2011, only six days before heading for retirement, rendered a split verdict of 4/3 against retaining the CG system. This constituted the root of a lingering political crisis that had led to hundredds of deaths, crushing of the fair election mechanism, and to a virtual one-party rule in which non-elected MPs aspired to have the power even to remove judges and make laws of their choosing to rule the nation perpetually under any pretext. One of those preferred pretexts has been the branding of all dissents as terrorists and fundamentalists.
Perils of amendments
The scrapping of the Thirteenth Amendment ensured three successful elections. Prior to the 13th Amendment the nation witnessed hazardous and often violent rivalry as well as cloak and dagger political activism. Earlier, the Fourteenth Amendment was passed in May 2004 to make the Caretaker Government (CG) controversial by raising the retirement age of Supreme Court judges, one of whom was destined to lead the CG as the very first choice. The movement triggered by that amendment eventually led to the imposition of a state of emergency in 2007, after violence endured for weeks and proved the perils of all the partisan-driven constitutional amendments.
Simply put: The 13th Amendment led to the 14th, as a corollary, while the 15th amendment came as an orchestrated collusion between a ‘biased’ single judge and the executive hub to get rid of the CG proviso and bring back the business of electioneering under the partisan leverage of the government that be. In 2011, the Appellate Division of the Supreme Court declared the CTG, hence the Thirteenth Amendment, unconstitutional on the grounds that it stood opposed to the basic structure of the constitution by facilitating non-elected peoples’ running of the government.
Although the Court further held that the CG provision should be kept in place for the next two parliamentary elections in order to maintain peace and stability. Meanwhile clamour from the civil society, the media and the global observers echoed the dangers of monopolizing election by a single political party that had the record of being dictatorial through constitutional misusages—as was the Fourth Amendment of 1975 that proscribed all opposition political activism—but the ruling AL gave a hoot to what people said and crafted a design to cow down the entire judiciary.
Legality of government
This led the Chief Justice to state on more than one occasion that the incumbent AL regime wanted to control the supreme judicial organs of the nation after having monopolized its control on lower courts.
Curiously, as vocal as it was on pre-empting further executive interventions into the highest organ of the judiciary, it remained equally ambivalent on its interpretation of the legality of the January 5, 2014 election—-in so far as the interpretations of the constitution, and the myriad of electoral laws and guidelines, including the relevant RPOs, were concerned. The EC’s failure to ensure inclusive and participatory outcome of the election was an undoing that laws can never condone. At the least, the EC could have declared the election outcome null and void and called for re-election. The EC was solely responsible for the disgraceful spectacle of 154 seats having no contestants, out of 300.
The very essence of fair election—based on which Bangladesh struggled to achieve its independence from Pakistan following victory in the 1970 election—having been buried in an instant, the democracy too died a premature death. The voter turnout in 2014 election was at best 15 per cent —- in contrast to 74.37 per cent in 2001 and, 85.93 per cent in 2008. The local and municipal elections were virtually looted by the regime later.
Making mountain out of a molehill
This is why one must glance into the past to capture the highlights of the present. The crisis has grown into a mountain out of a mere mole hill since 2007. Until then, the CG system proved to be a sound standard procedure for fair election and transfer of power in many countries across the world since Bangladesh adopted the system in 1991.
Yet, the incumbent AL regime engineered a blueprint based on the ruling relating to a case filed in 2000 (Bangladesh Italian Marble Works Limited vs. Government of Bangladesh) by the owner of the Moon Cinema Hall, pursuant to Article 102 of the Constitution (WRIT PETITION NO. 6016 OF 2000), claiming that the declaration of Moon Cinema Hall as an abandoned property was unlawful due to what the petitioner claimed the “un-constitutionality of the Fifth Amendment Act by which various proclamations of the Martial Law were condoned by the Parliament in April 6, 1979.”
In its Judgment on August 29, 2005, a High Court Division bench comprised of Justice A.B.M. Khairul Haque and Justice A.T.M. Fazle Kabir declared the Fifth Amendment to the Constitution unlawful and directed the Government to hand over the physical possession of Moon Cinema Hall to its original owners.
Price of prejudices
Sensing the sky crashing by the forcible extraction of a single star from the galaxy that the 5th amendment was, a Chamber Judge stayed the execution of the High Court judgment the same day, upon an appeal filed by the incumbent government. Unfortunately, upon coming to power in 2009, the AL decided to plunder the entire forest in the name of cutting a single tree and, as per predisposed intent, cashed on this national misery by withdrawing the appeal on January 3, 2010. This allowed the High Court Division verdict to come into effect and render the Fifth Amendment null and void.
The chicken has now come home to roost, and the ruling AL must have a tryst with the destiny sooner. For two other writs filed by BNP’s secretary general and three lawyers of the Supreme Court challenging the 5th Amendment judgement await dispensation sooner. And, by implication, the 16th amendment verdict renders validity to a portion of the 5th amendment that had entailed and validated most of the actions of the post- 1975 military regime; hence made the 15th amendment too susceptible to being null and void in the future.
This leads to the presumption, and to the certitude, that the election held under a partisan political regime on January 5, 2014 was illegal, which we reiterated many times. The government elected in the process is illegal too. Buckle up, Bangladesh. Tougher sloughs lay ahead as more ‘judicial jingoism’ follows.
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SC rescinds parliament’s power to impeach judges
The Supreme Court’s remarkable verdict upholding the High Court ruling—-that declared the 16th Amendment to the Constitution passed by the Parliament unconstitutional and illegal—-deserves approbation and applause because it is a sanguine move for judicial independence and democracy as it will provide a bulwark against infringement of the Constitution.
The verdict finally reinstates the fundamental scheme of our Constitution that separates power among the three organs of the government.
True, in many countries the parliament is empowered to impeach an apex court judge, but it must not be forgotten that in those countries there is no Article 70 hanging as the Damocles sword over the heads of MPs—- this Article prevents MPs from voting freely. This judgement is definitely a legal and moral defeat of the ruling Awami League government. The 16th Amendment to the Constitution empowered the parliament to impeach any apex court judge for perceived or fabricated incapacity or misconduct.
“Salus republicae est suprema lex” means safety of the republic is the supreme law. The Appellate Division did not make the Caretaker Government (CG) illegal for the 10th and 11th general elections considering public and national interests. Contrary to this Sheikh Hasina’s irrational will prevailed—the consequence of which was prolonged turmoil and bloodshed in which hundreds of lives were lost.
An overwhelming majority, probably 80 per cent, of the people became frustrated and perplexed following controversy over the former CJ Mr. Justice Khairul Haque, who as a Functus Officio, completed his verdict on the CG litigation 16 months after his retirement.
A distinguished academic and former public university vice-chancellor questioned the former CJ’s “over-enthusiasm for abolishing the caretaker government system. Can he, without going against his oath as a judge, abolish an amendment that was given effect by the legislature in 1996?” The Appellate Division listened to 8 distinguished lawyers as Amicus Curie, 7 of whom opined in favour of the caretaker system.
A part of his short order on Caretaker Government could definitely be beneficial for the nation if obeyed by the AL government, as the learned CJ had suggested that TWO more general elections be held under CG.
Despite opposition of two former Chief Justices (CJs) and senior jurists four years ago to the move to restore the Jatiya Sangsad’s (or parliament’s) power to impeach apex court judges by rescinding the current Supreme Judicial Council (SJC) system at a meeting of the parliamentary body for constitutional amendment on April 24, 2011, the Cabinet in its meeting with Prime Minister Sheikh Hasina in the chair on 18 August 2014 approved the proposal on amending the Constitution to reinstate parliament’s authority to impeach Supreme Court (SC) judges on grounds of misconduct or incapacity.
Unquestionably, the judiciary must be able to deliver justice at liberty, absolutely freely and transparently without favour or discrimination to protect and uphold constitutional rights of the citizens irrespective of their political, religious or ethnic persuasion.
Considering the political realities obtaining in Bangladesh whose body politic is sharply divided into two distinctly divergent groups; a rubber stamp parliament where a lawmaker’s hands are tied as Article 70 of the Constitution debars him/her from voting independently in Parliament against the political party which nominated him/her as a candidate before election—-and with de jure authority but little de facto power—-the proposed law hang over the heads of SC judges like a sword of Damocles (an ever-present threat of an impending disaster). This is because if the judgment/s in court cases rule/s the government as guilty the judge concerned shall—-in all probability—-be hard-pressed, harassed or impeached by the JS or government.
As regards the outlandish, absolutely farcical parliamentary polls of 2014, the Election Commission (EC) was solely responsible for the reprehensible phenomenon of 154 seats having no contestants, out of 300. The hand-picked, spineless Chief Election Commissioner played dictated role. This harked back to the parable of Mizaru, Kikazaru and Iwazaru the three monkeys who vow to “see no evil, hear no evil, speak no evil. And the voter turnout in 2014 elections was merely 15 per cent or so, contrary to 74.37 per cent in 2001, and 85.93 per cent in 2008. The local and municipal elections were virtually looted by the regime later.
The AL rule since 2009 till date has offered the nation horrifying 7 contract murder, custodial deaths of opposition leaders, killings in the name of encounters by the RAB, police and other agencies; enforced disappearances of opposition leaders; closing down Channel One TV, Diganta TV, ban on Bengali daily Amar Desh and incarceration of its editor Mahmudur Rahman who has been in jail for over 850 days in two terms; as well as huge stock market scam, bank frauds and capital flight to the tune of billions of dollars unheard of anywhere before.
The Judiciary has been described as the last bastion of democracy.
The Supreme Court or the Appellate Division is the court of last resort, as its decisions also produce finality. Therefore, it is obligatory for all citizens to be respectful to it. Most constitutional theories require that the judiciary is separate from and independent of the government, in order to ensure the rule of law—-that is, to ensure that the law is enforced impartially and consistently no matter who is in power, and without undue influence from any other source. [Vide politics.co.uk/reference/judicial-independence]
The doctrine of the “separation of powers” has traditionally proposed that the state is divided into the separate and distinct organs of Executive, Legislature and Judiciary, whereby each arm acts as a “check and balance” on the others.
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