16TH AMENDMENT
Constitutionalism in Bangladesh
by Sadiya Sultana Silvee | Published: 00:05, Nov 23,2017 | Updated: 22:40, Nov 22,2017
THE 16th Amendment case has garnered a lot of attention. The debates centred on the question of how the separation of judiciary guarantee under Article 22 will be at stake and independence of judiciary will be in jeopardy, the basic structure will be affected, and the obiter dicta will be delimited.
The much talked about 16th amendment transferred the power of removal of judges from the president to the parliament.
Hence, some expressed their concern about the separation of judiciary guarantee under Article 22. Here, there is an interesting fact. Unlike Netherlands, India or Pakistan, our constitution has seen ‘executives’ (Part IV of the Constitution) and ‘parliament members’ (Part V of the Constitution) as different entities.
This means by stating ‘the state shall ensure the separation of the judiciary from the executive organs of the state’, Article 22 intended the executive organs mentioned in Part IV of the constitution. Though president shall appoint chief judges and the other judges after consultation with the chief justice (Article 95 of the Constitution); it has explicitly kept the judiciary separate from the other executive organs.
This clearly portrays the principle of checks and balances in our constitution, which allows the three branches of the government to be isolated from each other so that no branch can arbitrarily use its power over the functions of the other branch. Now, can we say Article 22 will be affected by the 16th Amendment?
Many argued 16th Amendment will have an impact on independence of judiciary which might hold the judges from making a decision impartially. In fact, this was one of the grounds for which the writ petition was accepted by the High Court. Here, it is important to understand independence (Value 1 of Bangalore Principles of Judicial Conduct) and impartially (Value 2 of Bangalore Principles of Judicial Conduct] are separate and distinct values.
A judge could be independent but not impartial (on a specific case by case basis), but a judge who is not independent cannot, by definition, be impartial, on an institutional basis (UNODC, Commentary on Bangalore Principles of Judicial Conduct at p. 57).
In Bangladesh, parliamentary sovereignty is a subject of the constitution of Bangladesh, which includes judicial review. By which judiciary holds the potential to declare laws, approved by the legislative branch, null and void.
In Aadhaar mandatory Case of India, the court stated, ‘the Supreme Court can strike down legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other constitutional rights/provisions of the constitution.’ In this context, the judiciary assumes the role of protector of the constitution and democracy, being the ultimate arbiter in all matters involving the interpretation of the constitution.
Here it is important to put light on Article 7B of our constitution. This article has given the extent of amending powers of the parliament. Besides, it has also given a direction to the Supreme Court to test the validity of such amendments. This means that while the parliament members have right to amend the constitution (Article, 142 of the constitution); the modifications are subject to be valid under the framework of the constitution itself, well known as the basic structure of the constitution.
Those who argued separation of judiciary and independence of judiciary will be at stake by the 16th Amendment, has also raised their concern on the basic structure of the constitution. Here it is important to remember Hans Kelsen. His Grundnorm’ (basic norm), which is the fulcrum of his ‘Pure Theory of Law’, is the source of the validity of all other norms of the system.
It resembles in one sense the historically first constitution, beyond which one cannot go. In Kelsen’s words, by means of the Grundnorm ‘the subjective meaning of the acts performed in accordance with the constitution, are interpreted as their objective meaning, as valid norms’ (Kelsen, Pure Theory of Law at p. 204). Hence, we can say our historically first constitution of 1972 is the basic norm of all laws in our country. After the 16th Amendment, we went back to our historically first constitution of 1972. Thus by declaring it unconstitutional, whether the court had overstepped its limit?
After this judgement, which constitution shall we look into to understand the basic structure of our constitution? With which constitution shall we compare it with?
Some might argue according to the common law legal system a judgments do comprises of obiter dicta, which are remarks or observations made by a judge. But, can these remarks or observations be beyond the facts and circumstances of the case? Though obiter dicta are persuasive only but, do have an influential value (Santa Clara County vs. Southern Pacific Railroad). By placing remarks on the credibility of the government and the parliament, judiciary has put the reputation of the nation in front of the global community at risk.
Furthermore, judges can restrain themselves from exercising their own power of judicial interpretation under the theory of judicial restraint. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Is returning to the historically first constitution of 1972 unconstitutional?
The 16th Amendment has pointed out the dilemmas to constitutionalism in Bangladesh.
It gave us food for thought. Do we have constitutionalism in Bangladesh at all?
Sadiya S Silvee is research assistant at Bangladesh Institute of Law and International Affairs and also associated with Centre for International Sustainable Development Law as a legal researcher.
http://www.newagebd.net/article/28932/constitutionalism-in-bangladesh
