Advocate Asaduzzaman Siddiqui and others vs Bangladesh (WRIT PETITION NO. 9989 OF 2014) [16th Amendment Case]

Introduction:

We know that, independence of judiciary is very important to uphold the Constitution (supreme law of a country) and democratic system of government. Independence of judiciary is a basic structure of the Constitution. The Apex Court of a country is lawfully treated as the guardian or custodian of the Constitution. As the Judges of the Apex Court are playing an important role, so, the appointment and the removal of the Judges of the Apex Court should be transparent and meaningful.

Fact of the Case:

The petitioners of this case are practicing lawyer of the Supreme Court of Bangladesh and are also the member of an organization named, ‘Human Rights and Peace for Bangladesh’. Their job is to promote and defend human rights and are establishing rule of law in the country. Petitioners of this case filed a writ petition challenging The Constitution (Sixteenth Amendment) Act, 2014, Article 96 which contains the provisions relating to the power & procedure of the removal of the Judges of the Supreme Court of Bangladesh.

Argument of the Petitioner:

1. 1. A mala fide intention is taken by the behest of political executives to amend Article 96 of The Constitution through the Parliament for interfering the independence of the Judges as the Apex Court of the Country already passed some decisions which is against some of the people that is Parliament in 2013 passed a law Contempt of Court which is held by the High Court Division void and ultra vires to the Constitution and The Anti-Corruption Commission (Amendment) Act, 2004, in which permission is necessary from the government to prosecute any public servant and the High Court Division held the amendment void and ultra vires the Constitution.
   2. The main function of the Members of Parliament is to enact laws. But at present they are involved in development works at their respective constituencies & the whole administration system is under the control of them and most of the cases they are from the business background. So they have the interest in litigation as most of the time Government is the respondent of the Public litigation. For that purposes, Judges of the Apex Court can’t deliver verdict against them as they have the power to introduce motion before the parliament against the Judges of the Apex Court and discuss the same and that’s why Judges can’t deliver verdict independently and impartially.
   3. Independent of Judiciary is one of the basic features of the Constitution. In many developed countries like India the Judges of the Apex Court may be removed in the ground of misbehavior and incapacity by passing the resolutions in their respective Parliament. But in our Country context the influential people including Members of Parliament ignore the law for their personal benefit. So, it is quite different from the other country to ours. The primary objective of passing 16^th amendment is to destroy the independence of Judiciary.
   4. The Sixteenth Amendment is ultra vires the Constitution because it is in the direct conflict with the spirit of the Preamble, Article 7B, Article 22 and Article 70 of The Constitution of Bangladesh respectively. The power conferred by 16^th amendment to the Parliament is beyond the jurisdiction of it and also the violation of basic features of the Constitution. The independence of Judiciary is the basic features of the Constitution and according to Article 7B, it shall not be amendable by way of insertion, modification, substitution, repeal or by any other means. Article 22 speaks about the separation of powers between the executive and judiciary. But 16^th Amendment gives wide power to the executive to interfere in judiciary. As the separation of powers is also the basic structures of the Constitution, so it can’t take away by any manner. The members of Parliament can’t express their opinion independently because of Article 70 and removal of judges of the Apex Court by Parliament shall be prejudiced by its implication.
   5. The 16^th Amendment is ultra vires the Constitution because it has undermined the dignity & the authority of the Supreme Court as the validity of the proceedings in Parliament shall not be questioned in any court according to Article 78 of the Constitution. The Supreme Court is the guardian of the Constitution and it will not allow any invasion to the judiciary. But 16^th Amendment opens the scope of invasion. In this regard 16^th amend is ultra vires the constitution.
   6. According to the verdict of the Supreme Court, 5^th Amendment of the Constitution is illegal and void ab initio subject to certain condonations. The provisions relating to removal of judges of the Supreme Court by the Supreme Judicial Council is endorsed by Appellate Division. So the provisions relating to the removal of the judges of the Supreme Court of Bangladesh by the Supreme Judicial Council can’t be substituted by the Parliament violating the verdict of the Supreme Court of Bangladesh.
   7. Though the removal of the Judges of Apex Courts in USA, UK and India are happened by passing resolutions in Parliament. They have bicameral legislature and their system of removal of judges is so complicated and balanced by the two houses of the legislature but in our Country legislature is unitary form and there is a possibility to use 16^th Amendment as a weapon to remove the Judges of the Apex Court of the Country.
   8. The 16^th Amendment is violated the Article 147(2) & 147(4) of the Constitution of Bangladesh.
   9. If the power of the removal of the Judges of the Apex Court is shifted to the Parliament, a different independent organ of the State, it will create an indirect control over the judiciary and affect the independence of judiciary.
   10. The independence of Judiciary and its institutional independence are affirmed by Article 94(4) and 116A of the Constitution of Bangladesh and are basic features of the Constitution. The Constitution does not give any power to the Parliament and the executive to demolish or otherwise curtail the independence of Judiciary in any manner.
   11. The tenure of the Judges plays an important role to declare and ensure justice, so the removal of the Judges shall be transparent.
   12. According to the amended Article 96(2) of the Constitution, Parliament has the power to make law relating to the removal of Judges of the Supreme Court in an ordinary manner and it will possible to change the law in favor of any political party and it will create the bar to deliver the verdict independently.
   13. 16^th Amendment shall create negative impact not only upon the Judiciary but also the member of the public service commission, Comptroller and Auditor General as well as upon the Election Commissioner and Commissioner of the Anti-Corruption Unit.
   14. The Judges of the Supreme Court can’t be removed from their office without proven misconduct and incapacity by fair, independent and impartial body free to conduct the inquiry. If the power of removal of Judges of Apex Court is given to the legislature then it will be against the spirit of the independence of Judiciary.

 Argument of the Respondent:

1. 5^th Amendment of the Constitution is illegal and void ab initio according to the verdict of the Supreme Court subject to certain condonations and it has endorsed the provision relating to Supreme Judicial Council and those were in condoned till 31^st December, 2012. That is why in 2011, provisions relating to Supreme Judicial Council were introduced in 15^th Amendment and it is not necessary to think that Supreme Court is in favor to retain the provisions relating to Supreme Judicial Council. Introducing the provisions relating to Supreme Judicial Council in 15^th Amendment is a journey to restore the original provisions relating to removal of the judges which is in the first Constitution in 1972. There is no intention to dominate the judiciary by passing 16^th Amendment by the legislature and executive.
2. In this writ petition no public interest is involved and for this reason 16^th Amendment can’t be challenged in form of judicial review.
3. 33% of the commonwealth jurisdictions are introduced Parliamentary removal system of the Judges of the Apex Court. The Westminster model is introduced in our country relating to the removal of Judges in the ground of proved misbehavior and incapacity. The government has the duty to restore and revive the original provisions of the Constitution of 1972.
4. Member of Parliament has no control over the executive and they are not functioned of all development work in their respective constituency rather they are appointed by the government as advisers of the Upazila Parishad and they have no scope to act arbitrarily. There is no example to expose the interest of the Members of Parliament in any case where the Judges can’t deliver their verdict independently. So, the independence of judiciary will not affect by 16^th Amendment of the Constitution.
5. The preamble is not conflicting with Article 96 of the original Constitution. So, 16^th Amendment is also not conflicted with the preamble as 16^th Amendment restored the original provision of Article 96 of the Constitution of 1972. Hence, Article 7B is not conflicting with 16^th Amendment.
6. 16^th Amendment is not creating any bar against the independence of the judiciary rather it changed the removal procedure of the Judges and restored the original provision of Article 96.
7. It is not true that Members of Parliament can’t express their opinion for the existence of Article 70. Every member has the right to express their opinion in Parliament. Removal of Judges is a Constitutional issue and that’s why it demands a debate amongst the Members of Parliament irrespective of their political identity. Parliament does not involve in the matter of investigation directly rather it will pass an Act of Parliament through which an independent body will be created to investigate the matter relating to removal of the Judges on the ground or misbehavior or incapacity. The accused Judge has the opportunity to defend himself during the investigation proceeding.
8. Petitioners are challenging the vires of the 16^th Amendment in form of public litigation but they are not ‘person aggrieved’ and for that reason petition are not maintainable. As the Parliament is not making any law relating to the amended Article 96(3) of the Constitution, the Writ Petition is premature.
9. Article 7 guarantees the people that they are the owner of all the power. This power is reflected by Article 52, 57, 74 and 96 of the original Constitution relating the impeachment of the President, resignation of Prime Minister, removal of the Speaker and removal of the Judges of the Supreme Court. However, Article 52, 57 and 74 remains unchanged but 96 are changed by the Martial law government which is against the spirit of Article 7. Introducing Supreme Judicial Council, the Martial law government takes away the power of the people which is exercised by the Parliament. Most of the country all over the world are exercised the removal of the Judges of Apex Court through the elected representatives. So in our country 16^th Amendment will not affect the independence of judiciary.
10. The respondent argued that power conferred to the Parliament relating to the removal of judges is not violating Article 96(4) and 116A.

Opinion of the Amicus Curiae:

1. Independence of Judiciary is playing an important role in a democratic country and in Bangladesh it is clearly stated in Article 22, 94 (4), 116A, 147 and in the Eighth Amendment case that independence of judiciary is one of the basic feature of the Constitution. In Masdar Hossain Case, it is re-affirmed the independence of judiciary. In the original Constitution the power of removal of judges in the hands of the Parliament and the Parliament member has the opportunity to express their opinion independently and free from the party directive. The power of removal of judges of the Supreme Court in the original Constitution stated would only be exercised after an inquiry conducted by an independent Judicial Inquiry Committee. If the Judiciary fails then the people will try to search alternative. The independence of Judiciary is an essential element but the Government by enacting 16^th Amendment is trying to control over the Judiciary. Security of tenure of the Judges is very important element to deliver verdict independently. But 16^th Amendment will create the bar and abstain to deliver verdict independently. By enacting 16^th Amendment Parliament disregard the decision of the Supreme Court. 16^th Amendment is violative the independence of Judiciary and separation of powers and also conflicting with Article 7B of the Constitution. 16^th Amendment is clearly varied the term of office of the Judges and clearly the violation of Article 147(2) of the Constitution.  Article 88 (b) and 89(1) secured the remuneration of the Judges and it can be discuss in the Parliament but can’t vote relating to this matter. Article 88 (b) and 89(1) is also the part of the basic structure as it uphold the independence of Judiciary. 16^th Amendment should not a piece of valid legislation in light of article 88 (b) and 89(1). The American system of removal of judges has been criticized as an unsatisfactory process as political and party influence has come into play. Due to Article 70 of the Constitution of Bangladesh, there is a very much possibility to removal of Judges by political interference ant the independence of Judiciary will be in a big trouble in our Country.
2. Experience is the best teacher and Article 96 of the original Constitution is not made by experience. Many countries are not happy of their removal system of Judges by Parliament. Separation of power must be in existence and Judiciary must be independence from the influence of legislature and executive. But 16^th Amendment is taken away the independent structure of the Judiciary. The removal procedure of Judges is the part of their appointment procedure. But in our country appointment procedure is not transparent. About 70% of the Members of Parliament are businessman and litigants. For the purpose of independence of Judiciary they should not take part of the removal procedure of the Judges of the Supreme Court on the ground of proven misbehavior and incapacity. Parliamentary removal system of the Judges of Apex Court in some countries is vague and become obsolete in the growing constitutional jurisprudence of the independence of judiciary. Home coming of Article 96 is conflicting with Masdar Hossain case, Fifth Amendment case and Eighth Amendment case etc.
3. The independence of Judiciary demands that the accused Judge should be tried by his peers for his misbehavior or incapacity and it is the best guarantee his independence of discharging of his functions.
4. The provisions relating to the Supreme Judicial Council was introduced by Martial law government in 1977 and in 5^th Amendment case it was condoned by the Appellate division of the Supreme Court of being more transparent and safeguarding the independence of Judiciary. In Civil Review Petition dated on 29^th March, 2011, Appellate Division modified its earlier decision in 5^th Amendment case and condoned the provision of Article 96 relating Supreme Judicial Council till the date of 31^st December, 2012.  After that, in 15^th Amendment Article 96 introduce the provision relating to the removal of Judges by the Supreme Judicial Council. 16^th Amendment will raise the question of the mind of the people about the independence of Judiciary. There is always a scope of abuse the power conferred by 16^th Amendment by the Member of Parliament in case of removal of the Judges of the Apex Court of the Country. 16^th Amendment of the Constitution directly violates Article 7B of the Constitution because independence of Judiciary is one of the basic structures of the Constitution. There is a question and it must be answered that is the 16^th Amendment for advanced public interest or defeated it. It is observed as the 16^th Amendment has defeated it. In our Country most of the legislatures have criminal records and according to 16^th Amendment they will involve in the proceedings of removal of Judges of the Supreme Court of Bangladesh. It may raise conflict of interest and may become a threat of independence of Judiciary and also the rule of law. For that reason 16^th Amendment is a colorable legislation and it must be declared unconstitutional.

Opinion of the Judges:

         I. The first question is that the Petitioners are person aggrieved or not. The expression ‘person aggrieved’ means a person who is not personally affected of the concerned matter but has sufficient interest in the matter in dispute. In this case, the Petitioners are not personally affected by the 16^th Amendment but as advocates they have sufficient interest in the establishment of rule of law in Bangladesh and also the interest of the independence of Judiciary. That is why, Petitioners are treated as ‘person aggrieved’ and the Writ Petition is maintainable.

      II.      The respondent argued that without formulating any law in pursuant the amended Article 96(3) of the Constitution the Writ Petition is premature. It is opined by the Justice that the vires of the 16^th Amendment can be gone into on its own merit under Article 102 of the Constitution whether any law is formulated or not and the Writ Petition is not premature.

   III.        The Executive department is accountable to the Legislature for the transparency of their actions and deeds. But it is not mentioned anywhere of the Constitution that the Judiciary shall be responsible or accountable to the Parliament. Through the 16th Amendment, the Apex Court will accountable to the Parliament for all actions implemented by its judges. It is against the doctrine of separation of power and as well as the independence of Judiciary because Judiciary is an independent Organ of the State amongst three.

   IV.       Independence of Judges is not only means the security of tenure and wages but also it means their oath to uphold the Constitution and laws without any fear.

      V.     From the third paragraph of the preamble it is clear that the fundamental aim of the State is to realize through the democratic process a society in which the rule of law will be secured for all citizens & it is the holy duty to safeguard, protect and defend the Constitution and maintain its supremacy. Independence of Judiciary is one of the basic structures of the Constitution and it must be preserved, protected and defended by the Judges of the Supreme Court at any cost.

   VI.     Article 88(b) and 89(1) are basic structures of the Constitution as it upheld and protected the independence of Judiciary.

VII.       The 16^th Amendment of the Constitution may make the Judiciary vulnerable and ineffective as the removal of the Judges of the Supreme Court may motivate by the Political pressure.

VIII.     Though USA, UK, India, Canada, Australia are practices Parliamentary removal process of the Judges of the Supreme Court but there is a fundamental difference between them and Bangladesh. In Bangladesh Article 70 plays an important role and hence it is not possible to introduce the Parliamentary removal system of Judges in Bangladesh.

   IX.        In validating the 16^th Amendment- political matter, the polarization of the people of our country and necessity of voting of the two-third member of the Parliament is taken into consideration and opined that Parliamentary removal system may collapse.

      X.   The independence of Judiciary is one of the basic structures of the Constitution and tenure of Judges is one of the core concepts of that independence. For that reason Article 96 relating to the removal of Judges of the Apex Court is not amendable under the Article 7B of the Constitution of Bangladesh.

Decision:

It is held by the Supreme Court that the 16^th Amendment is a colorable legislation and it is violating the separation of powers amongst the three Organs of the State. It is also violating of the independence of Judiciary guaranteed by Article 94(4) & 147(2) of the Constitution respectively. It also directly hit Article 7B of the Constitution. Therefore it is declared that 16^th Amendment is ultra vires the Constitution and held void and the Rule succeeds.

Observation:

Some of the country like USA, UK, India and Canada followed Parliamentary system of removal of Judges of the Apex Court. But their removal process is complex and our situation is quite different from them. They have bicameral government setup and the processes of removal of judges are balanced by the tow house. Our government is unitary form and most of the Members of Parliament are business man and litigants. If the power of removal of Judges of Apex Court is conferred to them, here is a possibility to misuse the power and the tenure of Judges will become insecure. It will restrain the Judges to deliver verdict independently. Separation of Power is very important in modern democratic society and independence of Judiciary is one of the basic structures of the Constitution. While removal of Judges of Apex Court will conferred to the legislature then they will indirectly control the Judiciary which is against the separation of Power and the independence of Judiciary. Though, provisions relating to the Supreme Judicial Council were introduced by the Martial Law regime of 1977 but it is condoned by the Supreme Court as it is more transparent procedure and also it is introduced in 15^th Amendment respectively. So it can’t be stigmatized by saying that it was introduced by Martial law regime. Hence, it was introduced in 15^th Amendment and it can’t be alter by any other means regarding Article 7B of the Constitution.

Conclusion:

We believe in separation of powers and independence of the three organ of the country namely, Executive, Legislature and Judiciary. If any of amongst the three organs is not working independently, it will be a biggest concern of us.  If independence of Judiciary is hampered by any manner, it will very difficult to ensure justice. So, independence of Judiciary is very important. This verdict is a landmark on the ground of the independence of Judiciary.

Written By ---
Md Sajib Ali
Department of Land Management and Law
Jagannath University, Dhaka

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