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IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION PRESENT: Mr. Justice Surendra Kumar Sinha, Chief Justice Mr. Justice Md. Abdul Wahhab Miah Mrs. Justice Nazmun Ara Sultana Mr. Justice Syed Mahmud Hossain Mr. Justice Muhammad Imman Ali Mr. Justice Hasan Foez Siddique Mr. Justice Mirza Hussain Haider CIVIL APPEAL NO.06 OF 2017. (From the judgment and order dated 05.05.2016 passed by the High Court Division in Writ Petition No.9989 of 2014.) Government of Bangladesh and others: Appellants. =Versus= Advocate Asaduzzaman Siddiqui and others: Respondents. For the Appellants: Mr. Mahbubey Alam, Attorney General, with Mr. Murad Reza, Additional Attorney General, Mr. Momtaz Uddin Fakir, Additional Attorney General, Mr. Biswajit Debnath, Deputy Attorney General, Mr. Motaher Hossain Sazu, Deputy Attorney General, Mr. Md. Ekramul Hoque, Deputy Attorney General, Mr. Kh. Diliruzzaman, Deputy Attorney General, Mr. Masud Hasan Chowdhury, Deputy Attorney General, Mr. Amit Talukdar, Deputy Attorney General, Mr. Sheikh Saifuzzaman, Assistant Attorney General, Mr. Bashir Ahmed, Assistant Attorney General, Ms. Mahfuza Begum, Assistant Attorney General, instructed by Mr. Haridas Paul, Advocate-on-Record. For the Respondents: Mr. Manzill Murshid, Advocate, instructed by Mr. M. Ashrafuzzaman Khan, Advocate-on-Record. As Amici: Mr. T.H. Khan, Senior Advocate, Dr. Kamal Hossain, Senior Advocate, Mr. Abdul Wadud Bhuiyan, Senior Advocate, Mr. M. Amirul Islam, Senior Advocate, Mr.Rokanuddin Mahmud, Senior Advocate, Mr. Ajmalul Hossain, Senior Advocate, Mr. A. J. Mohammad Ali, Senior Advocate, Mr. A.F. Hassan Ariff, 2 Senior Advocate, Mr. M.I.Farooqui, Senior Advocate, Mr. Fida M. Kamal, Senior Advocate. Date of hearing: 8th, 9th , 21st, 22nd, 23rd, 24th, 25th, 28th, 29th, 30th May, 2017 and 1st June, 2017. Date of Judgment: 3rd July, 2017. J U D G M E N T Surendra Kumar Sinha, CJ: “We have upon us the whole armour of the Constitution and walk henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration.” The eloquent words quoted above were expressed by Justice Vivian Bose in a speech in 1954. He was one of the Justices, who for the first time took oath and assumed office in the Supreme Court of India on 26th January, 1950. The ‘flaming sword’ that Justice Bose contemplated is in article 142 of Indian constitution for “Enforcement of decrees, order of Supreme Court and orders as to discovery etc.” corresponding to article 104 of our constitution which reads as under: “The Appellate Division shall have power to issue such directions, orders, decrees or 3 writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.” It empowers this court in exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. No other court has this power. It has conferred the power deliberately on this highest court of the country to stress that obviously the fountain of justice under the constitution is the apex court and on some rare occasions when any enacted law diverts the true course of justice, power is vested in this court and this court alone, to make such orders as are necessary in the interest of justice. This is what the Founders of our constitution intended. This is the trust reposed by the Founding Fathers upon the highest court of the nation. 4 Similar views have been expressed by a sitting Justice of the Supreme Court of the United States, Justice Stephen Breyer, in his book, ‘The court and the world’ as under: ‘The Founders of our nation believed the constitution would work better if an independent group of Judges – not the President and the Congress – could decide whether the President’s action and the laws enacted by Congress would be consistent with the constitution.’ Similar consideration worked in the minds of Founders of the USA in reposing trust upon the highest court that the people expect Judges to decide matters independently. So, all the time in dispensation of justice, the Judges keep in mind the reason behind reservation of this power upon the highest court only. It is only to be exercised by the Judges of this highest court because they, above all others, were to be trusted; they could not be expected to do wrong. This is/was the faith that the constitution had on the Judges of the highest court of the country with any other group of Judges, administrators, or bureaucrats. The independence of 5 judiciary and the ‘flaming sword’ that Justice Bose contemplated, the fount of justice can be administered freely without any pressure from any corner. Before I deal with the issue, it is necessary to consider at this juncture different aspects of the constitutional law. The constitution will live only if it is alive in the hearts and minds of the people of a country. A written constitution, should be viewed as a ‘living tree’ though rooted in such factors, is also one whose branches should be allowed to grow over time through a developing common law jurisprudence of that same community’s constitutional morality. This is what observed by W.J. Waluchow, Queen’s University, Kingston, Ontario in a book called “A Common Law Theory of Judicial Review”. The author covered a broad range of disciplines-law, philosophy, political theory, constitutional theory and special interest- in his dissertation about the role of unelected Judges in a democracy- particularly the role of Supreme Court in shaping constitutional policy. The author sought to resolve the impasse over the 6 question of judicial review of written constitution. He described two groups—one group which upheld, and the other, which criticized the Canadian Charter of Rights—he called them the ‘boosters’ and the ‘bashers’. For the ‘boosters’, the rigidity of the constitution was what made it valuable; for ‘bashers’, this was one of the chief ills of a written constitution. The author makes a convincing case of how this enables an approach to constitutionalism that is both authoritative and flexible. He says that the protection of rights must be left to the traditional institutional mechanism, which is necessarily the unelected judiciary. According to Gwyer, C.J., a broad and liberal spirit should inspire those whose duty is to interpret the constitution; but this does not imply that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying omissions or of correcting supposed errors. A Federal Court will not strengthen, but only derogate from, its position; if it seeks to do 7 anything but declare the law; but it may rightly reflect that a constitution of government is a living and organic thing, which of all instruments have the greatest claim to be construed ut res magis valent quam pareat i.e. it stands for trying to construe a law in a way to make sense, rather than to void it. The law should be given effect rather than be destroyed (1939) FCR 18,36(39). The moot question that raised in this appeal that requires a clear answer from this court is whether the Constitution (Sixteenth Amendment) Act, 2014 has violated the basic structure of the constitution. It is indeed the crux of this appeal. Apparently, this question may look very harmless and straightforward, but in fact it is not that simple issue to answer. Rather the answer to this question involves some immensely complex and unfathomably deep issues and events which have taken place in our political history during the last seven decades (1947 - 2016) in general and during the last four and half decade in particular (1971– 2016). If it has been a simple challenge of a constitutional amendment, it 8 would have been much easier to answer and give a verdict; but since this question has a long and chequered history, the answer should not be a short verdict containing only the core opinion of this Court. The questions that have been raised in this appeal were surfacing on many occasions in our country but due to uncertainty and instability in our national life, no definitive answers have been given yet. The question which involves one of the fundamental debates common to any democratic polity is: if the removal mechanism of the Judges of the Supreme Court is given upon the Parliament, whether, the independence of the Judiciary will be affected and/or hampered. The first ever modern democracy in the history, the U.S. also went through this similar debate and it took hundreds of years to refine a sound politico-judicial culture which gives stability in exercise of state power. Even after 220 years of the foundation of their Republic, the debate is not over yet. But for the U.S., this unfinished debate does not mean incompleteness or chaos, rather every 9 time they are creatively exploring different options for more coherent, sound and harmonious ways to devise, define and redefine their democratic institutions so that their society becomes more stable and capable of delivering the pledges inscribed in their constitution. This is a creative evolution of a political community which goes ahead with the life of that community with a healthy checks and balances mechanism called trial and error. But history also has some paradoxes. Not all political communities capable of withstanding the unpredictable wave of this creative trial and error in their political life. All cannot withstand this test of time because it is not only strong economy, not only skyscrapers, not only large and long over bridges and bridges that guarantee a country for its stability and flourishment rather, most importantly it requires a “collective political wisdom”.

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