272 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (Civil) Present: Surendra Kumar Sinha, CJ Government of Bangladesh and others: Md. Abdul Wahhab Miah, J ... Appellants. Nazmun Ara Sultana, J

Syed Mahmud Hossain, J Muhammad Imman Ali, J Hasan Foez Siddique, J =VS= Mirza Hussain Haider, J th th st nd rd Date of hearing: 8 , 9 , 21 , 22 , 23 , 24th, 25th, 28th, 29th, 30th May, 2017 and 1st June, 2017. Advocate Asaduzzaman Siddiqui and others: rd Date of Judgment: 3 July, 2017. ... Respondents. Result: Dismissed 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.) ADVOCATES WHO APPEARED IN THIS CASE: 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. Munzill Murshed, 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, Senior Advocate, Mr. M.I.Farooqui, Senior Advocate, Mr. Fida M. Kamal, Senior Advocate. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 273 Constitution of Bangladesh, 1972 Articles 22, 94(4), 116A and 147 The independence of the judiciary is the foundation stone of the constitution– The independence of the judiciary is the foundation stone of the constitution and as contemplated by article 22, it is one of the fundamental principles of State policy. The significance of an independent judiciary, free from the interference of other two organs of the government as embodied in article 22 has been emphasized in articles 94(4), 116A and 147 of the constitution. There has been a historic struggle by the people of this country for independence of judiciary, to uphold the supremacy of the constitution and to protect the citizens from violation of their fundamental rights and from exercise of arbitrary power. In Anwar Hossain (supra) this court observed that “Democracy, Republican Government, Unitary State, Separation of Powers, Independence of the Judiciary, Fundamental Rights are basic structures of the Constitution” (emphasis supplied). Therefore, the constitutional principle of independence of judiciary precludes any kind of partisan exercise of power by the Parliament in relation to the judiciary, in particular, the power of the Parliament to remove the Judges of the Supreme Court. (Surendra Kumar Sinha, CJ) ...(Para-325) What is mala fides? “Mala fides or bad faith” means dishonest intention or corrupt motive in the exercise of powers or a deliberately malicious or fraudulent purpose, on the part of the decision maker. Mala fides includes those cases where the motive force behind an action is personal animosity, spite, vengeance, personal gratification or benefit to the concerned authority or its friends or relatives. (Halsbury’s Laws of India, Vol-1, P.319 and CS Rowjee V. A.P., AIR 1964 SC 962). An independent ground of attack, malafides (Malice in fact) should be distinguished from mala fides (malice in law). According to Megaw LJ, it always involves a grave charge and it must not be treated as a synonym for an honest mistake. (District Council V. Kelly, (1978) 1 All ER 152). There is malice in law where “it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Colourable exercise of power is equated with malice in law (Wadhwa V. Bihar, AIR 1979 SC 659) and in such a case, it is not necessary to establish that the respondent was actuated by a bad motive. (Venkataraman V. India, AIR 1979 SC 49). (Surendra Kumar Sinha, CJ)...(Paras-364 & 365) Constitution of Bangladesh, 1972 Article 96 Code of Conduct– We reformulate the Code of Conduct in exercise of powers under article 96 as under: Code of Conduct (1) A Judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The Law Messenger 274 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) (2) A Judge should respect and comply with the constitution and law, and should act at all times in a manner that promotes public confidence in the judiciary. (3) A Judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A Judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the Judge. (4) A Judge should be faithful to and maintain professional competence in the law, and should not be swayed by partisan interests, public clamor, or fear of criticism. (5) A Judge should be patient, dignified, respectful, and courteous to litigants, lawyers, and others with whom the Judge deals in an official capacity, and should require similar conduct of those officers to the Judge’s control, including lawyers to the extent consistent with their role in adversarial system. (6) A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed later than six months of the date of delivery of judgment. (7) A Judge should avoid public comment on the merit of a pending or impending Court case. (8) A Judge shall disqualify himself/herself in a proceeding in which the Judge’s impartiality might reasonably be questioned. (9) A Judge shall disqualify himself/herself to hear a matter/cause where he served as lawyer in the matter in controversy, or with whom the Judge previously practiced during such association as a lawyer concerning the matter, or the Judge or such lawyer has been a material witness. (10) A Judge shall not hear any matter if he/her knows or if he/she is aware or if it is brought into his/her notice that, individually or as a fiduciary, the Judge or the Judge’s spouse or children have a financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that could be affected substantially. (11) A Judge requires a degree of detachment and objectivity in judicial dispensation and he is duty bound by the oath of office. (12) A Judge should practise a degree of aloofness consistent with the dignity of his office. (13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (14) A Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of his office and the public esteem in which that office is held. (15) A Judge should not engage in any political activities, whatsoever in the country and abroad. (16) A Judge shall disclose his assets and liabilities, if asked for, by the Chief Justice. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 275 (17) Justice must not only be done but it must also be seen to be done. The behaviour and conduct of a member of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided. (18) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed. (19) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him. (20) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. (21) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. (22) A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media. (23) A Judge shall disqualify himself or herself from participating in any proceedings in which the Judge is unable to decide the matter impartially or in which it may appear to a prudent man that the Judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where the Judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings. (24) A Judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. (25) The behavior and conduct of a Judge must reaffirm the people’s faith in the integrity of the judiciary. (26) A Judge shall avoid impropriety and the appearance of impropriety in all of the Judge’s activities. (27) As a subject of constant public scrutiny, a Judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizens and should do so freely and willingly. (28) A Judge shall, in his/her personal relationship with individual members of the legal profession who practice regularly in the Judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. (29) A Judge shall not participate in the determination of a case in which any member of the Judge’s family represents a litigant or is associated in any manner with the case. (30) A Judge shall not allow the use of the Judge’s residence by a member of the legal profession to receive clients or other members of the legal profession. The Law Messenger 276 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) (31) A Judge shall not allow his/her family to maintain social or other relationship improperly to influence any judicial matter pending in his/her court. (32) A Judge shall not use or lend the prestige of the judicial office to advance the private interests of the Judge, a member of the Judge’s family or of anyone else, nor shall a Judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the Judge in the performance of judicial duties. (33) A Judge shall not practice law or maintain law chamber while he is holding judicial office. (34) A Judge and members of the Judge’s family, shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by the Judge in connection with the performance of judicial duties. (35) A Judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the Judge deals in an official capacity. The Judge shall require similar conduct from legal representatives, court staff and others subject to the Judge’s influence, direction or control. (36) A Judge shall not engage in conduct incompatible with the diligent discharge of judicial duties. (37) A Judge shall sit in and rise from the court in time without fail and in case the Chief Justice notices that a Judge does not utilize the time allocated for judicial works, the Chief Justice shall intimate the Judge by writing to maintain the court’s time and despite such notice if the Judge does not rectify, such conduct be treated as misconduct and he/she will be dealt with in accordance with law. (38) (a) If a complaint is received by the Chief Justice from anybody or any other sources that the conduct of a Judge is unbecoming of a Judge, that is to say, the Judge is unable to perform his/her judicial works due to incapacity or misbehaviour, the Chief Justice shall hold an inquiry into such activities with other next two senior most Judges of the Appellate Division and if the Chief Justice or any one of the other Judges declines to hold a preliminary inquiry or if the allegation is against any one of them, the Judge who is next in seniority to them shall act as such member and if upon such inquiry it found that there is prima-facie substance in the allegation the Chief Justice shall recommend to the president. (b) A complaint against a Judge shall be processed expeditiously and fairly and the Judge shall have the opportunity to comment on the complaint by writing at the initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the Judge. (c) All disciplinary action shall be based on established standards of judicial conduct. (39) The above Code of Conduct and the ethical values to be followed by a Judge, failing which, it shall be considered as gross misconduct. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 277 The decisions of the apex court of the country are final not because they are infallible, but because the decisions are infallible as they are constitutionally final. By the impugned amendment, the removal mechanism of the Judges of higher judiciary by the Supreme Judicial Council has been substituted by the Parliamentary removal mechanism. Since this amendment in ultra vires the constitution, the provision prevailing before substitution is restored. The appeal is accordingly dismissed. (Surendra Kumar Sinha, CJ) ...(Paras- 382 & 383) Constitution of Bangladesh, 1972 Article 96 Supreme Judicial Council– The Supreme Judicial Council now a part of our Constitution is the safety valve against the executive onslaughts and it shall save the Judges of the Supreme Court from the onslaughts of the executive and this safety valve cannot be allowed to be fused by any logic and under any circumstances, but that is what has actually been done by Sixteenth Amendment, so the High Court Division very rightly struck down the same. At the same time, I strongly feel that steps need be taken to make the Supreme Judicial Council more effective. Before martial law dispensation, original article 96 was no more in the Constitution and, in fact, in Fifteenth Amendment, article 96 with the Supreme Judicial Council was retained and thus it became a part of the Constitution and thereby article 96 with the Supreme Judicial Council no more bore the stigma of the Martial Law Proclamation. In the written argument, the learned Attorney General took a plea that since by Fourth Amendment, presidential form of Government was introduced in place of parliamentary form of Government, so the power to impeach the Judges of the Supreme Court was taken away from Parliament and it was vested in the President. The argument of the learned Attorney General is absolutely based on total non-consideration of the provisions of the various articles of the Constitution in Chapter I, Part V of the Constitution which have been quoted hereinbefore. I have checked up the articles in that chapter of Part V. I found no change in the provisions as to the composition and power of Parliament. It remained the same when Fourth Amendment was passed and even today it is the same as it stood on 04.11.1972. The only change made from time to time was in sub-article (3) of article 65 as to the number of nominated women members. Parliament is Parliament and its members are elected representatives of the people whatever may be form of the Government, parliamentary or presidential. I failed to understand how the learned Attorney General could make the distinction between the members of Parliament under the presidential form of Government and members of Parliament under parliamentary form of Government. The only distinction between the two forms of Government is that in the presidential form of Government, the President is the chief executive and in the parliamentary form of Government, the Prime Minister is the chief executive. The powers and functions of Parliament under both the forms of Government are the same and similar. In the context, it is very very pertinent to state that though the provisions of the impeachment of a Judge of the Supreme Court by Parliament was in the Constitution from Fourth November, 1972 upto 25th January, 1975, i.e. upto Fourth Amendment, no law was enacted pursuant to sub-article (3) of original article 96 and therefore, article 96 as it stood then never became effective and it just remained in the Constitution. (Md. Abdul Wahhab Miah, J) ...(Paras-471 & 455) The Law Messenger 278 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Constitution of Bangladesh, 1972 Article 147 The removal of Judges being part and parcel of their terms of service, the amendment is in violation of article 147 of the Constitution. (Muhammad Imman Ali, J) ...(Para-597) Constitution of Bangladesh, 1972 Article 102(2) and 103 A Judge will dispense justice in accordance with law by treating everybody equal– A Judge is also oath bound to “do right to all manner of people according to law, without fear or favour, affection or ill-will”; this means that a Judge will dispense justice in accordance with law by treating everybody equal, be it poor or rich, powerful or powerless so ever and irrespective of caste and creed, religion and belief without fear or favour or ill-will and when a Judge of the High Court Division disposes a matter sitting in any jurisdiction, either constitutional or civil or criminal or company matter or any other jurisdiction, he gives reasons in support of his decision keeping in view the provisions of law in the context of the given facts and circumstances of a particular case. Any one who feels aggrieved by the decision and/or the order or the decree of a Judge of the High Court Division, can approach this Division under article 103 of the Constitution and in this way, a judgment and order or order or a judgment and decree of a Judge or Judges of the High Court Division as the case may be, is under scrutiny by this Division. (Md. Abdul Wahhab Miah, J) ...(Para-445) Constitution of Bangladesh, 1972 Article 102, 103 and 105 The Supreme Court has been given the power of judicial review to see that Parliament does not overstep the limits set by the Constitution– Under our constitutional dispensation, it is the Constitution, and not Parliament, which is supreme. Parliament’s legislative power is subject to the provisions of the Constitution and any law to the extent of inconsistency with the provisions of the Constitution is void. The Supreme Court has been given the power of judicial review to see that Parliament does not overstep the limits set by the Constitution. In our Constitution executive and legislative powers are expressly vested but the vesting of such power in judicature is absent. Vesting is a necessary decisive factor, where judicial powers have been in the hands of the judicature since before the birth of our Constitution. (Syed Mahmud Hossain, J) ...(Paras-497 & 483) Constitution of Bangladesh, 1972 Article 102(2) The writ petitioners have challenged the vires of an Act of Parliament, that is to say, an amendment to the constitution which has been effective by Gazette Notification dated 22nd The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 279 September, 2014 and secondly, this amendment has become a part of the constitution and the same cannot be judged by the touchstone of an ordinary legislation. This Judges removal mechanism was made by substituting the old provision. In section 2 of the Act it is said, ‘In the Constitution, in article 96, for clauses (2), (3), (4), (5), (6), (7) and (8), the following clauses (2) (3), and (4) shall be substituted.’ As per law if a substituted provision is declared void or repealed, the former provision shall be effective immediately. This court in Ful Chand Das V. Mohammad Hamad, 34 DLR (AD) 361 held that when a provision of law repealed by a statutory provision which is declared ultra vires the constitution, the former provision is automatically revived on such declaration. If the amended statute is wholly void, the statute sought to be amended is not affected but remains in force. Where the law was amended but subsequently the amendment was repealed, the amendment has to be completely ignored and the provisions of the law as they stood prior to amendment are to be taken into consideration. (Mir Laik Ali V. Standard Vacuum Oil Co., 16 DLR (SC) 287. In Ram Dayal V. Shankar Lal, AIR 1951, Hyd 140(FB), it was held that when an Act passed repeals another in whole or in part and substitutes some provision in lieu of the provision repealed, the repealed enactment remains in force until the substituted provision comes into operation. (Surendra Kumar Sinha, CJ) ...(Paras-367 & 369) Constitution of Bangladesh, 1972 Article 7 Article 7 ensures the supremacy of the constitution. It may be reiterated that the Supreme Court is not only an independent organ of the State, but it also acts as the guardian of the constitution. It is the Supreme Court that ensures that any law that which is inconsistent with the constitution will be declared void in exercise of the judicial review by reference to articles 7(2) and 26. (Surendra Kumar Sinha, CJ) ...(Para-350) Constitution of Bangladesh, 1972 Article 109 and 116 This amendment is in direct conflict with article 109, which provides that the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. If the High Court Division has superintendence and control over the lower judiciary, how it shall control the officers performing judicial works if the Executive controls the posting, promotion and discipline, disciplinary action is not clear to me. (Surendra Kumar Sinha, CJ) ...(Para-353) Constitution of Bangladesh, 1972 Article 96 and 142 It is interesting to note that article 96(1), which relates to the age of retirement of judges of the Supreme Court, was amended on 11.11.1986 (when the country was not under democratic government) changing the retiring age from 62 years under the 1972 Constitution to 65 years. On 17.05.2004, article 96(1) was again amended changing the age of retirement of Supreme Court Judges from 65 to 67 years, this time by a democratically elected government. The Fifteenth The Law Messenger 280 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Amendment of 2011 gave a seal of approval to article 96(1) of the Constitution of 2004 as well as the Supreme Judicial Council. If we are to accept the argument of the learned Attorney General about return to the 1972 Constitution, then we have to question why article 96(1) should not also revert to the 1972 Constitution, and why he is not advocating for that also. (Muhammad Imman Ali, J) ...(Para-570) Constitution of Bangladesh, 1972 Article 142 The power to amend the Constitution is different from the power to amend ordinary law. The distinction between the legislative power and the constituent power is vital in a rigid Constitution. When Parliament is engaged in the amending process it is not legislative, it is exercising a particular power bestowed upon it sui generis by the amending clause in the Constitution. (Hasan Foez Siddique, J) ...(Para-686) Constitution of Bangladesh, 1972 Article 96 The Sixteenth Amendment impairs the independence of the judiciary by making the judiciary vulnerable to a process of impeachment by the legislature which would be influenced by political influence and pressure. (Syed Mahmud Hossain, J) ...(Para-520) Constitution of Bangladesh, 1972 Part IV, V and VI Independence of judiciary cannot be obtained unless the judiciary is completely separated from other two organs, otherwise the Judges, appointed under the constitution, will not mentally feel that they are free in discharging their constitutional duties. (Mirza Hussain Haider, J) ...(Para-736) CASES REFERRED- 01. Marbury V. Madison, 5 US (1 Cranch) 137 08. Golak Nath V. State of Punjab, AIR 1967 SC (1803) ..(Paras-23, 76) 1643 ..( Para-83) 02. H.M. Seervai – Constitutional Law of India, 09. Kesavananda Bharati V. State of Kerala, AIR Vol-1 P-9...(Para-28) 1973 SC 1461 ..(Para-84) 03. Asma Jilani V. Government of Punjab, PLD 10. R. v. Brislan; p. (1935) 54C.L.R. 262 ..(Para- 1972 SC 139… (Para-29) 91) 04. Khatri V. State of Bihar, (1981) 3 SCR 145… 11. Trav-Cochin V. Bombay Co. Ltd., 1952(SCR) 1112 ..(Para-93) (Para-54) 12. (1880) 14 Ch. W. 458; Tariq Transport 05. Anwar Hossain Chowdhury V. Bangladesh, 34 Company V. Sargotha Bhera Bus Service, 11 DLR DLR(AD)1 ..(Para-66) (SC) 140; Mian Fazl Din V. Lahore Improvement 06. A.K. Kaul V. Union of India, (1995) 4 SCC 73 Trust, 21 DLR (SC) 225; Legal Control of ...( Para-80) Government by Schwartz and Wade, page 291; R.V. 07. Shankari Prashad V. Union of India, Metropolitan Police Commissioner (1968) 1 All ER AIR 1951 SC 458 ..(Para-82) 763; Blackburn V. Attorney General (1971) 2 All The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 281 ER 1380; R.V. Metropolitan Police Commissioner 27. Anwar Hussain Chowdhury, V. Bangladesh, (1973) All ER 324 ..(Para-95) 1989 BLD (spl)1 ..( Para-249) 13. Mumbai Kamgar Sava V. Aledulbhai, AIR 1976 28. Benazir Bhutto v. Federation of Pakistan PLD S.C. 1455; S.P. Gupta V. President of India, AIR 1988 SC 416; Al-Jehad Trust v. Federation of 1982 S.C. 149; Kazi Moklesure Rahman V. Pakistan PLD 1996 SC 324 ..( Para-250) Bangladesh, 26 DLR (AD) 44; Dr. Mohiuddin 29. Secretary, Parliament V. Khondker Delwar Farooque V. Bangladesh, 49 DLR (AD) 1; Ekushey Hossain, 1999 BLD(AD)276..( Para-258) Television V. Dr. Chowdhury Mahmud Hasan, 54 30. Jagjit Singh V. Haryana, (2006) 11 SCC 1..( DLR (AD) 130; Anwar Hossain Chowdhury V. Para-260) Bangladesh, BLD (spl) 1; M. Saleemullah V. 31. Masder Hossain, 52 DLR(AD) 82..( Para-275) Bangladesh, 2005 BLD 195 ..(Para-96) 32. Walter Valente v. The Queen, 1985 SCR 673..( 14. Professor Thio’s book on locus standi and Para-289) judicial review (1982) ASC, P-189 ..(Para-102) 33. Supreme Court Advocates-on-Record B. Union 15. S.P. Gupta V. India, AIR 1982 S.C 149; of India, (1993) 4 SCC 441..( Para-326) S.P.Gupta V. Union of India, 1981 supp SCC 87 at 34. N. Kannadasan V. Ajoy Khose, (2009) 7 SCC P.210 ..(Para-103) 1..( Para-327) 16. Sheela Varsi V. Union of India, (1988) 4 SCC 35. Col. A.S. Sangwan V. Union of India, 1980 266 and SP Anand V. HD Debugoura, (1996) 6 Supp SCC 559..( Para-331) SCC 734 ..(Para-105) 36. Richardson V. Mellish, (1824) 2 Bing 229 17. R.C. Memorial Lecture (1997) 7 SCC 1 ..(Para- (252);Cave, J. in Re Mirami, (1891) 1 QB 594 (595) 106) ..( Para-336) 18. Dr. Upendra Baxi V. State of U.P. (1986) 4 SCC 37. M. Nagaraj V. Union of India, (2006) 8 SCC 106 ..(Para-107) 212), Kesabananda (supra), Bangladesh V. Idrisur 19. Asma Jilani V. The Government of Punjab, PLD Rahman, 15 BLC (AD) 49, Anowar Hossain 1972 SC 139 ; The Attorney General of the Republic Chowdhury (supra). In Indira Nehru Gandhi v. Raj V. Mustafa Ibrahim, 1964 CLR 195 ..( Para-134) Narain, AIR 1975 SC 2299..( Para-339) 20. United States V. Burr, June 13, 1807, J.M. 38. Minerva Mill Ltd. V. Union of India, (1980) 3 Papers, 7:37-50 ..( Para-146) SCC 625; 1975 Supp SCC 1..( Para-346) 21. Abdul Mannan Khan V. Bangladesh, 64 DLR 39. Punjab V. Gurdial Singh, AIR 1980 SC 319). (AD) 169 ..( Para-189) ;Abdul Rob V. Abdul Hamid, 17 22. Supreme Court Advocates-on-Record V. Union DLR(SC)515;(Halsbury’s Laws of India, Vol-1, of India, (2016) 5 SCC 1 ..( Para-195) P.319 and CS Rowjee V. A.P., AIR 1964 SC 962..( 23. Justice Paul Cosgrove V. Attorney General, Para-364) Ontario, 2005 FC 1454 ..( Para-215) 40. District Council V. Kelly, (1978) 1 All ER 152; 24. Administrative Justice (1992) 18 A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Commonwealth Law Bulletin 1326 ..( Para-229) ;Wadhwa V. Bihar, AIR 1979 SC 659; 25. Huddarl, Paker & Co Pty Ltd V. Moorhead Venkataraman V. India, AIR 1979 SC 49..( Para- (1909) 8 CLR 330 at 357 ..( Para-246) 365) 26. People’s Union for Civil liberties v. Union 41. Dr. Nurul Islam V. Bangladesh (33 of India (2003) 4 SCC 399, (Para 34); Cauvery DLR(AD)201..( Para-366) Water Disputes Tribunal (1993) Suppl (1) SCC 42. Ful Chand Das V. Mohammad Hamad, 34 DLR 96(2), and in Municipal Corn. Of City of (AD) 361 ;Mir Laik Ali V. Standard Vacuum Oil Ahmedabad v. New Shrook Spg. and Wvg Co. Co., 16 DLR (SC) 287. In Ram Dayal V. Shankar Ltd. (1970), 2 SCC 280 ..( Para-247) Lal, AIR 1951, Hyd 140(FB)..( Para-369) The Law Messenger 282 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 43. Bed ford Quarries V. Bough, (1907) 168 Ind. 58. Advocate-on-Record Association V. Union of 671, 80 N.E.539;Carr V. State, (1819) 127 Ind. 204, India (1993) 4 SCC 441 ..( Para-439) 26 N.E. 778..( Para-370) 59. Sub-Committee on Judicial Accountability-vs- 44. Igoe V. State (1860) 14 Ind 289..( Para-371) Union of India (1991) 4SCC699 ..( Para-449) 45. Chicago, Indianapolis V. Hackett, (1912) 227 60. people’s Union for Civil Liberties Vs Union of U.S. 559..( Para-372) India (2003) 4SCC 399 ..( Para-451) 46. Luther v. Borden, 7 How.1; Mississipi v. 61. Cauvery Water Disputes Tribunal (1993 Johnson, 4 Wall, 475..( Para-374) Suppl(1) SCC 96 (2) and Municipal Corpn of City 47. Saghir Ahmed V. UP, AIR 1954 SC 728)..( of Ahamedabad Vs New Shrook Spg. And Wvg Co Para-375) Ltd (1970, 2 SCC 280) ..( Para-452) 48. Khandker Zillur Bari V. State, 17 BLT (AD) 28, 62. N. Kannadasan Vs Ajoy Khose and others Shahana Hossain V. Asaduzzaman, 47 DLR (AD) (2009) 7SCC 1 ..( Para-668) 155, B.C. Chaturvedi V. India (1995) 6 SCC 749, 63. Hinds vs. The Queen (1976)1 ALL ER 353 ..( Ashok Kumar Gupta V. State of U.P. (1997) 5 SCC Para-485) 201. ..( Para-376) 64. Mujibur Rahman vs. Bangladesh, 44 DLR (AD) 49. Karnataka V. Andhra Pradesh (2000) 9 SCC 111 ..( Para-486) 572, Nilabati Behera V. Orissa AIR 1993 S.C. 1960.) ;Raziul Hasan V. Badiuzzaman, 1996 BLD 65. Jamil Huq vs. Bangladesh,34 DLR (AD) 125 ..( (AD) 253; Abdul Malek V. Abdus Sobhan, 61 DLR Para-487) (AD) 124.) ;Bangladesh V. Shamirunnessa, 2005 66. LRs Vs. State of Tamil Nadu & others, 2007 AIR BLD (AD) 225..( Para-377) (SC)861; at para-64 ..( Para-489) 50. National Board of Revenue V. Nasrin Banu, 48 67. the State vs. Zia-ur-Rahman and others [PLD DLR (AD) 171, Naziruddin V. Hamida Banu, 45 1973 SC 49] ..( Para-493) DLR (AD) 38.) ;State of Karnataka V. 68. R vs. Transport Secretary. Ex p. Factortame Vishwabharathi House Building co-op society, Ltd.[1990] 2 AC 85 ..( Para-497) (2003) 2 SCC 412...(378) 69. Anwar Hossain Chowdhury etc. v. Bangladesh 51. R. Registrar General, ex P Smith (1991) 2 All and others, BLD 1989(SPL)1 ..( Para-498) ER 88 ..( Para-380) 70. Secretary, Ministry of Finance v. Md. Masdar 52. Md. Idrisur Rahman V. Government of Hossain and others, reported in 2000 BLD(AD) Bangladesh, 13 ADC 220..( Para-381) 104, Walter Valente vs. The Queen,[1985] 2 53. Anwar Hossain Chowdhury-Vs-Bangladesh and S.C.R.673 ..( Para-501) others (Special Issue) 1989 BLD, 71. S.P. Gupta and others v. President of India and 1=41DLR(AD)165..( Para-391) others, 1982 AIR (SC) 149 ..( Para-502) 54. Secretary, Ministery of Finance Vs Mr. Md. 72. N. Kannadasan V. Ajoy Khose reported in Masder Hossain, 52 DLR(AD) 82; Walter Valente (2009) 7 SCC 1; M. Nagaraj V. Union of India Vs Her Majesty the Queen (1985) 2 RCS 673 ..( Para-400) reported in (2006) 8 SCC 212; M. Nagaraj V. Union of India (SCC P.238, Para-9) ..( Para-503) 55. Secretary, Ministry of Justice and Parliamentary Affairs and others versus Md. Idrisur 73. Bangladesh Italian Marble Works Ltd. v. Rahman, Advocate and others) 17 BLT(AD) 231; Government of Bangladesh and others, 62 DLR S.P. Gupta and others v. President of India and (HCD) (2010) 70, Khondker Delwar Hossain, others A.I.R.1982 at page 152..( Para-402) Secretary, BNP and another v. Bangladesh Italian 56. M. Nagaraj-Vs- Union of Indian (2006) 8 SCC Marble Works and others reported in 62 DLR (AD) 212 ..( Para-412) (2010)298 ..( Para-515) 57. N. Kannadasan-V-Ajoy Ghose 74. Khondker Delwar Hossain, Secretary, BNP and (2009) 7 SCC 1 ..( Para-413) another v. Bangladesh Italian Marble Works and The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 283 others reported in 62 DLR (AD)(2010)298 in para 87. Abdul Mannan Khan Vs. Government of 232 ..( Para-516) Bangladesh and others, popularly known as 13th 75. (Khondker Delwar Hossain, Secretary, BNP and Amendment case (20 BLT special issue); Minerva another v. Bangladesh Italian Marble Works and Mills Ltd. V. Union of India, AIR 1980 S.C. 1789 ; others, 62 DLR(AD)(2010)298 in para 200 ..( Para- Anwar Hossain Chowdhury Vs. Bangladesh, [1989 518) BLD (special)]; Kuldip Nayar V. Union of India, 76. Anwar Hossain Chowdhury etc. v. Bangladesh AIR 2006, 3127 ..( Para-632) and others, BLD 1989 (SP1)1 ..( Para-519) 88. Shamsul Huda and others Vs. Government XVII 77. Sub-Committee of Judicial Accountability vs. BLT (AD)62) ..( Para-663) Union of India (1991) 4 SCC 699 ..( Para-522) 78. Edinburgh & Dalkeith Railway Co. V Wauchope 89. Darwesh Arbey V. Federation of Pakistan (1842) 8 CI & F 710 ..( Para-537) (1980 PLD Lahore 203); Suleman V. President 79. Khondker Delwar Hossain, Secretary, BNP Special Military Court (NLR 1980 Quetta 873), Al- Party & Ors v. Bangladesh Italian Marble Works Jahed Trust V. Federation of Pakistan (1996 PLD Ltd. &Ors. 2010 BLD (Spl) 2 ..( Para-538) SC 367) ..( Para-683) 80. Shahriar Rashid Khan v. Bangladesh reported 90. Kudrat-E- Ehali Panir V. Bangladesh 44 DLR in 1998 BLD (AD) 155, para 54 ..( Para-546) (AD)319; Secretary, Ministry of Finance V. Masder 81. Anwar Hossain v. Bangladesh 1989 BLD (Spl.)1 Hossain reported in 52 DLR (AD)82 ..( Para-709) ..( Para-547) 91. Siddique Ahmed V. Govt. of Bangladesh 33 BLD 82. Secretary, Ministry of Finance v. Masdar (AD) 129). Similarly, D.C. Bhattacharajya, J. in Hossain 2000 BLD (AD) 104; Walter Valente v. Md. Shoaib V. Government of Bangladesh (27 DLR Queen [1985] 2 SCR 673 ..( Para-595) 315) ..( Para-720) 83. Carew and Co. Ltd. V. Union of India (1975) 2 92. Khondker Delwar Hossain and others Vs. SCC 791; Panama Refining Co. Vs. Rayan 79 LED Bangladesh Italian Marbel works Ltd. and others 446 ..( Para-605) (2010 BLD (Spl)2=62 DLR(AD)298) ..( Para-737) 84. Bangladesh Italian Marble Works Ltd. and others Vs. Government of Bangladesh and others 93. Water Valente Vs. Her Majesty the Queen (reported in 2010 BLD (Spl.) issue) ..( Para-613) (1985) 2 R.C.S. 673..( Para-744) 85. Khondker Delwar Hossain, Secretary, B.N.P. 94. Supreme Court Advocates-on-Record Vs. Bangladesh Italian Marble Works Ltd. (2010 Association Vs. Union of India, (1993)(4)SCC 441..( BLD(Spl) issue) ..( Para-614) Para-757) 86. Bangladesh Italian Marble Works 95. Sub-committee of Judicial Ltd. V. Government of Bangladesh and Accountability Vs. Union of India, reported others (2010 BLD spl) ..( Para-621) in (1991) 4 SCC 699 ..( Para-760)

JUDGMENT SURENDRA KUMAR SINHA, CJ: 02. The eloquent words quoted above were 01. “We have upon us the whole armour of expressed by Justice Vivian Bose in a speech in the Constitution and walk henceforth in its 1954. He was one of the Justices, who for the enlightened ways, wearing the breast plate of first time took oath and assumed office in the its protecting provisions and flashing the Supreme Court of India on 26th January, 1950. flaming sword of its inspiration.” The ‘flaming sword’ that Justice Bose The Law Messenger 284 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) contemplated is in article 142 of Indian reposing trust upon the highest court that the constitution for “Enforcement of decrees, order people expect Judges to decide matters of Supreme Court and orders as to discovery independently. So, all the time in dispensation etc.” corresponding to article 104 of our of justice, the Judges keep in mind the reason constitution which reads as under: behind reservation of this power upon the highest court only. It is only to be exercised by “The Appellate Division shall have the Judges of this highest court because they, power to issue such directions, orders, above all others, were to be trusted; they could decrees or writs as may be necessary for not be expected to do wrong. This is/was the doing complete justice in any cause or faith that the constitution had on the Judges of matter pending before it, including orders the highest court of the country with any other for the purpose of securing the group of Judges, administrators, or bureaucrats. attendance of any person or the discovery The independence of judiciary and the ‘flaming or production of any document.” sword’ that Justice Bose contemplated, the 03. It empowers this court in exercise of its fount of justice can be administered freely jurisdiction to pass such decree or make such without any pressure from any corner. Before I order as is necessary for doing complete justice deal with the issue, it is necessary to consider in any cause or matter pending before it. No at this juncture different aspects of the other court has this power. It has conferred the constitutional law. power deliberately on this highest court of the 05. The constitution will live only if it is country to stress that obviously the fountain of alive in the hearts and minds of the people of a justice under the constitution is the apex court country. A written constitution, should be and on some rare occasions when any enacted viewed as a ‘living tree’ though rooted in such law diverts the true course of justice, power is factors, is also one whose branches should be vested in this court and this court alone, to allowed to grow over time through a make such orders as are necessary in the developing common law jurisprudence of that interest of justice. This is what the Founders of same community’s constitutional morality. our constitution intended. This is the trust This is what observed by W.J. Waluchow, reposed by the Founding Fathers upon the Queen’s University, Kingston, Ontario in a highest court of the nation. book called “A Common Law Theory of 04. Similar views have been expressed by a Judicial Review”. The author covered a broad sitting Justice of the Supreme Court of the range of disciplines-law, philosophy, political United States, Justice Stephen Breyer, in his theory, constitutional theory and special book, ‘The court and the world’ as under: interest- in his dissertation about the role of unelected Judges in a democracy- particularly ‘The Founders of our nation believed the the role of Supreme Court in shaping constitution would work better if an constitutional policy. The author sought to independent group of Judges – not the resolve the impasse over the question of President and the Congress – could decide judicial review of written constitution. He whether the President’s action and the laws described two groups—one group which enacted by Congress would be consistent with upheld, and the other, which criticized the the constitution.’ Similar consideration worked Canadian Charter of Rights—he called them in the minds of our Founders of the USA in the ‘boosters’ and the ‘bashers’. For the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 285 ‘boosters’, the rigidity of the constitution was of a constitutional amendment, it would have what made it valuable; for ‘bashers’, this was been much easier to answer and give a verdict; one of the chief ills of a written constitution. but since this question has a long and The author makes a convincing case of how chequered history, the answer should not be a this enables an approach to constitutionalism short verdict containing only the core opinion that is both authoritative and flexible. He says of this Court. that the protection of rights must be left to the traditional institutional mechanism, which is 08. The questions that have been raised in necessarily the unelected judiciary. this appeal were surfacing on many occasions in our country but due to uncertainty and 06. According to Gwyer, C.J., a broad and instability in our national life, no definitive liberal spirit should inspire those whose duty is answers have been given yet. The question to interpret the constitution; but this does not which involves one of the fundamental debates imply that they are free to stretch or pervert the common to any democratic polity is: if the language of the enactment in the interests of removal mechanism of the Judges of the any legal or constitutional theory, or even for Supreme Court is given upon the Parliament, the purposes of supplying omissions or of whether, the independence of the Judiciary will correcting supposed errors. A Federal Court be affected and/or hampered. The first ever will not strengthen, but only derogate from, its modern democracy in the history, the U.S. also position; if it seeks to do anything but declare went through this similar debate and it took the law; but it may rightly reflect that a hundreds of years to refine a sound politico- constitution of government is a living and judicial culture which gives stability in exercise organic thing, which of all instruments have the of state power. Even after 220 years of the greatest claim to be construed ut res magis foundation of their Republic, the debate is not valent quam pareat i.e. it stands for trying to over yet. But for the U.S., this unfinished construe a law in a way to make sense, rather debate does not mean incompleteness or chaos, than to void it. The law should be given effect rather every time they are creatively exploring rather than be destroyed (1939) FCR 18,36(39). different options for more coherent, sound and harmonious ways to devise, define and redefine 07. The moot question that raised in this their democratic institutions so that their appeal that requires a clear answer from this society becomes more stable and capable of court is whether the Constitution (Sixteenth delivering the pledges inscribed in their Amendment) Act, 2014 has violated the basic constitution. This is a creative evolution of a structure of the constitution. It is indeed the political community which goes ahead with the crux of this appeal. Apparently, this question life of that community with a healthy checks may look very harmless and straightforward, and balances mechanism called trial and error. but in fact it is not that simple issue to answer. But history also has some paradoxes. Not all Rather the answer to this question involves political communities capable of withstanding some immensely complex and unfathomably the unpredictable wave of this creative trial and deep issues and events which have taken place error in their political life. All cannot withstand in our political history during the last seven this test of time because it is not only strong decades (1947 - 2016) in general and during economy, not only skyscrapers, not only large the last four and half decade in particular and long over bridges and bridges that (1971– 2016). If it has been a simple challenge guarantee a country for its stability and The Law Messenger 286 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) flourishment rather, most importantly it constitution has emerged. Modern constitution requires a “collective political wisdom”. is essentially a written constitution. A medieval king does not need nor does he care for a 09. Most unfortunate country in this world constitution, far less a ‘written’ constitution. is that which possesses all as have been Therefore, if we give a composite reading of mentioned earlier but does not possess “collective political wisdom”. What it means the evolution of the political history of the by ‘economic prosperity’ for a nation is a mankind for last two thousand years, we will relative notion which changes from century to see a gradual but constant development in the century but what does not ever change is the field of political science. This development, notion of wisdom on which the invisible amongst others, was about finding and devising structure of the nation is built on. I will come to instruments and ways to make the State more this point of “collective political wisdom” in stable and flourishing. later part of this judgment. 12. And lastly people have devised the idea 10. Unfortunately, in history often time of having a written constitution. We should ask comes when even the most senior, most veteran ourselves a very plain question— why our and most respected people of the society need Forefathers departed from the stage of not reminding of some very basic and obvious facts having a constitution to having a ‘written’ which form the very ground or foundation of constitution? The irresistible and obvious their existence. With all of my humility, may I answer to this question is our Forefathers give a kind reminder to many of my fellow wanted to establish a State where exercise of citizens, especially who are in very high and all powers and authority are clearly stated in a responsible position of the Republic, about a sacred inviolable document and whoever very simple fact that: Bangladesh has a exercises whatever powers in the State must ‘written’ constitution. I have put special not exceed his limit as it is already defined in emphasis on the word ‘written’ intentionally. the constitution. This is what I call a “balanced This word signifies a quantum leap in the restriction”. Having a ‘written’ constitution is evolution of the socio-political history of the nothing but having a power to exercise, but that humankind. Before advent of the age of written power is essentially restricted in the sense that constitution, the political life of the human it is not unfettered or unlimited, and it is community was folk, rustic and truly medieval. balanced in the sense that while exercising that The most crucial difference between a power, all State organs shall not work in medieval kingdom and a modern Republic is isolation rather they will combine their efforts that in the former the king is the lawmaker and together so that maximum benefits to the lawgiver - the king is the Judge - the king also people are ensured. is in the charge of the execution. 13. Exercising power under a written 11. As opposed to that the politicians and constitution is as if working with a jigsaw political philosophers have constantly thought puzzle. This is a tiling puzzle that requires the about establishing a system where the assembly of often oddly shaped interlocking unfettered, despotic and totalitarian power of and tessellated pieces. Each piece usually has a the King can be put under a “balanced small part of a picture on it; when complete, a restriction” so that he cannot transgress the jigsaw puzzle produces a complete picture. The limit. This is how the idea of modern modern State machinery is undoubtedly The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 287 complex, the separation of power is not around, in and outside court, with the absolute, therefore, it often overlaps creating a constitution in his pocket, like the priest who is puzzling situation but through the design of the never without the Bible (or the Bhagavad Gita). constitution, this also puts things in an orderly Because, the more you read the provisions of manner so that nothing remains separated or our constitution, the more you get to know of disintegrated forever. how to apply its provisions to present-day problems.” (Before Memory Fades-Fali S. 14. Our country’s name is “People’s Nariman). Republic of Bangladesh” and this Republic has a ‘written’ constitution. The foregoing 17. In 1776, America’s Founders gathered paragraphs will help us to understand and in Philadelphia to draft the Declaration of appreciate the facts, factors and rationales that Independence, which dissolved the political have been relied upon for reaching this verdict. ties that had bound the American people to 15. It is the common contention of Mr. Great Britain. A new nation was thus born, free Mahbubey Alam, learned Attorney General and and independent, the United States of America. Mr. Murad Reza, learned Additional Attorney Eleven years later, in 1887, after American General that the procedure for removal of the Patriots had won the independence on the Judges is absolutely a policy decision which is battlefield, many of them who had met earlier the domain of the Parliament. The verdict by in Philadelphia, plus others, met there again to the High Court Division declaring Sixteenth draft a plan for governing the new nation, the Amendment ultra vires the constitution is in constitution of the United States. In 1789, after violation of the principles of the separation of the plan had been ratified, the new government powers and, is therefore, illegitimate. Both of was established. Together, the Declaration and them stress upon the point that an unelected the Constitution are America’s founding Judge is appointed by the Executive. He does documents. In the Declaration the Founders not represent the people, rather he performs his outlined their moral vision and the government judicial functions, and nothing more. They it implied. Addressing ‘a candid world’ the added that this unelected Judge took the role of Founders’ immediate aim in the Declaration a legislature in deciding the policy decision was to justify their decision to declare illegally invoking the power under article 102. independence. Toward that end, they set forth 16. All judicial review— all manner of a theory of legitimate government, then adjudication by courts— is itself an exercise in demonstrated how far British rule had strayed judicial accountability—accountability to the from that ideal. The Declaration’s seminal people who are affected by a Judge’s rulings. passage opens with perhaps the most The accountability gets evidenced in critical important line in the document. “We hold comments on judicial decisions when a Judge these Truths to be self-evident.” Grounded on behaves as he should be as a moral custodian of that reason, ‘self-evident’ truths invoke the the constitution. Judges perform their functions long tradition of natural law, which holds that — enhance the sprit of constitutionalism. They there is a higher law, of right and wrong from should realize the solemnity and importance of which to derive human law and against which the functions reposed upon them by the criticize that law at any time. (The Declaration constitution. “The ideal judge of today, if he is of Independence and the Constitution of the to be a constitutional mentor, must move United States of America). The Law Messenger 288 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 18. Once a very relevant and interesting “Supreme Law of the Land” conveys the idea debate arose as to whether America is a fully that this is one land, one country, not a league sovereign nation, or merely a confederation of of separate countries. sovereign States allied for the purposes of 21. Jefferson said, ‘We the people’ wrote common defense and foreign policy, did not the constitution, and only ‘we the people’ – that begin with the Civil War, or, for that matter, is, the legislature – had the right to interpret it. with the quixotic challenge to American unity (Cited in Beveridge, Life of John Marshall, 3: mounted by paleo-libertarians and neo- 605–606). Kentucky Republican John Confederates in more recent years, but goes Breckenridge, expanding Jefferson’s argument back to the earliest years under the constitution. to the Senate commended that constitution had As Henry Adams writes in his massive History ‘intended a separation of the power vested in of the United States of America during the the three great departments, giving to each Administrations of Thomas Jefferson, in the exclusive authority on the subjects committed period preceding the election of Jefferson in to each’. The Legislature had the exclusive 1800, Americans, particularly in the South and right to interpret the constitution as regards the New England, were convulsed over the law-making process and the Judges were bound question “whether the nature of the United to execute the laws they made. Let gentlemen States was single or multiple, whether they consider well before they insist on a power in were a nation or a league.” the judiciary which places the Legislature at their feet. (Annals, 7th Congress, 1st Session, 19. Seeing the issue stated as baldly as that, 179-180). and realizing that even back then people were 22. American Congress repealed the asserting that the United States was nothing Judiciary Act, 1801 and replaced it by a new more than a “league,” instantly would bring the Judiciary Act, 1802, which effectively reader to the opening words of the constitution: dismantled the Federal Judiciary and closed the “We the People of the United States …” “We Supreme Court for two years. The new law the People” clearly signifies that the United reset the number of circuit courts at six, States are one people, i.e., one nation. If the eliminated more than a dozen judgeships, Founding generation had thought of themselves restored the number of Supreme Court Justices as an alliance of separate nations they would to six, and forced the justices to resume ‘riding probably have described themselves as “We the the circuit’ to distant district courts. The Act People of the United States.” But they did not eliminated the summer session of the Supreme do that. Court. It would meet only two weeks, once a year instead of twice a year. By scattering the 20. The same can be said for another key justices around the country the rest of the year, phrase in the Constitution: the new law would prevent Chief Justice “This Constitution, and the Laws of the Marshall from organising his colleagues into a United States which shall be made in powerful, co-hesive third branch of Pursuance thereof; and all Treaties made, government. (John Marshall, P.196-7) or which shall be made, under the 23. Jefferson, the President of America Authority of the United States, shall be charged the Marbury verdict (Marbury V. the supreme Law of the Land; … Madison, 5 US (1 Cranch) 137 (1803) by The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 289 saying that this is a decision by an unelected time, it voided part of an Act of Congress body like Supreme Court contained ‘the germ (John Marshall – P-210). President of dissolution of our federal government’. He Jefferson claimed in Marbury ‘Nothing in the called the court ‘irresponsible... advancing its constitution has given them the right.... to noise-less step like a thief over the field of decide what laws are constitutional and what jurisdiction, until all such be usurped from the not.’ Such powers ‘would make judiciary a states’ after the judgment in Marbury. (Thomas despotic branch.’ (Thomas Jefferson to Abigail Jefferson to Charles Hammond, August 18, Adams, September 11, 1804, 12:162). 1821, Kaminski, Quotable Jefferson, 260-261). 26. In 1803, Chief Justice Marshall Thus, America’s Second President Jefferson questioned the finality of the court’s decision. speaking for the constitution of the United States said, “It is emphatically the province and 24. When Marshall returned to Washington, duty of the Judicial Department to say what the eleven of the Judges ousted by the Judiciary law is. Those who apply the rule to particular Act, 1802 asked congress for reinstatement and cases must, of necessity, expound and interpret payment of past salaries. Their dismissals, they that rule. If two laws conflict with each other, claimed, had violated their constitutional rights the Courts must decide on the operation of as Federal Judges to ‘hold their offices during each.” After Marbury, the Supreme Court good behaviour and ... receive...compensation.’ established it as supreme arbiter of the At Jefferson’s direction the Republican constitution and American laws and the Federal majority in congress rejected the demand, judiciary as the third co-equal branch of the declaring congress, not courts, sole Judge of Federal Government alongside the Executive what was and was not constitutional. ‘Let them and Legislative branches. do. If the Supreme Court shall arrogate this 27. Before the independence of India and power (claim of the Judges) to themselves and Pakistan, there were three Round Table declare our law to be unconstitutional, it will Conferences in England for the solution of then behoove us to act. Our duty is clear’. Indian Independence problem. The conferences (Annals of Congress, II: 434-436). Two weeks were followed by a White Paper which later after hearing William Marbury’s contained the proposals of the British Commission as a justice of the peace, John government for an Indian constitution. After Marshall pronounced the most important these proposals had been considered by a Joint decision in Supreme Court’s history. Select Committee, a Bill based on the Joint 25. Marshall effectively amended the Committee’s recommendations was introduced constitution by assuming the power of judicial in the British Parliament in December, 1934, review for the Supreme Court, allowing it to and after prolonged debate, it became the void an Act of Congress it deemed Government of India Act, 1935, which came unconstitutional. Nowhere in the American into force on 1st April, 1937 as a legal constitution had the Framers written ‘that a law framework for a constitution of India. For the repugnant to the constitution is void’ or given first time the Act introduced a Federal form of Supreme Court the power to void a law. In government and it conferred full provincial Marbury, the Supreme Court declared both the autonomy on the Provinces subject to certain President and Secretary of State guilty of ‘safeguards’. As a corollary to a federal violating the constitution, and, for the first constitution, the Act established a Federal The Law Messenger 290 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Court in India. Under the Act, provincial Central Government Services, those who elections were held in 1937. form 56 per cent population are not getting 5 per cent share. The East Bengal 28. On 14th August, Pakistan and on 15th people are educated but they are not August, 1947 India got independence. On 29th getting their share. Sir we do not blame August, 1947, the Indian Constituent Assembly the West Pakistan people. In fact we appointed a drafting committee which want autonomy for them also. If East presented a draft constitution in February, Pakistan gets autonomy, the West 1948. The Indian constitution came into force Pakistan people will also get autonomy. on 26th January, 1950. The other chapter about We blame the ruling junta. These formation of Constituent Assembly and the jagirdars, zaminders, these big landlords drafting of constitution were plagued by power and ruling junta of West Pakistan has struggles by military and bureaucrats. (H.M. suppressed the people’s opinion of West Seervai – Constitutional Law of India, Vol-1 P- Pakistan. They are so much suppressed, 9) they cannot cry, they cannot demand, but 29. On 16th October, 1951 Liaquat Ali the people of East Pakistan are politically Khan, the first Prime Minister of Pakistan was conscious. They challenge anybody and assassinated. “A tussle for grabbing power everybody. They challenge Mr. Fazlul among persons who held positions of Haq, Mr. Suhrawardy, Moulana advantage in the Government thereupon ensued Bhashani; they challenge their leaders. and under its weight the foundation of the State They tell their leaders “You have done started quivering’ (Asma Jilani V. Government this wrong and we will not vote for you, of Punjab, PLD 1972 SC 139). On 24th but they have been suppressed, October, 1954 Ghulam Muhammad, hand persecuted and they have been picked Governor General by a proclamation economically ruined. They have no land; dissolved Constituent Assembly and placed no shelter. But, Sir, we have nothing armed guards outside the Assembly Hall (ibid). against the people of West Pakistan, but In accordance with the opinion given by the against the ruling junta, who have Federal Court a new Constituent Assembly was entered the Constituent Assembly elected and a constitution ultimately came into through the backdoor, one who were not force on 23rd March, 1956. In the Constituent even in the District Board and have Assembly, Shiekh Mujibur Rahman, a member become Foreign Minister of Pakistan and of the Constituent Assembly, made a historic such people want to speak on behalf of speech pinpointing the discriminatory the people of East Pakistan and say that treatment exercised by the central government the people of East Bengal support this as under: draft Constitution. “Sir, I am only pointing it out to you. Sir, I have just come from East Sir, it is like this there are two hands to Pakistan and know the mind of the the body of Pakistan. One is West people there. I know that they have Pakistan and the other is East Pakistan. rejected this un-Islamic, undemocratic They are making one hand strong and the and dictorial Constitution, and it cannot other hand weak. Sir, this policy is be accepted by the people of Pakistan, wrong and will ruin the country. In the Particularly the people of East Pakistan. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 291 These people are thinking that they will disturbances broken out throughout the sit in Karachi like Mr. Pathar he will provinces of Pakistan were so serious that it never go back to East Pakistan; he is was not possible on his part to maintain law domiciled here. So these people are also and order situation in the country. Ultimately, thinking that they will earn some money he could not continue at the helm of the affairs and make a house here. They cannot go and handed over the power to Muhammad back because they are going against the Yahya Khan, as Commander-in-Chief. He took demand of full regional autonomy which oath pledging that he would be faithful to the is the demand of the people. You can kill constitution of 1962. Within a very short time us, you can jail us. Sometimes we hear of taking his oath, he again issued that our lives are in danger, but we are Proclamation on 26th March, 1969, abrogated not afraid. We have been elected by the the constitution, dissolved the National and people on the basis of 21- point Provincial Assemblies and imposed Martial Programme on the basis of regional Law throughout the country. autonomy. They can betray but we cannot.” 31. The next episode is very pathetic to the citizens of this country. Under the Legal Frame (Quoted from the written argument of Work, Muhammad Yahya Khan ultimately Attorney General) gave election which was held in December, 30. Iskander Mirza did not allow a National 1970. It was beyond imagination of the Assembly to be formed under the constitution Pakistani Rulers, Awami League headed by of 1956, assumed power and by Proclamation Shiekh Mujibur Rahman could secure a clear th dated 7 October, 1958, abrogated the majority in the National Assembly and constitution, dissolved the National and Provincial Assembly of East Pakistan. This Provincial Assemblies, imposed Martial Law election was held for the purpose of framing a throughout the country and General constitution for the entire country. Muhammad Muhammad Ayub Khan was appointed as Yahya Khan ultimately did not hand over Commander-in-Chief and Chief-Martial-Law power to the elected majority leader of the Administrator. Iskander Mirza ultimately could entire Pakistan, Shiekh Mujibur Rahman; not retain power and he was overthrown by rather he waged a war against unarmed and Muhammad Ayub Khan and the country was innocent people and committed the most put under Martial Law. Muhammad Ayub heinous genocide in the history of the modern Khan was elected as President in 1965 by world. He postponed the holding of National introducing a peculiar type of democracy, Assembly and massacred innumerable number under the name ‘Basic Democracy’. The people of helpless Bangalees that led to the declaration knew that he became the President through a of independence by Shiekh Mujibur Rahman rigged election. In 1968, he was observing his on 26th March, 1971. so called decade of development but the common citizen was not touched by it, and thus 32. The liberation struggle continued for very soon he saw his authority to govern was nine months and with the sacrifice of three being vigorously challenged. The agitation of million martyrs and honour of hundred the people, coupled with the mass upsurge of thousand mothers and sisters, we achieved our 1969, reached to such an extent and the victory on 16th December, 1971. The Law Messenger 292 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 33. In his written argument, the learned addition to a malignant political regime in Attorney General has elaborately quoted the Pakistan as stated above, that system was also speeches of Bangabandu Shiekh Mujibur extremely oppressive, there were inhuman Rahman, Father of the Nation, given on 10th economic disparity in the two wings of the April, 1972 before the Constituent Assembly of country, rampant abuse of power by the law Bangladesh - he also elaborately quoted from and order agency to silence the dissident the speeches of Dr. Kamal Hossain, Syed political voices, political prisoners were kept Nazrul Islam, M. Munsur Ali, Asaduzzaman incarcerated years after years without trials etc. Khan, A.K.M. Kamruzzaman and Taj Uddin 35. Thus, if we are to summarize the long Ahmed. After a detailed discussion, debate and and dark two and half decades of struggle elaboration on many important points by the against the Pakistani rulers— we come to an members, the constitution was adopted by the Constituent Assembly on 4th November, 1972 unavoidable conclusion that as nation, we went and it was published in the official gazette on through the toughest struggle to achieve a 14th December, 1972. constitution. In fact, throughout the Pakistani era, all our struggles were aimed at a single 34. In the preceding paragraphs, I have purpose and that purpose was to achieve a purposefully given a relatively detailed democratic constitution. The Pakistani description of the trajectory of our combined framework was unable to give this, and hence political struggle throughout the Pakistani era we “through a historic struggle for national which culminated in the establishment of a liberation, established the independent, sovereign State of Bangladesh. Very unique as sovereign People's Republic of Bangladesh”. it may sound, yet it is the historical fact that This is how I see the constitution of this nation is probably the only nation on the Bangladesh. The constitution that our Founding face of the earth who fought a most gruesome Fathers adopted in 1972 was not a spark of a battle to achieve a democratic constitution. moment— it was not an accidental India and Pakistan though born on (15th and th achievement, rather it was the result of a 14 August 1947 respectively) pursued prolonged and deep contemplation of this diagonally opposite political course to run their nation germinated over centuries. And this countries. Within less than two years India document is an excellent example of our adopted its constitution in 1949, whereas, “collective political wisdom.” Pakistan adopted its first constitution after nine years of its independence in 1956. And this 36. The history and ethos of our nine years were full of political treachery, independence and those of India, USA, South horse-trading, usurping power by the Africa and other countries of the globe are individuals sitting at the top of the political completely different. The independence of hierarchy, killing of Prime Minister, arbitrarily India, Pakistan, South Africa, Zimbabwe, Sri dissolving Constituent Assembly so on and so Lanka, Burma, Singapore, Malaysia and many forth. But this was not the end there. From other countries were achieved largely through 1947 to 1971 Pakistan adopted two negotiations. The independence of Bangladesh constitutions, two Martial Laws, a peculiar and that of United State of America (USA) political system called basic democracy and were achieved through war. So, the constitution ruled by treacherous and ruthless rulers like of each country has to be interpreted in the Iskandar Mirza, Ayub Khan, Yahya Khan. In light of her own historical background and The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 293 commitment of that struggle and sacrifices. 38. A constitution of a country is the This attitude towards interpretation is not supreme legal framework by which the State is optional rather mandatory, because our organsied and run. To comprehend about a constitution emerged with a pledge, with a constitution of a country it is necessary to keep sacred promise made to the martyrs who laid in mind, what were the objects which the down their lives for a “purpose”. While Framers of the constitution set out to achieve interpreting the constitution of Bangladesh, through this document? What were the modest first and foremost, this purpose must be kept in will to which the framers turned? What were mind and it must also guide the reasons and the pitfalls the Framers tried to avoid? rationale of the court in giving meaning to any 39. At this juncture, I want to deal with the provision of the constitution. aspects of American’s constitution. In its 37. The meaning of ‘we the people’ preamble, it is stated “We the people of the mentioned in the beginning of the preamble of United States,... do ordain and establish this the constitution of Bangladesh has a different Constitution...” These words did more than meaning than that of the same phrase that has promise popular self-governance. They also been used in the preamble of the Indian and embodied and enacted it— like the phrase “I American constitution and these constitutions do” in an exchange of wedding vows and ‘I have to be interpreted in that context. One may accept’ in a contract — the Preamble’s words pose a question as to the meaning of the term actually performed the very thing they of the constitution. Constitution may be defined described. Thus the Founders’ ‘Constitution’ as to body of rules and maxims in accordance was not merely a text but a deed-a constituting with which the power sovereignty are – ‘We the People do Ordain.’ This was the most democratic deed the world had ever seen habitually exercised. A constitution is valuable in 1780s. In a Grand Parade held on July 4, in proportion as it is suited to the 1788, in Philadelphia, Wilson delivered and circumstances, desires, and aspirations of the argued for vote on the supreme law under people, and as it contains within itself the which the people and their posterity would elements of stability, permanence, and security govern. By that date Americans had said ‘we against disorder and revolution. Ultimately it is do’ so as to guarantee that the constitution valuable only to the extent that it is recognised would go into effect. Writing as Publius in and can be enforced. Although every State may ‘The Federalist No.84, Alexander Hamilton be said in some sense to have a constitution, explained in New York that ‘here, in strictness, the term constitutional government is only the people …… retain everything (and) have applied to those whose fundamental rules or no need of particular reservations. ‘WE THE maxims not only applied to those shall be PEOPLE ….., to secure the blessings of liberty chosen or designated to whom the exercise of to ourselves and our posterity, do ordain and sovereign powers shall be confined, but also establish this Constitution…….’ Here is a impose efficient restraints on the exercise for (clear) recognition of ‘popular rights’. By the purpose of protecting individual rights and ‘popular rights’ Publius meant rights of the privileges, and shielding them against any people qua sovereign, including their right to assumption of arbitrary power. (Calhoun, revise what they had created. Following Disquisition on Government, Works, i. 11 and Virginia lead, new York used its ratification Cooly, Constitutional Limitation, 8th Edn.4) instrument to underscore its understanding of The Law Messenger 294 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) the Preamble’s principles; ‘All power is No amendment has ever back on prior voting originally vested in, and consequently derived rights or rights of equal inclusion. from, the people …… The powers of 42. Previously excluded groups have played government may be reassumed by the people whensoever it shall become necessary to their leading roles in the amendment process itself, happiness. (Jonathan Elliot’s, ed. The Debates even as amendments have promised these in the several state conventions on the adoption groups additional political rights. Black voters, of the Federal Constitution (1888)). already enfranchised in many States, propelled the Federal Fifteenth Amendment forward; 40. These assorted speeches, essays, and women voters helped birth the Nineteenth; and ratification texts emphasizing the ‘popular the poor and the young spearheaded rights’ that ‘the people’ ‘retain’ and ‘reserve’ movements to secure their own constitutionally and may ‘resume’, and ‘resume’ exemplified protected suffrage. Through these dramatic acts what the First Congress had centrally in mind and texts of amendment, ‘We the People’ of in 1789 when it proposed certain amendments later eras have breathed new life into the as part of a general bill of rights. (The Bill of Preamble’s old prose. (America’s Constitution, Rights; Creation and Reconstruction). Akhil Reed Amar). 41. From a twenty-first-century perspective, 43. Mr. Murad Reza tried to persuade the the idea that the constitution was truly court that by judicial pronouncement in Dred established by ‘the people’ might seem a bad Scott V. Sandford blacks became citizens of the joke. What about slaves and freeborn women? United States. His submission is partially Later generations of the American people had correct, but if the American constitutional surged through the Preamble’s portal and history is looked into it was not so easy to widened its gate. Like constitution, comprehend. Nothing was in the original constitution aimed to eliminate slavery, even in amendments are not just words but deeds-flesh- the long run. No clause in the constitution and-blood struggles to redeem America’s declared that “slavery shall cease to exist by promise while making amends for some of the July 4, 1876, and Congress shall have power to sins of Founders. In both words and deeds, legislate toward this end.” Article I temporarily America’s amendments have included many of barred Congress from using its otherwise the groups initially excluded at the Founding. plenary power over immigration and In the wake of the Civil War, ‘We the people’ international trade to end the importation of abolished slavery in the Thirteenth African and Caribbean slaves. Not until 1808 Amendment, promised equal citizenship to all Congress was not permitted to stop the inflow Americans in the Fourteenth Amendment, and of slave ships; even then, Congress would be extended the vote to black men in the Fifteenth under no obligation to act. Another clause of Amendment. A half-century later, they Article I, regulating congressional guaranteed the right of women suffrage in the apportionment, gave States perverse incentives Nineteenth Amendment, and during a still later to maintain and even expand slavery. If a State civil-rights movement, they freed the federal freed its slaves and the freedmen then moved election process from poll taxes and secured away, the State might actually lose Horse seats; the vote for young adults in the Twenty-fourth conversely, if it imported or bred more slaves, and Twenty-sixth Amendments, respectively. it could increase its congressional clout. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 295 44. Article II likewise handed slave States would act via specially elected ‘Conventions’. extra seats in the Electoral College, giving the The Preamble invoked the people of ‘the South a sizable head start in presidential United States’; Article VII defined what that elections. Presidents inclined toward slavery phrase meant both before and after the act of could in turn be expected to nominate constitution. The preamble consisted of a single proslavery candidates. Article III vested all sentence; so did article VII. The conspicuous Federal Courts with judicial power of the complementarily of these two sentences United States. Article IV obliged free states to suggests that they might have been placed side send fugitive slaves back to slavery, in by side, but the Philadelphia architects contravention of background choice-of-law preferred instead to erect them at opposite ends rules and general principles of comity. That of the grand edifice so that both the documents’ article also imposed no immediate or long-run front portal and rear portico would project the constitutional restrictions on slaveholding in message of popular sovereignty, American Federal territory. Article V gave the style.(Ibid) international slave trade temporary immunity 47. The preamble promised Americans from constitutional amendment, in seeming more direct democratic participation in violation of the people’s inalienable right to ordaining their supreme law than anyone had amend at any time, and came close to handing ever seen on a continental scale. Echoing the slave States an absolute veto over all future Preamble’s invocation of ‘the People’, article I constitutional modifications under that article. promised something similar for ordinary law 45. In the near term, such compromises making. The House of Representatives would made possible a continental union of North and be elected biennially ‘by the People of the South that provided bountiful benefits to several States’. By 1787 American judiciary freeborn Americans. But in the long run, the had began to rise in repute. The constitution Founders’ failure to put slavery on a path of guaranteed the President’s rights to hire and ultimate extinction would lead to massive fire his cabinet subordinates but failed to military conflict on American soil-the very sort guarantee any Supreme Court role in the of conflict whose avoidance was literally the appointment or removal of lower court Judges. primary purpose of the constitution of 1788. While each congressional house could cleanse (America’s Constitution, ibid) itself by expelling members who misbehaved, neither the Supreme Court nor the judiciary as 46. “We the People of the united States ….” a whole enjoyed comparable inherent power to United how? When? Few questions have cast a clean the judicial house. (Raoul Berger, longer shadow across American history. Impeachment; the Constitutional Problems, Jefferson Davis had one set of answers, (1974), 127-34).) Abraham Lincoln had another. And the war came. “The Preamble began the proposed 48. Congress could impeach and remove constitution; article VII ended it. The Preamble Judges, yet Judges lacked counterbalancing said that Americans would ‘establish this authority to oust congressmen. In all these constitution’; article VII said how the people ways, implicating the essential power to fill up ‘would establish this constitution”. The and empty out the branches, the judiciary was preamble said this deed would be done by ‘the not just last but least. Article III featured a People’; article VII clarified that the people ‘court’ that it called ‘supreme’, but this The Law Messenger 296 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) adjective hardly meant that the judiciary the Government of India Act, 1935 gave outranked the Legislature and Executive. statutory recognition to the fact that in times of Rather, the word primarily addressed the war the Federal Government should have hierarchy within the judiciary itself, placing power to legislate even on subjects of the America’s highest court above any lower exclusive provincial legislation. Two other Federal Courts that might be created. Thus characteristic features of Indian constitution each of article III’s first two sentences may be noticed here, and both of them have juxtaposed the ‘Supreme Court’ against other been taken over from the Government of India ‘inferior’ Federal Courts, as did earlier Act, 1935. The first relates to the legislative language in article I empowering Congress to powers of the Chief Executive on the Union ‘constitute Tribunals inferior to the Supreme and in the States, and the second relates to the Court”. Yet, even this ‘Supreme Court’ was failure of the constitutional machinery. Section given rather few constitutional tools to keep its 42 of the Government of India Act, 1935, underlings in line. (Ibid) empowered the Governor General to promulgate Ordinances during the recess of the 49. Article III thus offered the Federal Federal legislature; and Section 88 of that Act Judiciary a uniquely protective package. “Good empowered the Governor to promulgate Behaviour” now meant what it said: A Federal Ordinances during the recess of the State Judge could be ousted from office only if he legislature. These sections were strongly misbehaved, with adjudication of misbehavior assailed as involving “rule by ordinance”. But taking place in a judicial forum.(Ibid) their incorporation in Indian Constitution 50. In respect of Indian constitution, it is shows that the objection was not to the nature necessary to look into its legal Frame Work, and scope of the power but to the authorities by that is to say, what were the objects which the whom it was to be exercised. Those provisions Framers of the Constitution set out to achieve were retained in articles 123 and 213. (Ibid. in their Draft Constitution? What were the H.M.Seervai) models to which they turned? What were the 51. India was declared to be a Union of pitfalls they tried to avoid? Dr. Ambedkar, the States. Legislative powers were divided Chairman of the drafting committee, answered between the Parliament of the Union and the some of these questions when he moved that Legislative Assemblies of each State. The the Constituent Assembly should take the Draft executive powers of the Union were vested in Constitution into consideration. Indian the President acting in accordance with the constitution adopted the system of advice of the Council of Ministers headed by parliamentary form in preference to the presidential system adopted in the United the Prime Minister and accountable to the States. This was the result of course which lower house of Parliament, the House of the political struggle had taken place in India. People or the Lok Sabha. The executive powers Although the Indian constitution derives its of each State were vested in the Governor legal authority from the Indian Independence acting on the advice of the Council of Ministers Act, 1947, which conferred on the Constituent headed by the Chief Minister accountable to Assembly the power to frame the constitution, the Legislative Assembly. the Founders were influenced by the result of 52. Article 124 of the constitution struggle for political freedom. Section 102 of established the Supreme Court of India The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 297 consisting of the Chief Justice and other 55. So far as the constitution of the People’s Judges. By article 131 the Supreme Court was Republic of Bangladesh is concerned, I have given original and exclusive jurisdiction in any already mentioned the historical background of dispute between the government of India and our constitution and the preamble which aptly State or between States involving any question contains the reflection of the spirit of the of law or fact on which the existence of the national liberation struggle and the sacrifice of extent of a legal right depends. By article 132, the lives of the people. In the preamble it is an appeal to the Supreme Court from a High stated; ‘We, the people of Bangladesh, having Court lies in any civil, criminal, or other proclaimed our independence …. through a proceedings if a High Court certifies that a historic struggle established independent, substantial question of law as to the sovereign ….. which inspired our heroic people interpretation of the constitution is involved. to dedicate themselves to and our brave martyrs By article 133 civil and criminal appeals lie to sacrifice lives in, the liberation struggle.’ from any decision of the High Court on a 56. In the preamble it also indicated the question of law, and with leave. In addition, by future principles of the State that ‘through a article 136 the Supreme Court may grant special leave to appeal from any decision ‘in democratic process a socialist society, free any cause or matter passed or made by any from exploitation - a society in which the rule court or tribunal in the territory of India’. By of law, fundamental human rights and freedom, article 144, all authorities, civil and judicial in equality and justice, political, economic and the territory of India shall act in aid of the social dignity, will be secured for all citizens.’ Supreme Court. Thus, the Supreme Court was (emphasis supplied) It was also declared to given extensive powers to interfere in any safeguard, protect and defend the constitution proceedings to secure justice. and maintain the supremacy as the embodiment of the will of the people of Bangladesh so that 53. The preamble of Indian constitution was we may prosper in freedom. amended in 1976, which affirms the resolve of the people of India to constitute India into a 57. This preamble is completely different Sovereign, Socialist, Secular, Democratic from those of other countries. I mentioned Republic and to secure to all its citizens Justice, earlier that there is a bit similarity as regards social economic and political, liberty of the independence of our county with USA. thought, expression, belief, faith and worship Though in the preamble we notice the and equality of status and opportunity. Article expression ‘We the people’ in other 32 confers on every citizen the right to move constitutions as well, but the connotation and the Supreme Court for the enforcement of denotation of the word ‘We’ is not same in all fundamental rights. documents. 54. The Supreme Court of India has been 58. American independence was also very innovative in the construction of the ambit achieved by sacrifice of lives, but in that of the Fundamental Rights. Article 21 of the preamble no such details have been mentioned constitution, which protects life and liberty as in ours. It simply mentioned “we, the people ‘except according to procedures established by of the United States, in order to form a more law’ was held to confer the right to legal aid perfect union, establish justice, insure, which the court ordered the States to provide domestic tranquility, provide for the common (Khatri V. State of Bihar, (1981) 3 SCR 145). defence, promote the general welfare, and The Law Messenger 298 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) secure the blessings of Liberty to ourselves and readiness for supreme sacrifice if necessary and our Prosperity, do ordain and establish this unsurmountable feeling of commonness for Constitution for the United States of America.” fellow people of this land that made us unconquerable by the Pakistani military power. 59. The first word of the first sentence of And this unparalleled feeling for commonness the preamble of our constitution of the People’s has been rightly reflected in the very first word Republic of Bangladesh is “WE”. The strength of our supreme social document - the of a nation lies in this word and spirit of “WE”. constitution. This ‘weness’ is the key to nation building. A community remains a community unless all 62. Our Founding Fathers keeping in mind those who belong to the community can of our struggle against the tyrannical rulers assimilate themselves in this mysterious gave all powers of the Republic upon the chemistry of ‘weness’, the moment they are people under article 7, which runs: elevated to this stage they become a ‘nation’. “7. (1) All powers in the Republic And our Founding Fathers very rightfully belong to the people, and their exercise understood, realized and recognised this on behalf of the people shall be effected quintessential element of nation building and only under, and by the authority of, this this is why they wrote the first sentence of the Constitution. constitution “We, the people of Bangladesh, having proclaimed our independence on the (2) This Constitution is, as the solemn 26th day of March, 1971 and, through a expression of the will of the people, the historic struggle for national liberation, supreme law of the Republic, and if any established the independent, sovereign People’s other law is inconsistent with this Republic of Bangladesh.” Constitution that other law shall, to the extent of the inconsistency, be void.” 60. These words mean that people are the source of all supreme power; People are the 63. Thus, if we carefully look into the true achiever of the sovereignty and hence the philosophy of our political existence we constitution. The members of the Constituent unfailingly see that the citizens of our country Assembly were all people’s representatives. are woven by a common thread called ‘we the The preamble, therefore, indicates that the legal people’. And the solemn expression of the will basis of our constitution is the people-the of the people is the supreme law of the ultimate source of all power. Republic, i.e. the constitution. The triumph in 1971 was obvious because the feeling of 61. In the history of military no war was ‘weness’ was unbreakable. There were ever won with so small and meagre supply of numerous conspiracies to break this unity but arms, with so small numbers of trained fighters, the enemy utterly failed to inject even the as the people of Bangladesh did in 1971. We slightest shred of doubt among us. Now that we fought a ferocious military force equipped with are living in a free, independent and sovereign all modern weaponry and trained personnel - country, however, we are indulging into we fought against them with courage and arrogance and ignorance which threaten the valour - what really gave us the advantage over very precious tie and thread of ‘we’. them? Were it arms and weapon only? The answer is No. It was the stupendous courage of 64. No nation - no country is made of or by ‘We the people’ of this land - it was the one person. If we want to truly live up to the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 299 dream of Sonar Bangla as advocated by our cherished independence and to immortalize this father of the nation, we must keep ourselves momentum, the word ‘we’ have been put in the free from this suicidal ambition and addiction very first sentence of our constitution as the of ‘I’ness. That only one person or one man did very first word of this sagacious document. all this and etc. If we look at the example from Lamer, CJ. of Canada once described preamble USA’s town planning; they recognised the while interpreting judicial independence as “the person who worked for their town planning. Grand Indents Hall to the Castle of the For abolition of slavery, Mary Todd, wife of Constitution”. (Provincial Court Judges (1997) 16th President Abraham Lincoln, got 3 SCR 3). recognition. For the establishment of women rights there are other persons who got the 66. Our preamble clearly spells the recognition and they also remember with great backgrounds, and objectives of this Republic. acknowledgment of four Army Generals. But The Framers of the constitution clearly stated in our country a disease has infected us and the this philosophy, aims at objectives of the name of that disease is ‘myopic politicization’. constitution and to describe the qualitative This is a virus and unfortunately this has aspect of the polity the constitution is designed infected our political culture to such a length to achieve. (Anwar Hossain Chowdhury V. that many of our policy makers now are hardly Bangladesh, 34 DLR(AD)1). able to see or envision a future meant for a 67. Therefore, the Framers of the nation, not for a person. Due to this rotting constitution intended to bring about the result disease, they have personified each and which the literal construction produces and the everything. For their narrow and parochial court while interpreting the constitution is party interest they have established a fake and required to search for a meaning in conformity ‘pseudo democracy’ taking the shameful unfair with the spirit the objectives of the constitution advantage of our constitution - a constitution as indicated in the preamble. It is because the written with the blood ink of our martyrs in substantive provisions have been spelt out to 1971. achieve the objects and purposes. The words 65. We must get rid of this obnoxious ‘our ‘historic struggle for national liberation’ men’ doctrine and suicidal ‘I alone’ attitude. mentioned in the preamble clearly indicated Not party allegiance or money but merit alone that our Parliament would not do anything by should be given the highest priority at all levels way of amendment of the constitution ignoring of national life and institution building. Person the spirit of the sacrifice of millions of people. who is making tremendous sacrifice and By the same time, we should not make any humongous contribution for development and change in our historic document about the social progress must be recognised. And in democratic process, fundamental rights, doing so we must only see his or her equality and justice, rule of law, which should contribution to this society not to his political predominate in the administration of the colour or inclination. If we cannot get country. These basic principles should be ourselves out of this narrow parochialism and institutionalized - not curtailed lest the sacrifice cannot overcome the greed of party nepotisms, of martyrs would be nipped in the bud. This then this will be the biggest assault to the very preamble was changed by the military rulers foundation of our liberation war- and the rock and by the constitutional Fifth Amendment solid idea of ‘We’ which brought us the long Case, this court restored to its original position. The Law Messenger 300 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 68. It brings in the concept of distributive customs; it becomes pioneer, the articulated justice which aims at the removal of economic expression of new forces that seek to mould the inequalities and undoing of justice resolving life of the community according to new from transactions and dealings between patterns. (Legal Theory – W. Friedmann – unequal persons in the society. Though the P429) qualifying words ‘for national liberation’ ended 70. This is why Juan Williams in his book with the ‘national independence’ it should not ‘We the People’ in Chapter VII under the be comprehended that our national liberation or heading “Liberty and Justice for all” stated that independence is over, rather it is quite the two centuries later Elenor Roosevelt opened a opposite - it is a continuing process to achieve new chapter in US history by expanding the the august goal for which our martyrs way of American’s think about who qualifies sacrificed their lives. The trial of the offenders for the protection under the Founding Father’s of the crimes against humanity, genocide, war idea of natural rights. As first lady from 1933- crimes etc. by the International Crimes 1945, she used the White House Belli Pulpid Tribunal is the best example to show that the ‘to make the case that all human beings–both sacrifice of the martyrs is not over yet. Our men and women, Jews as well as Christians, independence will be meaningful when we can West Virginia core minors and Japanese, achieve ‘the rule of law, fundamental human Internees during world war tour, blacks as well rights and freedom, equality and justice, as white, refugees asylum and provides political, economic and social’ equality for all citizens after eliminating those who did not immigrants-are born with God given, natural believe in our historic struggle for national right to personal liberty”. He further stated that liberation and also those who wanted to the States of Eleanor Roosevelt works mutilate our history of national struggle. This is ratcheted earth in the post war era. Americans what our preamble stands for and every time trump as a global military power in world war we interpret it, we must keep ourselves alert two elevated the nations of new heights of about the intrinsic link between the spirit of our moral authority on issue of right or wrong, historic struggle for national liberation and the justice and injustice. scheme of our constitution which embody that 71. People everywhere wanted clear moral spirit. rules and how to treat each other in the 69. The characteristic feature of an aftermath of horrific human rights abuses undeveloped country is the stark reality committed by nazi fascists and terrorists. It was between its economic and social state and the the key, everyone felt to preventing future minimum aspirations of a mid-twentieth works. As one of the first US delegates to the century State modelled upon the values and newly created United Nations, Mrs. Roosevelt objectives of the developed countries of the began exporting the American concept of west. All these countries have an natural rights before her work on UN’s overwhelming need for rapid socio-economic Universal Declaration of Human Rights - the change. Much of this must express itself in world had never heard an argument for global legal change in constitutions, statutes, and action to protect all people because they have administrative regulations. Law in such a State got given, natural rights. And no one had made of Social evolution is less and less the recorder the case that international action to defend of established social, commercial and other those natural rights superseded claims of any The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 301 sovereign government to set his own groups succinctly and perfectly depicted in those only and do as it pledge with its citizen within its two hundred and thirteen words that it is easily own boarders. possible to visualize it as a masterpiece of a 72. This is what I believe in expression ‘We veteran artist. But the ink that has been used to the People’ mentioned in our preamble. There draw this masterpiece is the blood of is no doubt that the elected representatives of innumerable martyrs who sacrificed their lives Bangladesh Awami League led the liberation for a noble purpose. The martyrs dreamed that struggle, but people from all walks of life, like the “FUNDAMENTAL AIM of the State labourers, workers, fishermen, housewives, Bangladesh, is to realize through the prisoners, educationalists, students, democratic process a socialist society, free industrialists, intellectuals, Police, Army, from exploitation a society in which the rule of Ansars, BDRs and supporters of other political law, fundamental human rights and parties participated, except few religiously FREEDOM, EQUALITY and JUSTICE, fanatic ideologue and their evil companions. political, economic and social, will be secured Our liberation war was not an isolated event for all citizens;” (emphasis added). But alas! rather it was an all engaging phenomena, This grand ideology was later defaced, turning each and everyone essentially a distorted, ravaged and molested with the dirty freedom fighter. Some of them directly fought hands of power-mongers, and lastly, this face to face in the battle field - some of them magnum opus of our nation (the constitution) supported with logistics - some of them was thrown away aside by the power-greedy encouraged them to achieve their goal - some politicians and military adventurists. Our hard- of them travelled across the world to let people earned freedom was snatched away from us know of the horrific atrocities perpetrated by and our hundred years of struggle for the military junta and their cohorts—some of democracy, rule of law and freedom from them made the international community aware poverty and hunger was brutally suppressed. of the real picture so that they could support 74. One of the main reasons that we were our cause— some of them collected money by able to achieve our independence within a short different means to support the freedom span of nine months time is that in true sense of fighters—some of them who could not cross the word it was a people’s war—all the citizens the border gave shelter to the freedom fighter— wholeheartedly engaged and supported the all- some of them played dual role and secretly sent out effort for liberation. The engagement of the messages and information to the freedom mass people and their unprecedented support fighters. for the war acted as great source of strength for 73. The dream of an egalitarian society the freedom fighters, the political leaders, and based on welfare philosophy was excellently others who were directly involved in the drawn in the preamble of our constitution. Our frontlines of the war. In the history of the world Preamble is truly a magna carta for this nation. hardly any nations had been able to achieve Anybody who reads it will be touched with independence through a war of liberation emotion and spirit of sacrifice and higher within such short time. It had been possible purposes of this State for which it was because ‘we the people’ wanted it. It is ‘we the established. The preamble of our constitution people,’ who established “Bangladesh” and it being the dream of a war-born nation was so “is a unitary, independent, sovereign Republic The Law Messenger 302 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) to be known as the People's Republic of thereby exercising a power that later Bangladesh” (article 1). This “we the people” Americans would call ‘judicial review’. Most has been more elaborately and more constitutional law casebooks begin with expressively acknowledged in article 7 as Marbury and lavish attention on the topic of quoted above. judicial review.’ 75. A creative approach has been adopted in 77. The power of judicial review was our constitution while organizing the power implicit in the Government of India Act, 1935, structure of the State. Clause (2) of article 7 and had been frequently exercised by the courts make it abundantly clear that, “This of India. The power was, however, expressly constitution is, as the solemn expression of the conferred by the Indian constitution. Motilal C. will of the people, the supreme law of the Setalvad, in his book ‘My life – Law and other Republic, and if any other law is inconsistent things’ stated that after Marbury’s decision with this constitution that other law shall, to the explaining why such a function was the extent of the inconsistency, be void.” legitimate function of the judicial department, (emphasis added) Now a very natural question it was perhaps to avoid a controversy of this may arise that in the constitution who has been kind that Indian constitution makers had made given the responsibility to declare a law void in express provision for judicial review. case it conflicts or is ‘inconsistent’ with article 78. Judicial review needs to be set in the 7 of the constitution? Has this power been context of mechanisms which seek to activate given to the Executive? The answer is an broader political accountability. The exercise emphatic ‘no’. Has this power been given to of government power must be controlled in the Parliament? The answer is emphatically order that it should not be destructive of the ‘no’. This heavy burden of scrutinizing very values which it was intended to promote constitutionality of any law made by the (Lord Steyn, “The Weakest and Least Parliament or the administrative body of the Dangerous Department of Government”). State has been rested upon the shoulder of the There is a growing appreciation that the courts Supreme Court. For that matter the Supreme and Parliament have distinct and Court has been assigned with the power of complementary constitutional roles so that the ‘judicial review’ by the constitution itself. courts will no longer avoid adjudicating on the 76. The most celebrated constitutional law legality of a decision merely because it has case ever decided pivoted on one of the been debated and approved in Parliament. (R constitution’s most recondite provision - V. Secretary of State Home Department (2001) according to John Marshall’s opinion for the EWCA Civ 789). Judicial review also goes Court in Marbury V. Madison (1803) 5 US some way to answering the age-old question of 137, part of Congress’s 1789 Judiciary Act ‘who guards the guards?” by ensuring that attempted to do what the Judicial article did not public authorities responsible for ensuring permit-namely, expand the Court’s original accountability of government do so within the jurisdiction. Marshall’s Court famously boundaries of their own lawful powers. (De proceeded to disregard this part of the act, Smith’s Judicial Review. P.6-7). The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 303 79. In this juncture it is apt to quote the man’ and are the sort of thing guaranteed observations of Prof. Schwartz, the in the American bills of rights. ‘It must Constitution of the United States, Vol –I: be conceded’, the Supreme Court has affirmed, ‘that there are such rights in “An organic instrument is naught but every free government beyond the empty words if it cannot be enforced by the control of the State. A government which Courts. It is judicial review that makes the recognized no such rights, which held the provisions of a constitution more than mere lives, the liberty, and the property of its maxims of political morality.....” The universal citizens subject at all time to the absolute sense of America has come to realize that there disposition and unlimited control of even can be no constitution without law the most democratic depository of administered through the Supreme Court. power, is after all but a despotism. It is When, in a real controversy, an appeal is made true it is a despotism of the many, of the to law, the issue must be left entirely to the majority, if you chose to call it so, but it judgment of the highest tribunal. This is nonetheless a despotism.” principle, in the phrase of an English constitutional lawyer, provide the only 80. In A.K. Kaul V. Union of India, (1995) adequate safeguard which has hitherto been 4 SCC 73, the Supreme Court of India invented against unconstitutional legislation. It observed that in ‘a written constitution the is, in truth, the sine qua non of the powers of the various organs of the State are constitutional structure. So long, therefore, as limited by the constitution. The extent of those the constitution shall endure, this tribunal must limitations has to be determined on the exist with it, deciding in the peaceful forms of interpretation of the relevant provisions of the judicial proceedings the angry and irritating Constitution …. The task of interpreting the controversies between sovereignties, which in provisions of the constitution is entrusted to the other countries have been determined by the judiciary which is vested with the power to test arbitrariness of force. Again, speaking of the the validity of the actions of any authority rule of law, Prof. Schwartz observed: functioning under the Constitution … in order to ensure that the authority exercising the “Closely related to what has just been power conferred by the constitution does not said is a third essential of the rule of law transgress the limitations imposed by the – that there are certain fundamental Constitution on the exercise of that power. This principles above the State itself, which power of judicial review is therefore implicit in the State, sovereign power though it be, a written constitution and unless expressly cannot abrogate. Government action is excluded by the provisions of the constitution, valid only if it does not conflict with the power of judicial review is available in these principles. The principles in respect of the exercise of powers under any question are those we usually provision of the Constitution.’ comprehend by the expression individual rights of the person. They are what an 81. Without going through all landmark earlier age called ‘the natural rights of decisions in the judicial history on the question The Law Messenger 304 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) of judicial review some observations, remarks The Constitution Seventeenth Amendment Act, of a renowned jurist are apt to mention here. 1964 had placed a still larger number of State On the inaugural sitting of the Supreme Court enactments in the Ninth Schedule to obviate a of India, Harilal Kanai, Chief Justice of India, challenge against them as being in violation of said, the court must be ‘quite untouchable by fundamental rights. This amendment to the the legislature or the executive authority in the constitution was upheld by a Bench of five performance of its duties. Beyond this Judges Judges. should be, and perceived to be unmoved by the ‘extraneous considerations feared likely to 83. It was ultimately in Golak Nath V. State influence them’. ((1950) SCR 1). Referring to of Punjab, AIR 1967 SC 1643, where a Bench the role of the court to interpreting the of eleven members considered whether any constitution; Chief Justice then concluded his part of the fundamental rights guaranteed in the speech on the question of its independence: constitution could be abrogated or amended by constitutional amendment. The court by “The Supreme Court, an all-India majority viewed that none of the fundamental Court will stand firm and aloof from rights were amenable to the amending power of party politics and political theories. It is article 368 because an amendment to the unconcerned with the changes in the constitution was a law under article 13(2) and government. The Court stands to under that article, all laws in contravention of administer the law for the time being in any of the fundamental rights in Part III of the force, has goodwill and sympathy for all, constitution were expressly declared to be void. but is allied to none. Occupying that position, we hope and trust it will play a 84. Six years later in 1973, a larger Bench great part in the building up of the nation, of thirteen Judges had to consider the validity and in stabilizing the roots of civilization of some of the later amendments, the Twenty which have twice been threatened and Fourth, Twenty Fifth and Twenty Ninth shaken by two world wars, and maintain Amendment of the constitution. The case was the fundamental principles of justice practically based on considering the correctness which are the emblem of God.” of the decision of Golaknath. (Kesavananda Bharati V. State of Kerala, AIR 1973 SC 82. The journey of judicial review on 1461). constitutional amendments of India started from the First Amendment Act, 1951, which 85. In Kesavananda the following points had inserted article 31B. In Shankari Prashad were agitated: V. Union of India, AIR 1951 SC 458, the court (a) “Parliament, in exercise of its held that to make a law which contravenes the amending power, cannot abrogate or constitution constitutionally valid is a matter of abridge the fundamental rights. These constitutional amendment and as such falls were the basic human freedoms within the exclusive power of Parliament. The which the people of India had Shankari Prashad case was revisited in Sajjan reserved for themselves while giving Singh V. State of Rajasthan, AIR 1965 SC 845. to themselves the Constitution; The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 305 (b) In any event, Parliament, in fundamental rights are among the exercise of its amending power, cannot essential features of the constitution; alter or destroy the basic structure or the therefore, while they may be abridged, essential features for the Constitution; the abridgement cannot extend to the point of damage to or destruction of the (c) A free and independent judiciary - core of the fundamental rights. Thus, it without it, all rights would be writ in was unnecessary to decide whether the water; Golaknath case was rightly decided or (d) The balance between the not, since after the 24th Amendment, legislature, the executive and the Parliament has the power to abridge any judiciary - none of the three organs of the fundamental right without damaging or State could use its powers to destroy the destroying its core. powers of the other two, nor could any of (2) While the property of any person them abdicate its power in favour of may be taken away on payment of an another.” ‘amount’ which may not be the market 86. The Indian Supreme Court by a majority value or constitute ‘compensation’ in the held that though Parliament can amend any part eye of the law, the amount or the of the constitution in exercise of its amending principles on which it is based must have power, it cannot alter the basic structure or a reasonable relation to the property. framework of the constitution. (Golaknath was overruled). Though the judgment was clearly (3). Article 31C is void since it takes by a majority, it was apparent that the division away most valuable fundamental rights, was sharp- 6:6. Khanna, J. who was with the even those unconnected with property. majority, did not accept that all fundamental 88. And other six Judges held as under: rights enshrined in Part III were part of the 1) The power of amendment is basic structure. He said that the right to unlimited. property was not. Except for this, he was in agreement with the rest of the majority opinion 2) On a fair construction of that the basic features of the constitution cannot Article 31(2) as altered by the 25th be amended in such a way as to destroy or Amendment, the state’s right to acquire damage its basic structure … or requisition property on payment of an 87. The majority opinion was as follows: ‘amount’ must, according to some of these judges, be so exercised that the “(1). Parliament’s amending power is amounts is not illusory and does not limited. While Parliament has the right to constitute a fraud upon the right to abridge any fundamental right or amend property. any provision of the Constitution, the amending power does not extend to 3) Article 31C is valid, even damaging or destroying any of the though it damages or destroys the essential features of the constitution. The essential features of the Constitution.” The Law Messenger 306 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 89. Since there was Division by six into six, which he has used in making and promulgating Khanna, J. agreed with none of these 12 Judges the law. It is said, constitution must be and decided the case midway between the two construed as on the day after it was enacted. conflicting views holding that (a) the power of Dr. Wynes phrase ‘generic interpretation’ amendment is limited; it does not enable clearly brings out the true nature of this Parliament to alter the basic structure of principle of interpretation. He wrote: - framework of the constitution; and (b) the ‘…generic interpretation’ … asserts no more substantive provision of article 31C, which than that new developments of the same subject abrogates the fundamental rights, is valid on and new means of executing an unchanging the ground that it does not alter the basic power do arise from time to time and are structure or framework of the constitution. capable of control and exercise by the 90. Now turning to the point as to the appropriate organ to which the power has been interpretation of the constitution, there is no committed … while the power remains the doubt that in interpreting a constitutional same, its extent and ambit may grow with the document the meaning and intention of progress of history. Hence it will be seen that Framers of the constitution must be ascertained suppositions as to what the Framers might have from the language of that constitution itself; done if their minds had been directed to future with the motives of those who framed it, the developments are irrelevant and that the court has no concern. (In re 1938 (1939) FCR question whether a novel development is or is 18, 36, (39)). After quoting the observations of not included in the terms of the constitution Lord Wright in James V. Common Wealth, finds its solution in the application of the (1936) AC 578 Gwyer CJ stated that “a ordinary principles of interpretation, namely, Constitution must not be construed in a narrow what is the meaning of the terms in which his or pendantic manner, and that construction intention has been expressed?” (R. v. Brislan; most beneficial to the widest possible p. (1935) 54C.L.R. 262). amplitude”. 92. Questions relating to extrinsic aids to 91. Professor Cross in his book on construction have been increasingly engaging Statutory Constructions, 1976, has given a the attention of courts in India and England. careful analysis of the expression “the intention Therefore, we must consider the recent trends of Parliament”. According to him, it is in statutory interpretation before considering meaningless to speak of the intention of their impact on the interpretation of the Parliament unless it is recognized that the constitution. The importance attached to expression is used by analogy but in no way ‘context’ in statutory interpretation, has gone synonymous with the intention of any hand in hand with an analysis of the phrase individual concerning the general and ‘intention of Parliament’ and of the factors that particular affects of a document he prepares go to make up the whole legislative process and signs. He adds that Parliament is treated as resulting in an Act of Parliament. Once it is though it was an individual law maker, whose realized that the ‘intention of Parliament’ ‘is intention is to be ascertained from the language not a description but a linguistic convenience’ The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 307 the whole legislative process assumes who spoke might differ from each other”. importance for statutory interpretation. This (Trav-Cochin V. Bombay Co. Ltd., new approach emphasizes, first the realities of 1952(SCR) 1112). the legislative process; secondly, the close 94. Accordingly, in Kesavananda, it was relationship between the draftsman of an Act observed that it is not necessary to refer to and the court of construction; and thirdly, the judgments which have relied upon speeches practical grounds on which English courts limit made in the Constituent Assembly without the use of ‘travaux preperatories’ (preparatory considering the question whether they were work) as an aid to construction. admissible for interpreting the Constitution. In 93. Sometimes the parliamentary debates that case Sikri, CJ. Hedge, Mukherjea and are taken into consideration in interpreting a Chandrachud,JJ. held that speeches were not constitutional provision. In this regard Patanjali admissible extrinsic aids to the interpretation of Sastri, CJ. ruled that speeches made in the the constitution. Keeping the above principles Constituent Assembly in course of draft on the genesis of the constitutional law, let us constitution could be used as aids for look at the findings of the High Court Division. interpreting any article of the constitution. He 95. The High Court Division upon observed that: analysing the views taken in the Exparte “… the use made by … Judges below Sidebotham, (1880) 14 Ch. W. 458; Tariq of the speeches made by the members of Transport Company V. Sargotha Bhera Bus the Constituent Assembly in the course Service, 11 DLR (SC) 140; Mian Fazl Din V. of the debates on the draft Constitution is Lahore Improvement Trust, 21 DLR (SC) 225; unwarranted. That this form of extrinsic Legal Control of Government by Schwartz and aid to the interpretation of statutes is not Wade, page 291; R.V. Metropolitan Police admissible has been generally accepted Commissioner (1968) 1 All ER 763; Blackburn in England, and the same rule has been V. Attorney General (1971) 2 All ER 1380; observed in the construction of Indian R.V. Metropolitan Police Commissioner (1973) Statutes. The reason behind the rule was All ER 324, on the question of maintainability explained by one of us in Gopalan that of the writ petition held that with the increase “A speech made in the course of the of governmental function, the courts in India debate on a bill could at best be and England found the necessity of liberalising indicative of the intent of the speaker, the standing rule to preserve the rule of law and but it could not reflect the inarticulate that the duty owed by the public authority was mental process lying behind the majority to the general public and not to an individual or to a determinate class of persons, and therefore, vote which carried the Bill. Nor is it the writ petitioners have locus standi as they reasonable to assume that the minds of have sufficient interest in the performance of all those legislator were in accord” or, as public duty. it more tersely pot in an American case- ‘those who did not speak may not have 96. On the question of public interest agreed with those who did; and those litigation, the High Court Division has The Law Messenger 308 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) considered the cases of Mumbai Kamgar Sava Parliamentary removal has not proved to be V. Aledulbhai, AIR 1976 S.C. 1455; S.P. most popular among Commonwealth Gupta V. President of India, AIR 1982 S.C. jurisdictions; that ad-hoc tribunals and 149; Kazi Moklesure Rahman V. Bangladesh, permanent disciplinary councils are akin to the 26 DLR (AD) 44; Dr. Mohiuddin Farooque V. Chief Justice – led Supreme Judicial Council; Bangladesh, 49 DLR (AD) 1; Ekushey that the relationship between the Parliament Television V. Dr. Chowdhury Mahmud Hasan, and the judiciary should be governed by respect 54 DLR (AD) 130; Anwar Hossain Chowdhury for the Parliament’s primary responsibility for V. Bangladesh, BLD (spl) 1; M. Saleemullah law-making on the one hand and for the V. Bangladesh, 2005 BLD 195 and held that judiciary’s responsibility for the interpretation the horizon of judicial review is being and application of law; that it leaves no room expanded through judicial activism with the for doubt that the task of administration of passage of time facilitating citizens access to justice is entrusted to the Judges who are justice; that a great duty is cast upon the unelected people and thus the Judges exercise lawyers for onward march of our constitutional sovereign judicial power of the people and by journey to the desired destination; that the writ the authority of the constitution; that being the petitioners are very much concerned with the guardian of the constitution, the Supreme Court independence of the judiciary, inasmuch as, is empowered to interpret and expound the they are the stakeholders in the administration constitution. of justice without hindrance; that the concern 98. The High Court Division further held expressed by the writ petitioners about the that the Parliament’s amending power of the independence of higher judiciary and constitution is not absolute and it cannot make separation of powers among the three organs of any law in derogation of the provisions and the the State is a public concern. I fully endorse basic features of the constitution; that the the views expressed by the majority of the Parliament cannot transgress the constitutional High Court Division and with a view to limitation and if it does so, it can be termed as avoiding repetition, I have refrained from colourable legislation; that amendment to the making any further opinion supplementing constitution should be made subject to the those of the High Court Division. retention of basic structure of the constitution; 97. On the question of judicial that article 70 of the constitution has fettered accountability, the High Court Division has the members of Parliament unreasonably and relied upon the Commonwealth Latimar House shockingly-it has imposed a tight rein on them- Principles and held that the Judges are they cannot go against their party line or accountable to the constitution and the law; that opposition and on any issue of the Parliament; the proper procedures for the removal of that non-framing of any law pursuant to article Judges on grounds of incapacity misbehaviour 95(2)(c) of the constitution has virtually given that are required to support the principles of an upper hand to the executive in the matter of independence of the judiciary – any such appointment of the Judges of the Supreme procedures should be fairly and objectively Court; that unless and until articles 115 and administered; that the Westminster system of 116 are restored to their original position, the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 309 lower judiciary will continue to remain under Constitution Sixteenth Amendment ultra vires the sway and influence of the executive the constitution. impinging upon the independence; that the 100. Mr. Murad Reza raised the issue of constitution does not allow any judicial role by writ petitioners’ locus standi to maintain the the Parliament and the role of each organ of the writ petition and also the maintainability of the State is clearly defined and carefully kept writ petition. In support of his contention he separate with a view to maintaining its has relied upon some cases which were harmony and integrity; that the law to be considered by the High Court Division. promulgated by the Parliament under the amended article 96(3) is incongruous, 101. The Philosophy of Public interest inasmuch as, it being an ordinary law it will be litigation (PIL) has developed in recent decades subject to frequent changes by simple majority and marks a significant departure from of the members of Parliament in the interest of traditional judicial proceedings. It is an idea the party in power jeopardizing the that was in the making for some time before its independence of judiciary; that Sixteenth vigorous growth in the early eighties. It now Amendment has facilitated the political dominates the public perception of the executives to control the judiciary; and that the Supreme Court of Bangladesh and other courts amendment is also beyond the pale of of the region. This court is an institution not amending power of the constitution in view of only for reaching out to provide relief to article 7B of the constitution. citizens, but even venturing into formulating 99. Mr. Mahbubey Alam, Mr. Murad Reza, policy which the State must follow including Mr. Ajmalul Hossain, Mr. Abdul Matin the Parliament’s domain to amend the Khasru, supported the Constitution Sixteenth constitution. Initially it was taken on the Amendment and submitted written arguments. philosophy that most of the citizens were Their arguments are almost identical. unaware of their legal rights, and much less in According to them the writ petition is not a position to assert them, and therefore, a maintainable, that the writ petition is public spirited person may seek judicial redress premature; that the judiciary as one of the by interpreting the words ‘any person essential organs of the Republic ought to be aggrieved’ not only individuals but also people made accountable to the people; that the as a collective and consolidated personality. removal of the Judges should be left with the The court has shifted from its traditional rule of representatives of the people; that the Sixteenth standing which confines access to the judicial Amendment has not curtailed the independence process only to those to whom injuries are of judiciary; that this amendment has not caused or legal wrong is done and on the violated article 7B of the constitution; that this contrary, where a legal wrong or legal injury is amendment restored the original provision caused to a person or to a determinate class of contained in article 96 and thereby it has not persons by reason of violation of any interfered with the basic structure of the constitutional legal right or any burden is constitution and that the High Court Division imposed in contravention of any constitutional erred in its majority view in declaring the legal provision without legal authority of law The Law Messenger 310 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) any member of the public can maintain a any constitutional or legal right or any petition for judicial review redressing for the burden is imposed in contravention of legal wrong or injury. any constitutional or legal provision or without authority of law or any such 102. Bhagwati, J. of the Supreme Court of legal wrong or legal injury or legal India quoted a passage from Professor Thio’s burden is threatened and such person or book on locus standi and judicial review (1982) determinate class of persons is by ASC, P-189 and observed that the judicial reasons of poverty, helplessness or function is that it is primarily aimed at disability or socially or economically preserving legal order by confining the disadvantaged position, unable to Legislative and Executive organs of approach the Court for any relief, any government within their powers in the interest member of the public can maintain an of the public rests on the theory that the courts application for an appropriate direction, are the final arbiters of what is legal and illegal order or writ in the High Court under requirements of locus standi are, therefore, Article 226 and in case of breach of any unnecessary in this case since they merely fundamental right of such person or class impede the purpose of the function as of persons, in this Court under Article 32 conceived here. He concluded his opinion by seeking judicial redress for the legal observing as under: wrong or injury caused to such person or “We would, therefore, hold that any determinate class of persons.” (S.P.Gupta member of the public having sufficient V. Union of India, 1981 supp SCC 87 at interest can maintain an action for P.210). judicial redress for public injury arising 104. Thereafter a Constitution Bench of the from breach of public duty or from Supreme Court in M.C. Mehta V. Union of violation of some provision of the India, AIR 1987 SC. 1086 has given a judicial Constitution or the law and seek innovation as to how the Judges could leave enforcement of such public duty and their footprints on the sands of the nation’s observance of such constitutional or legal legal history as under: provision. This is absolutely essential for maintaining the rule of law, furthering “this court should be prepared to the cause of justice and accelerating the receive light from whatever source it pace of realization of the constitutional comes, but it has to build up its own objective”. jurisprudence, evolve new principles and lay down new norms which would 103. In the Supreme Court Judges case S.P. adequately deal with the new problems Gupta V. India, AIR 1982 S.C 149, it was which arise in a highly industrialised observed as under: economy.” “Where a legal wrong or a legal injury I fully endorse the above view. In is caused to a person or to a determinate Anwar Hossain Chowdhury (supra), the class of persons by reason of violation of importance of independence of judiciary The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 311 was highlighted holding that the concept the purpose of making human rights of independence of judiciary as part of meaningful for the community or protecting the the basic feature of the constitution, to independence of the judiciary. secure rule of law, a lawyer is entitled to 106. Mr. Murad Reza has made strong challenge the Constitutional Amendment resentment towards the role of most of the for safeguarding the independence of learned Amici and submits that they have judiciary. The High Court Division has exceeded their power in expressing their assigned proper reasons in holding that opinions. I am indeed shocked at the manner the writ petitioners have locus standi to the learned Additional Attorney General has maintain the writ petition. I find no criticized the learned Amici Curiae. In this reason to depart from the same. connection, I will not be able to explain this 105. The Supreme Court of India traveled point better than the opinions expressed by J.S. to the extent that if the court takes cognizance Verma, C.J. in a seminar on ‘The of a PIL, it will not allow the petitioner to Constitutional Obligation of the Judiciary’ withdraw the petition on his free will. In Sheela under R.C. Memorial Lecture (1997) 7 SCC 1, Varsi V. Union of India, (1988) 4 SCC 266 and which are as under: SP Anand V. HD Debugoura, (1996) 6 SCC ‘It must be said to the credit of the Bar, and 734, it was observed “In PIL cases the this I say from personal experience over the petitioner is not entitled to withdraw his years, the most busy lawyers who charge large petition at his sweet will unless the court sees fees which I often openly criticize, if called reason to permit withdrawal. In granting upon to appear as amicus curiae in any such permission the court would be guided by the matter, leave every other work and without considerations of public interest and would also charging a single rupee put in their best effort ensure that it does not result in abuse of process in a PIL matter. That credit is due to the Bar. of the law.” I fully endorse the views and find That is the beauty of the justice delivery system no reason to depart from the same principle, and that goes to show that the legal profession because in publicly important cases the has not yet become wholly mercenary. Supreme Court being the guardian of the Professionalism remains and professionalism is constitution after seizing the issue cannot the essential trait of any such service-oriented remain a silent spectator even after noticing enterprise.’ that there was violation of the constitution or the law. This Court always keeps in mind that 107. In traditional adversarial system, the PIL is not a litigation of an adversary character lawyers of the parties present points which are undertaken for the purpose of holding the at issue to enable the court to decide for or government or its officers responsible for against a party. In PIL there are no winners or making reparation but it is a dispute which losers and the mindset of both lawyers and involves a collaborative and co-operative effort Judges can be different from that in ordinary on the part of the State or its Officers, the litigation. The court, the parties and the lawyers lawyers appearing in the case and the court for are expected to participate in resolution of a The Law Messenger 312 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) given public problem. (Dr. Upendra Baxi V. the three Branches of Government; The State of U.P. (1986) 4 SCC 106). Universal Charter of the Judges; UN Basic Principles on the Independence of Judiciary, 108. Mr. Manzill Murshid while adopting International Bar Association (IBA) Minimum the arguments made in the High Court Division Standards of Judicial Conducts; Beijing also submits that the writ petition is Statement of Principles of the Independence of maintainable. He has also submitted about the the Judiciary in the LAWASIA Region; the background of the Sixteenth Amendment. International Principles on the Independence According to him, the Supreme Court and Accountability of Judges, Lawyers and interfered with the Contempt of Court Act, Prosecutors’. 2013; the relevant provisions of the Durniti 109. Mr. T.H. Khan, Mr. M. Amirul Islam, Daman Commission Ain, 2004 and direction to Mr. M.I. Farooqui, Dr. Kamal Hossain, Mr. arrest the accused in Narayangonj’s sensational seven murder case that prompted the Abdul Wadud Bhuiyan, Mr. A.F. Hassan Ariff, Parliament with a view to taking control of Mr. Rokanuddin Mahmud, Mr. Fida M. Kamal higher judiciary by amending the provisions of and Mr. A.J. Muhammad Ali supported the removal mechanism of Judges of the highest judgment of the High Court Division declaring court. He also submitted that most of the the Sixteenth Amendment illegal, ultra vires members of the Parliament are involved in the constitution and they have also submitted development works and their personal written arguments. business. At times, they are affected by the 110. According to them the judgment the order of the highest court of the country. Under Fifth Amendment case approved and upheld the amended provision in any case, a member the Supreme Judicial Council mechanism for of Parliament can bring a motion against a removal of the Judges of the higher judiciary; Judge and discuss it in the Parliament and due that the impugned amendment is to this reason, no Judge will be able to perform unconstitutional; that this amendment curtailed his duties independently. Ultimately the justice the independence of judiciary; that article 70 of would be frustrated and administration of the constitution has imposed a tight rein on the justice would collapse without any delay. In his members of Parliament and therefore, they submission he has mentioned the procedure for have no freedom to question their Party’s removal of Judges by Parliament in some other stance; that the Supreme Judicial Council countries like USA, UK, India, Sri Lanka and mechanism reinforces the independence of drawn the court’s attention of the devastating judiciary and that the impugned amendment effect of the Parliamentary removal system of contravenes article 7B and the basic structures Judges. He has also mentioned some countries of the Constitution. where Judges are removed by Supreme Judicial Council/Tribunal etc. He has specially 111. Before I deal with the points mentioned the removal procedure of Judges in raised by the learned senior counsel, it is Pakistan, Zambia, Fiji, Namibia, Singapore and pertinent to recapitulate the trajectory of Bulgaria. He has also mentioned the various amendments made to the different Appointment, Tenure and Removal of Judges provisions relating to the constitution for under Commonwealth Principles, specially correct resolution of the issues involved Commonwealth (Latimer House) Principles on in the matter which are as under: The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 313 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Preamble In the [BISMILLAH- beginning of AR- the RAHMAN- Constitution, AR-RAHIM above the (In the name of Preamble, the Allah, the following Beneficent, the shall be Merciful )/In inserted, the name of the namely— Creator, the Merciful.] “BISMILLA- AR- RAHMAN- AR-RAHIM (In the name of Allah, the Beneficent, the Merciful)”

2A The State The State religion of the religion of the Republic is Republic is Islam, but Islam, but the other state shall religions may ensure equal be practised status and in peace and equal right in

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harmony in the practice of the Republic the Hindu, Buddhist, Christian and other religions

6 Citizenshi The The citizenship p of citizenship of of Bangladesh

Banglades Bangladesh shall be h shall be shall be determined and determine determined regulated by

d and and regulated law. regulated by law.

by law;

citizens of The people of Banglades The citizens Bangladesh h shall be of Bangladesh shall be known known as shall be as Bangalees as Bangalees known as a nation and Bangladeshis the citizens of Bangladesh 6 shall be known (contd.) as Bangladeshis.

7A If any person, by show of

force or use of

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force or by any other un-

constitutional means—

abrogates, repeals or

suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article; or

subverts or attempts or

conspires to subvert the confidence,

belief or reliance of the citizens to this

Constitution or any of its article;

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his such act be sedition and

such person shall be guilty of sedition.

If any

person—

abets or instigates any act mentioned in clauses (1); or

7A approves, (contd.) condones, supports or ratifies such act,

his such act shall also be the same offence.

Any person alleged to have

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committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws.

7B Notwithstandin g anything

contained in article 142 of the

Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the The Law Messenger 318 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

provisions of articles relating

to the basic structures of the

Constitution including 7B article 150 of Part XI shall (contd.) not be amendable by way of insertion, modification, substitution, repeal or by any other means.

42 In article 42, (2) A law made for clause (2) under clause

the following (1) of this shall be article shall substituted, provide for the

namely:-- acquisition, nationalisation “(2) A law or requisition made under with The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 319 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

clause (1) compensation shall provide and shall fix

for the the amount of acquisition, compensation nationalisatio or specify the

n or principles on requisition which, and the with manner in compensation which, the and shall compensation either fix the is to be amount of assessed and compensation paid; but no or specify the such law shall principles on be called in

which, and question in any the manner in court on the which, the ground that any

compensation provision of is to be the law in assessed and respect of such

paid; but no compensation such law shall is not adequate be called in

question in any court on the ground

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that any provision in

respect of 42 such compensation (contd.) is not adequate...”

47 Original Proviso to proviso to clause (2) of clause (2) of article 47 article 47 was “Provided that substituted as nothing in this follows: article shall “Provided prevent that nothing amendment, in this article modification or shall prevent repeal of any amendment, such law.” modification or repeal of any such law.”

95 (1) The (1) The Chief (1) The Chief Chief Justice and Justice and ... Justice other judges other judges shall be shall be shall be (b) has, for not The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 321 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

appointed appointed by appointed by less than ten by the the President. the President. years, held

President, judicial office

and the in the territory other (2) A person (2) A person of Bangladesh;

Judges shall not be shall not be or shall be qualified for qualified for

appointment appointment appointed by the as a Judge as a Judge (c) has such President unless he is a unless he is a qualifications after citizen of citizen of as may be consultati Bangladesh Bangladesh prescribed by on with and– and – law for the Chief appointment as (a) has, for (a) has, for Justice. a judge of the not less than not less than Supreme ten years, ten years, Court. been an been an (2) A advocate of advocate of person the Supreme the Supreme shall not (3) In this Court; Court; be article, 95 qualified or or “Supreme (contd.) for Court” (b) has, for (b) has, for appointme includes a not less than not less than nt as a court which at ten years, ten years, Judge any time before held judicial held judicial unless he the office or been office in the The Law Messenger 322 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

is a citizen an advocate, territory of commencemen of in the territory Bangladesh; t of this Banglades of or Constitution, h and– Bangladesh exercised

and has, for jurisdiction as (a) has, not less than (c) has such a High Court in for not three years, other the territory of less than exercised the qualifications Bangladesh. ten years, powers of a as may be been an district Judge. prescribed by advocate law for of the appointment Supreme (3) In this as a Judge of Court; article the Supreme or “Supreme Court. Court” (b) has, includes a for not court which at (3) In this less than any time article, ten years, before the “Supreme held commenceme Court” judicial nt of this includes a office or Constitution court which at been an exercised any time advocate, jurisdiction as before the in the a High Court commenceme territory in the territory nt of the of The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 323 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Banglades of Second h and has, Bangladesh. Proclamation for not (Tenth less than Amendment) three Order, 1977, years, exercised exercised jurisdiction as the a High Court powers of or Supreme a district Court in the Judge. territory now forming part

of (3) In this Bangladesh. article “Supreme Court” includes a court which at any time before the commenc ement of this Constituti on

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exercised jurisdictio n as a High Court in the territory of Banglades h.

96 (1) (1) Subject to (1) Subject to (1) Subject to (1) Subject to (1) Subject to (1) Subject to Subject to the provisions the other the other the other the other the other

the of this article provisions of provisions of provisions of provisions of provisions of provisions a Judge shall this article, a this article, a this article, a this article, a this article, A of this hold office Judge shall Judge shall Judge shall Judge shall Judge shall hold

article a until he hold office hold office hold office hold office office until he Judge attains the age until he until he until he attains until he attains attains the age shall hold of sixty-two attains the age attains the age the age of the age of of sixty-seven office years. of sixty-two of sixty-five sixty-seven sixty-seven years. until he years. years. years. years.

attains the

age of (2) A Judge (2) A Judge sixty-two may be (2) A Judge (2) ... (2) ... (2) A Judge shall not be years. removed from shall not be shall not be removed from

his office by removed from removed from his office except

order of the office except his office by an order of (2) A President on in accordance except in the President The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 325 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Judge the ground of with the accordance passed pursuant shall not misbehaviour following with the to a resolution

be or incapacity: provisions of following of Parliament removed Provided that this article. provisions of supported by a from his no judge shall this article. majority of not

office be removed less than two-

except by until he has (3) There thirds of the shall be a (3) There shall an order been given a total number of of the reasonable Supreme be a Supreme members of President opportunity of Judicial Judicial Parliament, on passed showing Council, in Council, in this the ground of pursuant cause against his article article referred proved to a the action referred to as to as the misbehaviour or resolution proposed to the council, council, which incapacity. of be taken in which shall shall consist of

Parliamen regard to him. consist of the the Chief t Chief Justice Justice of (3) Parliament

supported of Bangladesh, may by law

by a (3) Omitted Bangladesh, and the two regulate the majority and the two next senior procedure in

of not less next senior Judges: relation to a

than two- (4) A Judge Judges: resolution under Provided that thirds of may resign Provided that clause (2) and if, at any time, the total his office by if, at any for investigation the Council is number of writing under time, the and proof of the inquiring into members his hand Council is misbehaviour or the capacity or of addressed to inquiring into incapacity of a conduct of a The Law Messenger 326 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Parliamen the President. the capacity Judge who is a Judge. t, on the or conduct of member of the 96 ground of a judge who Council, or a (contd.) proved is a member member of the (4) A Judge may misbehavi of the Council is resign his office

our or Council, or a absent or is by writing under incapacity member of unable to act his hand addressed to the . the Council is due to illness absent or is or other cause, President.

unable to act the Judge who (3) due to illness is next in Parliamen or other seniority to t may by cause, the those who are law Judge who is members of the regulate next in Council shall

the seniority to act as such procedure those who are member. in relation members of

to a the Council resolution shall act as (4) The under such member. Function of the

clause (2) Council shall (4) The and for be – functions of investigati the Council (a) to prescribe on and shall be – a Code of proof of Conduct to be the (a) to observed by The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 327 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

misbehavi prescribe a the Judges; and our or Code of (b) to inquire incapacity Conduct to be into the of a observed by capacity or Judge. the Judges; conduct of a and (4) A Judge or of any

Judge may (b) to inquire other resign his into the functionary office by capacity or who is not writing conduct of a removable under his Judge or of from office hand any other except in like addressed functionary manner as a to the who is not Judge. President. removable

from office

except in like (5) Where, manner as a upon any Judge. information

received from

the Council or (5) Where, from any other 96 upon any source, the (contd.) information President has received from reason to

the Council or apprehend that from any The Law Messenger 328 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

other source, a Judge – the President (a) may have has reason to ceased to be apprehend capable of that a Judge— properly (a) may have performing the

ceased to be functions of his capable of office by properly reason of performing physical or the functions mental of his office incapacity, or by reason of (b) may have physical or been guilty of mental gross incapacity, or misconduct, (b) may have the President

been guilty of may direct the gross Council to misconduct, inquire into the

the President matter and may direct the report its Council to finding.

inquire into (6) If, after the matter and making the report its inquiry, the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 329 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

finding. Council reports to the President

that in its (6) If, after opinion the making the judge has

inquiry, the ceased to be Council capable of reports to the properly President that performing the in its opinion functions of his the Judge has office or has ceased to be been guilty of capable of gross properly misconduct, performing the President

the functions shall, by order, 96 of his office remove the or has been Judge from (contd.) guilty of gross office. misconduct,

the President shall, by (7) For the order, remove purpose of an the Judge inquiry under from office. this article, the Council shall

regulate its

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(7) For the procedure and purposes of shall have, in an inquiry respect of issue under this and execution of processes, article, the the same power Council shall as the Supreme regulate its Court. procedure and shall have, in respect of (8) A Judge issue and may resign his execution of office by processes, the writing under same power his hand as the addressed to Supreme the President. Court.

(8) A Judge may resign his office by writing under his hand addressed to the President. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 331 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

98 Notwithst Notwithstandi Notwithstandi Notwithstandin anding the ng the ng the g the

provisions provisions of provisions of provisions of of article article 94, if article 94, if article 94, if 94, if the the President the President the President is

President is satisfied is satisfied satisfied that 98 is that the that the the number of (contd.) satisfied, number of the number of the the Judges of a after Judges of a Judges of a division of the consultati division of the division of the Supreme Court on with Supreme Supreme should be for the Chief Court should Court should the time being Justice, be for the be for the increased, the that the time being time being President may number of increased, the increased, the appoint one or

the Judges President may President may more duly of a appoint one or appoint one or qualified division more duly more duly persons to be

of the qualified qualified Additional Supreme persons to be persons to be Judges of that Court Additional Additional division for

should be Judges of that Judges of that such period not for the division for division for exceeding two time being such period such period years as he

increased, not exceeding not exceeding may specify, the two years as two years as or, if he thinks President he may he may fit, may require

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may specify, or, if specify, or, if a Judge of the appoint he thinks fit, he thinks fit, High Court

one or may require a may require a Division to sit more duly Judge of the Judge of the in the qualified High Court High Court Appellate

persons to Division to sit Division to sit Division for be in the in the any temporary Additional Appellate Appellate period: Judges of Division for Division for

that any any division temporary temporary Provided that for such period: period as an nothing in this period not ad hoc Judge article shall

exceeding and such prevent a two years Provided that Judge while person

as he may nothing in this so sitting, appointed as an specify, article shall shall exercise Additional or, if he prevent a the same Judge from

thinks fit, person jurisdictions, being may appointed as powers and appointed as a require a an Additional functions as a Judge under

Judge of Judge from Judge or the article 95 or as the High being Appellate an Additional Court appointed as a Division: Judge for a

Division Judge under further period Provided that to sit in article 95 or under this nothing in this the as an article. article shall The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 333 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

98 Appellate Additional prevent a (4th Division Judge for a person Amendment (contd.) for any further period appointed as position temporary under this an Additional retained). period: article. Judge from being

appointed as a Provided Judge under that article 95 or nothing in as an this article Additional shall Judge for a prevent a further period person under this appointed article. as an

Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for

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a further period under this article.

99 A person (1) Except as (1) Except as (1) A person who has provided in provided in who has held

held office clause (2), a clause (2), a office as a as a Judge person who person who has Judge (otherwise has held held office as a (otherwise than

than as an office as a Judge as an Additional Judge otherwise than Additional Judge otherwise as an Judge pursuant pursuant than as an Additional to the to the Additional Judge shall not, provisions of provisions Judge shall after his article 98), of article not, after his retirement or shall not, after 98) shall retirement or removal his retirement not after removal therefrom, or removal his therefrom, plead or act therefrom,

retirement plead or act before any plead or act or before any court or before any removal court or authority or court or

therefrom authority or hold any office authority or plead or hold any of profit in the hold any office act before office of service of the of profit in the

any court profit in the Republic not service of the or service of the being a judicial Republic not The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 335 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

authority, Republic not or quasi- being a judicial or be being a judicial office or quasi-

eligible judicial or or of the Office judicial office. for any quasi-judicial of Chief

appointme office. Adviser or 99 nt in the Adviser. (2)

(contd.) service of Notwithstandin

the (2) A persons g anything Republic. who has held (2) A persons contained in office as a who has held clause (1), a Judge of the office as a person who has High Court Judge of the held office as a Division may, High Court Judge of the after his Division may, High Court retirement or after his Division may, removal retirement or after his therefrom, removal retirement or plead or act therefrom, removal before the plead or act therefrom, Appellate before the plead or act Division. Appellate before the Division. Appellate Division.

100 The (1) Subject to The permanent permanent this article, seat of the

seat of the the permanent Supreme Court Supreme seat of the shall be in the The Law Messenger 336 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Court Supreme capital, but shall be in Court shall be sessions of the

the in the capital. High Court capital, Division may

but be held at such

sessions (2) The High other place or of the Court places as the Division and High Chief Justice Court the Judges may, with the Division thereof shall approval of the may be sit at the President from held at permanent time to time such other seat of the appoint. place or Supreme places as 100 Court and at the Chief the seats of its Justice (contd.) permanent may, with Benches. the approval of the (3) The High President, Court

from time Division shall to time have a appoint. permanent

Bench at Barisal, The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 337 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Chittagong, Comilla,

Jessore, Rangpur and Sylhet, and

each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.

(4) A

permanent Bench shall consist of

such number of Judges of the High

Court Division as the Chief

Justice may deem it The Law Messenger 338 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

necessary to nominate to

that Bench from time to time and on

such nomination the Judges shall be 100 deemed to (contd.) have been transferred to that Bench.

(5) The President shall, in

consultation with the Chief Justice, assign

the area in relation to which each

permanent Bench shall have

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jurisdictions, powers and

functions conferred or that may be

conferred on the High Court Division by this Constitution or any other law: and the area not so assigned shall

be the area in relation to which the

High Court Division sitting at the

permanent seat of the Supreme

Court shall have such jurisdictions,

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powers and functions.

100 (6) The Chief (contd.) Justice shall make rules to provide for all incidental, supplemental or consequential matters relating to the permanent Benches.

101 The High The High The High Court Court Court Division Division Division shall shall have such shall have have such original, such original, appellate and original, appellate and other appellate other jurisdictions and other jurisdictions, and powers as jurisdictio powers and are conferred ns and functions as on it by this powers as are or may be Constitution or The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 341 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

are conferred on any other law. conferred it by this

on it by Constitution this or any other Constituti law. on or any other law.

102 (1) The (1) The High (1) The High (1) The High High Court Court Court Division,

Court Division may, Division on on the Division, if satisfied the application of on the that no other application of any person

applicatio equally any person aggrieved, may n of any efficacious aggrieved, give such person remedy is may give such directions or aggrieved, provided by directions or orders to any may give law - orders to any person or such person or authority, (a) on the directions authority, including any application of or orders including any person any person to any person performing any aggrieved, person or performing function in make an order authority, any function connection – including in connection with the affairs any (i) directing a with the of the

person person affairs of the Republic, as performin performing Republic, as may be The Law Messenger 342 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

g any any functions may be appropriate for function in connection appropriate the

in for the enforcement of with the connectio enforcement any ofthe affairs of the n with the of any of the fundamental Republic or of affairs of fundamental rights a local the rights conferred by authority, to Republic, conferred by Part III of this refrain from as may be Part III of this Constitution. doing that appropriat Constitution. which he is (2) The High e for the not permitted (2) The High Court Division enforceme by law to do Court may, if nt of any or to do that Division may, satisfied that of the which he is if satisfied no other fundament required by that no other equally al rights law to do; or equally efficacious conferred efficacious remedy is by Part III (ii) declaring remedy is provided by of this that any act provided by law – Constituti done or law – on. proceeding (a) on the

taken by a (a) on the application of

person application of any person (2) The performing any person aggrieved,

High functions in aggrieved, make an order Court connection make an order – Division with the – (i) directing a The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 343 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

may, if affairs of the (i) directing a person satisfied Republic or of person performing any

that no a local performing functions in 102 other authority has any functions connection equally been done or in connection with the affairs (contd.) efficaciou taken without with the of the Republic s remedy lawful affairs of the or of a local is authority, and Republic or of authority, to provided is of no legal a local refrain from by law – effect; or authority to doing that refrain from which he is not (a) on the (b) on the doing that permitted by applicatio application of which he is law to do or to n of any any person, not permitted do that which person make an order by law to do he is required aggrieved, – or to do that by law to do; make an (i) directing which he is or order – that a person required by (ii) declaring (i) in custody be law to do; or that any act directing a brought (ii) declaring done or person before it so that any act proceeding performin that it may done or taken by a g any satisfy itself proceeding person functions that he is not taken by a performing in being held in person functions in connectio custody performing connection n with the without functions in with the affairs The Law Messenger 344 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

affairs of lawful connection of the Republic the authority or in with the or of a local

Republic an unlawful affairs of the authority, has or of a manner; or Republic or of been done or local a local taken without (ii) requiring authority, authority has lawful a person to refrain been done or authority and is holding or from taken without of no legal purporting to doing that lawful effect; or hold a public which he authority and office to show (b) on the is not is of no legal under what application of permitted effect; or authority he any person, by law to claims to hold (b) on the make an order do or to that office. application of – do that any person, which he (2) (i) directing make an order is required Notwithstandi that a person in – by law to ng anything custody be

do; or contained in (i) directing brought before clause (1), the that a person it so that it may (ii) High Court in custody be satisfy itself declaring Division shall brought that he is not that any have no before it so being held in act done power under that it may custody 102 or this article to satisfy itself without lawful proceedin (contd.) make an that he is not authority or in g taken by interim order being held in a unlawful a person The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 345 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

performin or to pass any custody manner; or g order in without (ii) requiring a functions relation to any lawful person holding in law to which authority or in or purporting connectio article 47 an unlawful to hold a public n with the applies. manner; or office to show affairs of under what the authority he Republic (3) In this (ii) requiring claims to hold or of a article, unless a person that office. local the context holding or authority otherwise purporting to (3) has been requires, hold a public Notwithstandin done or “person” office to show g anything taken includes a under what contained in

without statutory authority he the forgoing lawful public claims to hold clauses, the authority, authority and that office. High Court

and is of any court or Division shall

no legal tribunal, other have no power effect; or than a court (3) under this

or tribunal Notwithstandi article to pass (b) on the established ng anything any interim or applicatio under a law contained in other order in n of any relating to the the forgoing relation to any person, defence clauses, the law to which make an services of High Court article 47

The Law Messenger 346 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

order – Bangladesh or Division shall applies. any have no (i) (4) Whereon an disciplined power under directing application force or a this article to that a made under tribunal to pass any person in clause (1) or which article interim or custody be sub-clause (a) 117 applies. other order in brought of clause (2), relation to any before it an interim law to which so that it order is prayed article 47 may for and such applies. satisfy interim order is itself that likely to have he is not the effect of – (4) Whereon being held an application (a) prejudicing in custody or interfering without made under with any lawful clause (1) or measure 102 authority sub-clause (a) designed to or in an of clause (2), (contd.) implement any unlawful an interim socialist manner; order is programme, or or prayed for any and such (ii) development interim order requiring work; or is likely to a person have the (b) being holding or otherwise The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 347 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

purporting effect of – harmful to the to hold a public interest, (a) public the High Court prejudicing or office to Division shall interfering show not make an with any under interim order measure what unless the designed to authority Attorney- implement he claims General has any to hold been given development that reasonable programme, office. notice of the or any application and development he (or an work; or (3) advocate

Notwithst (b) being authorised by anding otherwise him in that anything harmful to the behalf) has

contained public been given an in the interest, the opportunity of forgoing High Court being heard,

clauses Division shall and the High the High not make an Court Division Court interim order is satisfied that

Division unless the the interim shall have Attorney – order would no power General has not have the

The Law Messenger 348 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

under this been given effect referred article to reasonable to in sub-clause

pass any notice of the (a) or sub- order in clause (b). application relation to and he (or an (5) In this any law to advocate article, unless which authorised by the context article 47 him in that otherwise applies. behalf) has requires, been given an “person” opportunity of includes a (4) being heard, statutory public 102 Whereon and the High authority and an (contd.) Court any court or applicatio Division is tribunal, other n made satisfied that than a court or under the interim tribunal clause (1) order would established or sub- not have the under a law clause (a) effect referred relating to the of clause to in sub- defence (2), an clause(a) or services of interim sub-clause Bangladesh or order is (b). any disciplined prayed for force or a and such (5) In this tribunal to interim article, unless the context which article The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 349 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

order is otherwise 117 applies. likely to requires, have the “Person” effect of– includes a statutory (a) public prejudicin authority and g or any court or interfering tribunal, other with any than a court measure or tribunal designed established to under a law implement relating to the any defence socialist services of programm Bangladesh or e, or any any developm disciplined ent work; force or a or tribunal to (b) being which article otherwise 117 applies. harmful to

the public interest, the High

The Law Messenger 350 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Court Division shall not make an interim order unless the Attorney- General has been given reasonable notice of the applicatio n and he (or an advocate authorised by him in that behalf) has been given an opportunit y of being heard, and

The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 351 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

the High Court Division is satisfied that the interim order would not have the effect referred to in sub- clause (a) or sub- clause (b).

(5) In this article, unless the context otherwise requires, “Person” includes a statutory public

The Law Messenger 352 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

authority and any court or tribunal, other than a court or tribunal establishe d under a law relating to the defence services of Banglades h or a tribunal to which article 117 applies.

107 (1) (1) Subject to ... (1) Subject to Subject to any law made any law made (3) Subject to any law by Parliament by Parliament any rules made by the Supreme the Supreme made under Parliamen Court may, Court may, this article the t the with the with the Chief Justice Supreme approval of approval of the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 353 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

Court the President, shall President, may, with make rules for determine make rules for

the regulating the which judges regulating the approval practice and are to practice and of the procedure of constitute any procedure of

President, each division Bench of a each division make of the division of the of the Supreme Supreme rules for Supreme Court and of regulating Court and of Court or any any court the any court Bench of a subordinate to practice subordinate to permanent it. and it. Bench of the

procedure High Court

of each Division (2) The division (2) The referred to in Supreme Court

of the Supreme clause (3) of may delegate Supreme Court may article 100 any of its Court and delegate any and which functions under

of any of its judges are to clause (1) and court functions sit for any article 113 and subordinat under clause purpose. 116 to a

(1) and article division of that e to it. 113 to a Court or to one

division of or more judges.

(2) The that Court or (3) Subject to Supreme to one or any rules made Court may more judges. under this The Law Messenger 354 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

delegate article the any of its Chief Justice (3) Subject to functions shall determine any rules under which judges made under clause (1) are to this article the and article constitute any Chief Justice 113, 115 Bench of a shall and 116 to division of the determine a division Supreme Court which judges of that and which are to Court or judges are to constitute any to one or sit for any Bench of a more purpose. division of the judges. Supreme Court and (4) The Chief which judges 107 (3) Justice may are to sit for Subject to authorise the (contd.) any purpose. any rules next most made senior judge of (4) The Chief under this either division Justice may article the of the Supreme authorise the Chief Court to next most Justice exercise in that senior Judge shall division any of of either the powers determine division of the conferred by which Supreme The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 355 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

judges are Court to clause (3) or by to exercise in rules made constitute that division under this any Bench any of the article. of a powers

division conferred by of the clause (3) or Supreme by rules made Court and under this which article. judges are to sit for any purpose.

(4) The Chief Justice may authorise the next most senior judge of either division

The Law Messenger 356 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.

115 (1) Appointments Appointm of persons to

ents of offices in the persons to judicial offices in service or as the judicial magistrates service or exercising as judicial magistrate functions s shall be made exercising by the judicial President in The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 357 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

functions accordance shall be with rules

made by made by him the in that behalf. President —

(a) in the (This article case of is still in district force) judges, on

the recommen dation of 115 the (contd.) Supreme Court; and (b) in the case of any other person, in accordanc e with rules made by the President in that behalf after consulting The Law Messenger 358 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

the appropriat e public service commissi on and the Supreme Court. (2) A person shall not be eligible for appointme nt as a district judge unless he – (a) is at the time of his appointme nt in the service of the Republic and has, for not less than The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 359 Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

seven years, held judicial office in that service; or (b) has for not less than ten years been an advocate.

116 The The control The control The control control (including the (including the (including the power of (including power of power of posting, the power posting, posting, promotion and of posting, promotion promotion grant of leave) promotion and grant of and grant of and discipline and grant leave) and leave) and of persons employed in of leave) discipline of discipline of the judicial and persons persons service and

discipline employed in employed in magistrates 116 of persons the judicial the judicial exercising employed service and service and judicial (contd.) in the magistrates magistrates functions shall vest in the judicial exercising exercising President and service judicial judicial The Law Messenger 360 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Preamble/ 1972 4th Amendment 5th Amendment 7th Amendment 8th Amendment 13th Amendment 14th Amendment 15th Amendment 16th Amendment Articles

and functions functions shall be magistrate shall vest in shall vest in exercised by him in s the President. the President consultation exercising and shall be with the judicial exercised by Supreme functions him in Court. shall vest consultation (5th in the with the Amendment Supreme Supreme Position Court. Court. retained)

116A Subject to the provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.

Note: No changes were made to Articles 94, 97, 103-106, 108 and 110-112. Changes made to Articles 109 and 113-114 are not relevant for this discussion. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 361 112. Mr. Mahbubey Alam, and Mr. Murad for removal process and what safeguards such Reza submitted that the Sixteenth Amendment bodies would adopt to ensure fairness should will not in any way curtail the independence of be addressed by Parliament in the first instance judiciary; rather this amendment has restored as it is the body which has the constitutional the original article 96. They add that the mandate to legislate for these issues. constitution is for the people so it should meet 114. The points raised by the learned the needs of the people, and therefore, it counsel appear to be subtle in nature, though upholds the rule of law. In elaborating their not novel. Such questions require to be submissions, they argue that article 7 provides examined in a broad range of issues keeping in that all powers belong to the people and obviously it includes all the institutions view the law, philosophy, political theory, including the judiciary, and therefore, the constitutional theory and the spirit of natural consequence is that all institutions and constitutionalism. As mentioned earlier, a very all its’ functionaries whoever they might be, onerous responsibility is reposed upon the are answerable and accountable to the people. Supreme Court by the constitution itself. The If any one denies this fact, it is his constitution has deliberately conferred the apprehension, but the independence of power of judging any dispute on the highest judiciary being a basic feature of the court to stress the obvious that the fount of constitution, this amendment will secure the justice under the constitution is the apex court independence of judiciary. They further add of the country. When some enacted law diverts that the sovereignty of the people is also a basic the true course of justice, power is vested in the feature of the constitution, which is superior Supreme Court and the Supreme Court alone is most amongst all basic features, inasmuch as, competent under the constitutional mandate to the people do not belong to the judiciary- the make such orders as are necessary for doing judiciary belongs to the people, and therefore, justice. Judiciary is answerable to the people. 115. I have already reproduced the changes 113. Mr. Ajmalul Hossain while supporting made in the constitution in the preamble, the above submissions adds that the procedure articles 7A, 7B, (addition), 47, 47A (addition), or mechanism by which Judges of the higher article 95 by the Fourth Amendment, Fifth judiciary can be removed depends upon a Amendment and Fifteenth Amendment. So far fundamental question about what the procedure as article 95 is concerned, after a long journey, and mechanism is. According to him, the it has reached its position by Fifteenth procedure and mechanism must be made by the Amendment in 2011. Similarly article 96 has Legislature. He further adds that the rules of natural justice raises the basic indisputable been amended by the Fourth Amendment, Fifth question— “can the judiciary be a Judge of his Amendment, Seventh Amendment, Fourteenth own cause?” and since the judiciary has an Amendment, Fifteenth Amendment and interest in the matter, it cannot be left with the Sixteenth Amendment. In the Seventh judiciary. He further submits that this Amendment the retirement age of the Judges amendment has simply brought the constitution was increased to 65 years from 62 years and in to its original provision as was proposed by the the Fourteenth Amendment retirement age was Constituent Assembly in 1972. He finally increased to 67 years and in the Fifteenth submits that which body should be responsible Amendment it has been retained. The Law Messenger 362 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 116. Under the original provision of article Salim, Advocate Rahmat Ali, Syed Ashraful 96, it was provided that a Judge shall be Islam, Advocate Fazley Rabbi Miah, Abdul removed from his office by the President Matin Khashru, Rashed Khan Manon, Hasanul pursuant to a resolution of Parliament Huq Enu, Anisul Islam Mahmood, Dr. Hasan supported by two-third majority of the total Mahmood and Shirin Sharmin Chowdhury as number of members on the ground of proved members. In the said special committee, the misbehaviour or incapacity. This provision has retention of clauses (2) to (7) of article 96 was been done away with in the Fourth Amendment discussed, and the special committee then and this power was given upon the President to discussed the matter with the Prime Minister. exercise on the ground of misbehaviour or In the said discussion, the Prime Minister said: incapacity of a Judge by affording him with an ‘ ¢hQ¡l ¢hi¡N HMe pÇf§ZÑ ü¡d£ez ü¡d£e ¢hQ¡l ¢hi¡•Nl opportunity of showing cause. Mr. Attorney Efl ®L¡e dl•el qÙ¹•rf Ll¡ k¡•h e¡z k¢cJ 27®n H¢fËm General submits that the change has been made ¢h­no L¢j¢Vl p­‰ ®~hWL ®n­o I¢cb ¢h•L•m NZih•e ¢a¢e due to the fact that under the Fourth ®k pwh¡c p•Çjme L•le, ®pM¡•e ¢hQ¡lf¢a•cl Awfksm‡bi Amendment the system of the government was rja¡ pwp•cl Efl eÉÙ¹ b¡L¡ E¢Qa h•m ja ¢c•u¢R•mez’ changed and a presidential form of government In support of his contention, he has produced was introduced, and therefore, the power of the extracts of a book under the name removal was given upon the President. I find ‘pw¢hd¡­el f’cn pw­n¡de£ B­m¡Qe¡-aLÑ-¢haÑL’ fallacy in his submission. In any event, this edited by Ameen-R-Rashid. provision for removal of Judges was changed 118. Mr. Attorney General has strongly in the Fifth Amendment providing a disputed this paper and submitted that the mechanism of Supreme Judicial Council and it learned counsel has placed an unauthentic has been retained in the Fifteenth Amendment. paper. However, the learned Attorney General In this connection, learned Attorney General has produced a copy of the same book and at submits that in the Fifteenth Amendment the pages 85 and 86, similar statements have been Parliament would have restored the original mentioned, and therefore, it cannot be said that provision but as the amendment was made the copy submitted by Mr. Manzil Morshid is hastily, it was totally overlooked by the Law not an authentic one. Minister. He further submitted that there was no discussion about retaining clauses (2) to (7) 119. Whether the question of removal of of article 96 in the Fifteenth Amendment, and Judges by the Parliament was discussed in the therefore, it cannot be said that in the Fifteenth special committee constituted for Fifteenth Amendment, the Supreme Judicial Council Amendment or not is not an issue in this mechanism has been retained by the matter. Fact remains that this provision has Parliament. been retained in the Fifteenth Amendment 117. Mr. Manzill Murshid in this although in that amendment various provisions connection submits that before the Fifteenth of the constitution namely, the preamble, Amendment, a special committee was articles 2A, 4A, 6, 8, 9, 10, 12, 47, 42, 25, constituted with the Deputy Leader of 19(3), 65, 66, 72, 80, 82, 88, 93, 118, 122, 123, Parliament Sayeda Sajeda Chowdhury as 125, 139, 141A, 147, 153, Third Schedule and chairperson and Suranjit Sen Gupta as co- the Fourth Schedule were amended, and chairperson, with Amir Hossain Amu, Abdur articles 7A, 7B, 18A, 23A, 65(3), 65(3A), 66(e) Razzaque, Tofail Ahmed, Shikh Fazlul Karim were added and articles 4A, 6, 9, 12, 38, 44, 61, The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 363 70, Chapter I of Part VI relating to Supreme 122. Therefore, I find no merit in the Court articles 142, 145A, 150, and Chapter IIA contention of the learned Attorney General that Non-Party Care-Taker Government were as the amendment was made hurriedly, the deleted. amendment of article 96 was left out through oversight by the Law Minister. It is to be noted 120. By way of addition, alteration and that in a democratic country and under a deletion, as evident from the book supplied by written constitution, an amendment is made by the learned Attorney General, the special the Parliament and not by the Law Minister. committee not only thoroughly considered the Admittedly a constitution amendment provisions as to which should be retained and committee was constituted and the said which should not be, but also took opinion of committee discussed with various segments of Barrister Rafiqul Huq, Attorney General the people including the constitutional experts. Mahbubey Alam, Justice Syed Amirul Islam, The committee took one year in finalising the Barristers Taufique Newaz and Sheikh Fazlay Noor Taposh on 23 September, 2010. On 12th amendment and therefore, it is not correct to October, 2010, the committee sat with Justice say that this omission was unintentional. Syed Amirul Islam, Barrister Rafiqul Huq, Mr. 123. It is contended by learned Attorney Mahmudul Islam, Dr. M. Zahir, Mr. Ajmalul General, learned Additional Attorney General Hossain, Barristers Taufique Newaz and and Mr. Ajmalul Hossain that in the Fifth Sheikh Fazlay Noor Taposh. On 15th March, Amendment case, there was condonation of 2011, the committee discussed with Dipongkar clauses (2) to (7) of article 96 and in the review Talukder, Promodh Malkin, Jotindra Lal petition, this court provisionally condoned Tripura and Athine Rakhine. It was pointed out those provisions in order to avoid disastrous that the Prime Minister had discussed with the consequence, and therefore, this provision has special committee on 11th, 12th and 13th neither been acquiesced by the Parliament nor meetings. by this court. On the other hand, Mr. Manzill 121. In the end, the Fifteenth Amendment Murshid and other learned Amici submitted was published in the official gazette on 3rd July, that this court in the Fifth Amendment case has 2011. The special committee took about one approved clauses (2), (3), (4), (5), (6) and (7) of year in finalizing the amendment. Therefore, article 96 substituted by the Second we find substance in the submission of Mr. Proclamation (Tenth Amendment) Order, 1977 M.I. Farooqui that the Parliament by the providing the procedure for removal of Judges Constitution Fifteenth Amendment substituted of the Supreme Court by the Supreme Judicial the entire Chapter on the Supreme Court Council in the manner provided therein instead particularly retaining the old article 96. Mr. of earlier method of removal. Farooqui’s submission lends support from the 124. This court while condoning these amending Act itself. In section 31 of the clauses of article 96 in the Fifth Amendment Fifteenth Amendment Act, it is stated case observed that the ‘substituted provisions “pw¢hd¡•el 96 Ae¤•µR•cl f¢lh•aÑ ¢ejÀl©f 96 Ae¤•µRc being more transparent procedure than that of fË¢aÙÛ¡¢fa qC•h kb¡,..” that is to say, the the earlier ones and also safeguarding Parliament substituted clauses (2) to (7) of independence of judiciary, …..” The language article 96 verbatim which was inserted by the used therein is so clear and unambiguous that Constitution Fifth Amendment. this court saved clauses (2), (3), (4), (5), (6) The Law Messenger 364 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) and (7) of article 96 not only for the interest of and after independence; Bangladesh also justice, but also for the independence of retained this law. In the preamble of this judiciary on assigning reasons. The word Ordinance, it is clearly mentioned – ‘condone’ according to the Chamber’s “WHEREAS it is expedient to give effect to Dictionary, 10th Edition, is to forgive; to pass certain recommendations of the Commission of over without blame; overlook intentionally; to Marriage and Family laws; excuse. According to Concise Oxford English Dictionary, 10th Edition, the word ‘condone’ Now THEREFORE, in pursuance of the includes accept or forgive; approve or sanction, Proclamation of the seventh day of October, especially reluctantly. Therefore, the meaning 1958, and in exercise of all powers enabling of the word ‘condone’ also extends to him in that behalf, the President is pleased to ‘approval’ or ‘acceptance’. So, this court make and promulgate to following the willingly and carefully approved these clauses Ordinance: ……..” to be retained in article 96 for the interest of Similarly the citizenship of the people justice, particularly for the independence of judiciary on the reasoning that these provisions contained in article 6 of the constitution as are more transparent procedures than the earlier “Bangladeshi” was amended by the Fifth ones. That is to say, the procedure entailed in Amendment and it has been retained in the the Supreme Judicial Council is more in Fifteenth Amendment. In the original 1972 consonance with the spirit of our constitutional constitution this article read thus: scheme. Accordingly, this court approved the “6. The citizenship of Bangladesh shall be amendment by assigning reasons. We hold the determined and regulated by law. view that by the impugned amendment, the (2) The people of Bangladesh shall be known independence of judiciary has been undermined as Bangalees.” and curtailed by making the judiciary vulnerable to a process of removal by the During the Martial Law regime, this article Parliament. was amended through Proclamation Amendment Order, 1977 (Proclamation Order 125. In this connection, learned Attorney No.1 of 1977). In 2011 by the Fifteenth General has given emphasis that a martial law Amendment it has been amended in the provision should not be kept and preserved in a following terms: document like the constitution particularly when the court itself has not permanently “6. The citizenship of Bangladesh shall be condoned it. We are not persuaded by the determined and regulated by law. submission of the learned Attorney General, (2) The people of Bangladesh shall be known firstly, because it is not the only martial law as Bangalees as a nation and the citizens of provision, which has been approved by this Bangladesh shall be known as Bangladeshies.” court. Secondly, this is not the only provision 126. The latest amendment to the article 6 that has been kept verbatim in the constitution. in 2011 was brought by a democratic regime The Muslim Family Laws Ordinance, 1961, and what we see in clauses (2) of article 6 is which came into force on 2nd March, 1961 was that a substantial provision introduced by the also promulgated by the martial law regime of martial law government in 1977 has been kept Pakistan. This law had been retained by alive in the constitution. More so, by the Pakistan after the withdrawal of Martial Law Second Proclamation (Tenth Amendment) The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 365 order, 1977, the Supreme Court was again most of the provisions that were inserted by the made to ‘consist of the Appellate Division and martial law authority, it kept the religious the High Court Division with effect from invocation [BISMILLAH-AR-RAHMAN-AR- December, 1, 1977...... ’, and by the RAHIM (In the name of Allah, the Beneficent, Proclamations (Amendment) Order, 1977, the Merciful)] at the top of preamble. It was a clause (2) of article 42 and Proviso to clause compromise with the martial law proclamation (2) of article 47, and the words “Parliament so far as the religion was concerned. stands dissolved or is not in session” were 128. Being in line with the addition made added in article 93(1). All these martial law by the Proclamations (Amendment) Order, authority’s amendments to the constitution 1977 (Proclamation Order No.1 of 1977) in the have been retained by the constitution Fifteenth preamble, another military ruler passed the Amendment. Constitution (Eight Amendment) Act, 1988 in a 127. Learned Attorney General raised two rubber stamp Parliament on June 9, 1988. The points. First, in our constitution, which was Eight Amendment incorporated fundamental written with the blood of the martyrs, should changes in the constitution by incorporating a not retain any traces of martial law regime. new clause as article 2A. This new article Second, the Parliament has restored the introduced Islam as the State religion, which provisions of original constitution regarding the was not in the 1972 constitution. Introduction Judges removal mechanism. Both the points are of State religion was also in direct conflict with fruitless, inasmuch as, one of the high ideals “secularism,” which was one of the behind our liberation struggle was to establish a fundamental principles of State policy in the society in which communality and segregation, 1972 constitution. Despite the Parliament based on religion, will have no place. The revived “secularism” as one of the fundamental lifelong political struggle of Bangabandhu also principles of State policy by passing the essentially epitomised him as a gladiator for Constitution (Fifteenth Amendment) Act, 2011, establishing equal rights and equal recognition it retained article 2A. of all faiths and their followers. This notion of 129. Thus, as has been shown above, in non-segregation and non-communality worked order to cope with the religious sentiment, an as momentum for our liberation struggle. In the element (religious invocation), which directly preamble, it was clearly spelt out that the high goes against the spirit and aspiration of our ideals of nationalism, socialism, democracy liberation war and which was inserted in the and secularism shall be the fundamental constitution by a martial law regime in 1979, principles of the constitution. But by the was retained and legalised by the Parliament Proclamations (Amendment) Order, 1977 through the Constitution Fifteenth Amendment. (Proclamation Order No.1 of 1977), the Thereby, the principle of secularism was totally following words were added to the beginning compromised and thus buried the spirit of of the preamble, namely, “BISMILLAH-AR- original constitution and liberation war, as was RAHMAN-AR-RAHIM (In the name of Allah, espoused in the 1972 constitution. the Beneficent, the Merciful).” In 2011, the Parliament brought Fifteenth Amendment to 130. Likewise, the following amendments the constitution and made various significant made by the martial law regime through the and conspicuous changes. Although the Proclamations (Amendment) Order, 1977 Fifteenth Amendment abolished or substituted (Proclamation Order No. 1 of 1977), which The Law Messenger 366 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) were not in the 1972 constitution, were retained But he seems to have no answer about retaining by the Parliament through the Constitution and regularizing the martial law provisions of (Fifteenth Amendment) Act, 2011, which may the Muslim Family Laws Ordinance, articles 6, read thus: 42, 47 etc, in the constitution as shown above. [In Article 42, for clause (2) the 133. In fact, this discussion is a bit following shall be substituted, namely: - tautological yet it demands a clarification. In “(2) A law made under clause (I) shall the first place, I am absolutely in agreement provide for the acquisition, with the learned Attorney General’s submission nationalisation or requisition that a provision added by a martial law Compensation and shall either fix the government cannot be placed in our hard- amount of compensation or specify the earned constitution, but a provision which in principles on which, and the manner in content and spirit is absolutely in harmony with which, the compensation is to be the scheme of the constitution and was assessed and paid; but no such law shall incorporated in the body of the constitution by a democratic government and competent be called in question in any court on the Parliament by way of amendment cannot be ground that any provision of the law in declared all on a sudden as conflicting only respect of such compensation is not because the text of the provision is similar adequate.” verbatim with the provision that was devised In article 47, in clause (2), for the by a martial law regime. The submission of the provision the following shall be learned Attorney General contains exactly this substituted, namely: - missing perspective. He is very much aware ‘Provided that nothing in this article that repealed article 96 is the exact resemblance shall prevent amendment, modification of the martial law provision, but his over or repeal of any such law.’ emphasis on this point is making his vision blurred to see clearly that article 96 has been 131. These changes were included under unequivocally approved by the Fifth sections 17, 19, 35, 39 and 40 of the Amendment Judgment considering this Constitution (Fifteenth Amendment) Act, 2011, provision a relatively far better safeguard for and the Parliament retained these provisions, the independence of the higher judiciary and even though those were not in the original related constitutional posts. constitution. 134. In Asma Jilani V. The Government of 132. Point to be noted here is that by the Punjab, PLD 1972 SC 139, Hamoodur same amendment, i.e. the Fifteenth Rahman, CJ. though declared all Martial Law Amendment, like article 6, article 96 was also Regulations, Martial Law Proclamations and regularized and incorporated in the constitution Orders illegal, the court approved the views by the same democratic government in 2011. taken in the case of The Attorney General of But now Mr. Attorney General wants to the Republic V. Mustafa Ibrahim, 1964 CLR highlight an exception by saying that the 195 observing that ‘if it can be shown that it provision of the repealed article 96 was an act was enacted only in order to avoid of martial law and thus it should not have any consequences which could not otherwise be place in a democratic constitution like ours. avoided, and which if they had followed, would The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 367 have inflicted upon the people of Cyprus, Declaration) Act, 1973. In this Act in section 6, whom the Executive and Legislative organs of it is said, all Acts of Parliament, Ordinances the Republic are bound to protect, inevitable and President’s Order in force in Bangladesh irreparable evil; and furthermore if it can be shall be printed in chronological order under shown that no more was done than was the name and style of the Bangladesh Code. reasonably necessary for that purpose, was not The Muslim Family Laws Ordinance is still in disproportionate to the evil avoided’, the force though it was promulgated by Pakistani Supreme Court thought it was its duty to do in military junta. Besides, in the Fifth view of its “all important and responsible Amendment case, this court also condoned the function of transmitting legal theory into living substituted provision of article 6 of the law, applied to the facts of daily life for the constitution by Proclamation No.1 of 1977 in preservation of social order.” His Lordship then place of the word “Bangalees” the word opined that recourse has to be taken to the ‘Bangladeshis’. The substituted provision of ‘doctrine of necessity where ignoring of it article 6 of the constitution, by the Martial Law would result in disastrous consequences to the Proclamation regarding the status of the body politic and upset the social order....’ The citizens as ‘Bangladeshis’ has been retained in Court then posed a question as to how many of the Fifteenth Amendment. the acts, legislative or otherwise, should be 136. In the dispensation of justice this court condoned or maintained, notwithstanding their being the guardian of the constitution has to illegality in the wider public interest. The court consider its onerous responsibility reposed called this ‘a principle of condonation and not upon it and with a view to avoiding anomaly legitimization.” Applying this test, the Supreme and also to preserve continuity, it felt the Court condoned: necessity of passing consequential orders. This “(1) all transactions which are past and Court kept in mind the doctrine of severability closed, for, no useful purpose can be to limit the application of judicial verdict and served by reopening them, (2) all acts observed that in doing so; the court can modify and legislative measures which are in or even dismantle a legislation in the interest of accordance with, or could have been justice. The court in such circumstances did not made under, the abrogated Constitution subscribe to the notions that all acts of the or the previous legal order, (3) all acts usurpers are illegal and illegitimate. The court which tend to advance or promote the took into consideration of the acts, things, good of the people, (4) all acts required legislative actions which are useful or which to be done for the ordinary orderly acts, things, deeds tend to advance or promote running of the State and all such the need of the people or all acts, things and measures as would establish or lead to deeds which are required to be done for the the establishment of, in our case, the ordinary functioning of the State or the acts, Objectives mentioned in the Objectives things, deeds and legislative matters which Resolution of 1954.” would augment the independence of judiciary and welfare of the people etc. This had been 135. The Muslim Family Laws Ordinance, done in Pakistan as well as in Bangladesh. 1961 was retained by the Bangladesh (Adaptation and Existing Laws) Order, 1972 137. Therefore, we are unable to accept the read with the Bangladesh Laws (Revision and emotional submission of the learned Attorney The Law Messenger 368 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) General regarding non-retention of a provision undoubtedly ensures the accountability of the of a martial law regime in the constitution. Judges to the people of Bangladesh. This forceful argument on behalf of the State for 138. In the Fifth Amendment case, this parliamentary removal method takes us to look court approved clauses (2), (3), (4), (5), (6) and at the systems prevailing in different countries (7) of article 96 for two reasons, firstly, it was around the globe. transparent procedure and secondly, if it was retained, it would safeguard the ‘independence 140. Mr. M. Amirul Islam, submits that the of judiciary’. Both sides admitted that the independence of judiciary depends not only independence of judiciary is one of the basic upon the provisions of removal, it is a features of the constitution. It is also admitted comprehensive process starting from (a) by both the parties that the basic features of the selection process and criteria for evaluation of constitution cannot be changed, altered or Judges to be selected followed by (b) security amended. Though this court held that this of tenure and (c) providing adequate provision had been retained for the emolument and providing procedure for independence of judiciary, it is contended on removal on proven misconduct with adequate behalf of the State that it is not a basic feature opportunity and participation for a Judge to of the constitution and that it has got nothing to defend his/her position before an independent do with the independence of judiciary. tribunal duly constituted under a law following international standard. In this connection, he 139. Mr. Ajmalul Hossain, the learned has taken us through the United Nations Basic Attorney General and the Additional Attorney Principles on the Independence of Judiciary, General submit that the fear of the judiciary 1985 which was adopted in order to assist about Parliament’s removal mechanism is member States in their task for securing and entirely unwarranted. Mr. Hossain adds that promoting the independence of the judiciary. there is no evidence before this court to infer Learned counsel has also taken us through the that this impugned amendment would curtail Latimer House Guidelines for the the independence of judiciary and that Commonwealth, 1998 and submits that apprehensions are based on conjectures and according to the Guidelines “jurisdictions surmises. It is the common submission of the should have an appropriate independent learned counsel that under article 7(1), all process in place for judicial appointments” and power of the Republic belongs to the people. that ‘In cases where a Judge is at risk of There is nothing inherently contradictory removal, the Judge must have the right to be between a Judge’s subjective or personal fully informed of the charges, to be represented independence and his subjective or personal at a hearing, to make full defence and to be accountability. Quite the contrary, these things Judged by an independent and impartial are fully complementary. A Judge may find the tribunal.’ courage to act independently in the face of outside pressure precisely because the Judge is 141. On the question of impeachment of oath bound to maintain a strong ethical Judges, Mr. Islam has drawn our attention to commitment. It has further been contended that the case of Justice Ramaswami (K.Veeraswami the judicial independence is one of the most V. Union of India), the Sri Lankan experience, important basic structures of the constitution the Malaysian experience and drew our and the impugned Sixteenth Amendment attention that in 30 jurisdictions (62.5%), a The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 369 disciplinary body that is separate from both the as to its independence about 214 years ago. It is Executive and Legislature decides whether better to quote some observations on historical Judges should be removed from office. The facts made by Chief Justice Earl Warren, one most popular model found in 20 jurisdictions of the prominent Chief Justices in the history of (41.7%) is the ad-hoc tribunal, which is formed United States, in his book ‘The memoirs of only when the need arises to consider whether Chief Justice’ as under: a Judge should be removed. In 10 other “Only two years after John Marshall jurisdictions (20.8%) the decision is entrusted was appointed Chief Justice, he and the to a permanent disciplinary council. All learned Court were in great trouble with Thomas Amici other than Mr. Ajmalul Hossain have Jefferson because in his landmark also accepted the submission of Mr. Islam. decision of Marbury v. Madison (1803), 142. Dr. Kamal Hossain by referring to an Marshall held that executive action was article published in Bombay University Press subject to judicial review. The party of Jefferson, with his support, undertook to submits that the American experience in remove the Justices responsible for the impeaching a Judge has been unsatisfactory. decision, and in the following year, According to him, the Senate, which is a Justice Samuel Chase was impeached by legislative body, has little time for a detailed the House of Representatives, not for investigation into the conduct of a Judge; and “treason, bribery or other high crimes where such investigation is made, political and and misdemeanors,” as provided in party consideration have come into play. He Article II, Section 4 of the Constitution, adds that the American scenario of but for intemperate political criticism of impeachment has been criticized as an the Administration in his instructions to a unsatisfactory process. Thus according to him, grand jury. He was acquitted after a trial the risk of impeachment being highly in the Senate. He is the only Justice in politicized will be even more prominent in the the history of the Supreme Court to have current political context in Bangladesh, been impeached, but there is little doubt especially due to the effect of article 70 of the in the minds of historians that had he constitution, which stipulates that a person been convicted a similar fate awaited elected as a member of Parliament at an Chief Justice Marshall and his election at which he was nominated as a colleagues; not for “high crimes and candidate by a political party shall vacate his misdemeanors,” but for disagreeing with seat if he votes in Parliament against that party. the Administration.’ He adds that in view of such provision, it is questionable as to what extent the members of 144. Thomas Jefferson never recanted on Parliament can be impartial and free from his enmity, and twelve years after he left the partisan political directives at the time of presidency he wrote: “The judiciary of the exercising the power of impeachment. Learned United States is the subtle corps of sappers and counsel has also drawn our attention to the miners constantly working underground to undermine the foundations of our confederated impeachment procedure existing in England, fabric. They are construing our Constitution Australia and some other regions. from a co-ordination of a general and special 143. I would like to mention that the government to a general and supreme one American judiciary had faced similar problem alone. This will lay all things at their feet.” The Law Messenger 370 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 145. Later Marshall had similar problems the Court’s work. Accordingly, he must during the Andrew Jackson administration; yet have been prepared for attacks upon it. I today he is regarded as the most towering venture to express the hope that the figure in USA’s judicial history. Court’s decisions always will be controversial, because it is human nature ‘Chief Justice Taney, following for the dominant group in a nation to Marshall from 1833 to the Civil War, had keep pressing for further domination, and severe difficulties through the outgrowth unless the court has the fiber to accord of the troublesome slavery question.’ justice to the weakest member of society, And even in this century the two regardless of the pressure brought upon Roosevelts brought the force of their it, we never can achieve our goal of “life, Administrations to bear against the liberty and the pursuit of happiness” for Court. Theodore Roosevelt castigated the everyone. Court publicly for not following his Perhaps, therefore, before discussing policies, and advocated the recall of my own approach to the problems of the controversial decisions of the Supreme Supreme Court which have provoked the Court by popular vote. Disappointed most feeling, it might be enlightening to because Justice Oliver Wendell Holmes, explain in non legal terms what the his first appointee and one of the giants jurisdiction and the procedures to the of Court history, failed to support his court are. I say this because in the news position in an important antitrust case, he media the court is often portrayed as a was reported to have complained that he mysterious body operating behind a veil might as well have appointed someone of secrecy, and the general public is led with a backbone of macaroni. to believe that its “mystique” is beyond Franklin D. Roosevelt, angered by the comprehension of normal decisions of the Court during his individuals. This is far from the truth, Administration, sought to have Congress and after sixteen years on the Court and increase the number of Justices by several in retirement, I am prepared to adding one for each Justice over the age say that its processes are more available of seventy, of whom there were then six, to the public than those of the other thus enabling him to bring the number to branches of the government the Congress the maximum of fifteen as fixed by the and the presidency.” (Ibid) bill. Called by its proponents the Court 146. In another landmark decision in Reorganization Bill and by its opponents United States V. Burr, June 13, 1807, J.M. the Court packing Bill, it was killed in Papers, 7:37-50, on the issue of withholding committee and did not reach the floor in evidence, Burr demanded to see documents at either house. the trial. The President had said the documents Every man who has sat on the Court would prove Burr’s guilt but the prosecution must have Known at the time he took and the President refused the demand for office that there always has been and in producing documents. Marshall, CJ declared: all probability always will be controversy “The Uniform practice of this counting surrounding that body. It is inherent in has been to permit any individual who The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 371 was charged with any crime to prepare Jefferson’s Republican in congress acted to for his defense.... The genius and dilute Marshall’s powers by increasing the character of our laws and usages are number of Supreme Court Justices to seven to friendly, not to condemnation at all ensure a large enough Republican majority to events, but to a fair and impartial trial. dispatch Chief Justice John Marshall and his Accordingly they consequently allow to opinions into legal obscurity, but he failed in the accused the right of preparing the his endeavour. (John Marshall, page 255). means to secure such a trial.” 150. The High Court Division after 147. When the prosecution retorted by exploring the removal mechanism around the citing the British constitutional principle that globe observed that: ‘the king can do no wrong’, Marshall replied: “(a) There are no Commonwealth “By the constitution of the United jurisdiction in which the Executive has States, the President may be impeached the power to dismiss a judge. (It is still and removed from office on conviction common for the Executive to be of high crimes and misdemeanors. By the responsible for formally revoking a constitution of Great Britain the Crown is judge’s appointment after another body hereditary and the monarch can never has determined that the Judge should be become a subject.... The President is removed). elected from the mass of the people, and on expiration of the time for which he is (b) The Westminster model of elected, he returns to the mass of the parliamentary removal is the standard people again.’ mechanism of removal in only 16 jurisdictions (33% of the total), namely, 148. Ultimately the jury declared Barr not (Australia (federal), Bangladesh, Canada, guilty of the indictment. Jefferson immediately India, Kiribati, Malawi, Malta, Maldives, sent the trial records to the Congress Nauru, New Zealand, Samoa, Sierra demanding that the House impeach Marshall Leone, South Africa, Sri Lanka, Tuvalu and write a constitutional amendment that and the United Kingdom. In Nigeria and would roll back Marshall’s decisions and Rwanda, Judges who hold certain sharply circumscribe judicial authority. ‘We positions are subject to parliamentary had supposed we possessed fixed laws to guard removal, but others are subject to just equally against treason and oppression’, removal by a disciplinary council). Jefferson raged. “But it now appears we have (c) In 30 jurisdictions (62.5%), a no law but the will of the Judge.” (Thomas disciplinary body that is separate from Jefferson to Willam Thompson, September 26, both the Executive and the Legislature 1807, Ford, works of TJ, 10: 501-502). decides whether judges should be 149. Jefferson ordered ‘Let the Judge be removed from office. The most popular impeached’, demanded the Richmond Enquirer model found in 20 jurisdictions (41.7%) which call Federal Judges in general ‘too is the ad hoc tribunal, which is formed independent of the people’ and Marshall in only when the need arises to consider particular ‘a disgrace to the bench of justice’. whether a Judge should be removed. (Enquirer (Richmond), December, 1808). Those Commonwealth jurisdictions are The Law Messenger 372 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Bahamas, Barbados, Botswana, Fiji, Council of Bangladesh to a great extent Jamaica, Ghana, Guyana, Kenya, which has already been abolished by the Lesotho, Malaysia, Mauritius, Papua Sixteenth Amendment. Anyway, these New Guinea, the Organization of Eastern calculation show that in 42%+21%=63% Caribbean States, Seychelles, Singapore, Commonwealth jurisdictions, either ad Solomon Islands, Tanzania, Trinidad and hoc tribunals, or permanent disciplinary Tobago, Uganda and Zambia, The councils hold the field. [Reference: “The Australian States of Victoria and Appointment, Tenure and Removal of Queensland, and the Australian Capital Judges under Commonwealth Principles: Territory, also provide ad hoc tribunals to A Compendium and Analysis of Best be formed to consider the removal of a Practice” (Supra)]. So it is crystal clear state judge. In 10 other jurisdictions that the parliamentary removal (20.8%), the decision is entrusted to a mechanism has not been preferred by the permanent disciplinary council, namely, majority Commonwealth jurisdictions Belize, Brunei Darussalam, Cameroon, obviously for upholding the separation of Cyprus, Mozambique, Namibia, Nigeria, powers among the 3(three) organs of the Rwanda, Pakistan, Swaziland, Tonga and State and for complete independence of Vanuatu. the Judiciary from the other two organs of the State. What I am driving at boils (d) In two further jurisdictions, Judges down to this: from the above analysis, it holding certain senior positions are is easily comprehensible that in 63% subject to parliamentary removal, while a Commonwealth jurisdictions, Judges are permanent disciplinary council is removed from office for their responsible for removal decisions in misconduct/misbehavior or incapacity respect of the rest of the higher Judiciary. without the intervention of the Nigeria and Rwanda are two examples in Legislature. Hence it is easily deducible this regard.” that the majority Commonwealth 151. And the High Court Division jurisdictions are on high alert about concluded its opinion as under: separation of powers and independence of the Judiciary in their respective The Parliamentary removal procedure jurisdictions.” is in force in 33% Commonwealth jurisdictions whereas ad hoc tribunals are 152. In Bangladesh, we have inherited the formed in 42% Commonwealth legacy of the administration of justice from the jurisdictions, as and when necessary, and British colonial power and still we are permanent disciplinary councils are in following the same judicial procedures and vogue in 21% Commonwealth principles with a little modifications. To begin jurisdictions. The mixed procedure with, the British system, Chief Justice Coke, (permanent disciplinary council-cum- one of the greatest English Jurists, wrote at the parliamentary removal system) is beginning of the Seventeenth Century; ‘The operative in 4% Commonwealth reason of the law is the life of the law, for tho’ jurisdictions. The ad hoc tribunals and a man can tell the law, yet if he knows not the permanent disciplinary councils are akin reason thereof, he shall soon forget his to the Chief Justice-led Supreme Judicial superficial knowledge, but when he findeth the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 373 right reason of the law and so bringeth it to his Kingdom. The procedure to be adopted is in the natural reason that he comprehended it as his following manner: own, this will not only serve him for the “In terms of regulating misconduct in the understanding of that particular case but of judiciary, the executive still plays a central many others.’ (Historical Introduction to role, sharing the responsibility for judicial English Law, Co. Litt., f.183b). complaints and discipline jointly with the Lord 153. If we look at the foundations of the Chief Justice,(LCJ); under detailed procedures English legal system, we find that the Judiciary set out in the Concordat and implemented in as an independent third branch of the State still the Judicial Discipline (Prescribed Procedure) survives as an ideal, though not as part of the Regulations 2006. The old Lord Chancellors British constitution. Whatever critics of enjoyed considerable discretion over judicial Dicey’s theory of the ‘Rule of Law’ may say of discipline, though the department was our time and generation, it cannot be doubted generally thought to handle dismissals and that the common law played a tremendous part discipline ‘with considerable natural justice’, in the events which led up to the establishment with a ‘quiet word’ often used to encourage of British modern constitution and with it the Judges to step aside. Today, responsibility for English way of life and thought. (Ibid) complaints is shared between the LCJ and the Lord Chancellor, supported by a Judicial 154. When Parliament was showing an Conduct Investigations Office (JCIO) staffed arbitrary temper comparable with that of the by civil servants. The Lord Chancellor is Stuart Monarchy in the Seventeenth Century, accountable to Parliament for the operation of Wilkes appealed, and not in vain, to the the discipline system. The JCIO filters out common law. At the same time, when the unfounded or trivial complaints, referring English Government was refusing to British serious ones to a nominated judge, who acts as American colonies the rights for which a further filter. Then to an investigating Judge. Parliament had fought nearly a hundred years This triage system ensures that non-trivial before, the Framers of the United States complaints receive proper consideration and constitution saw so clearly the true place of law that Judges are investigated by their peers. If at in the government of the people that they the end of the process the LCJ and Lord conferred upon the Supreme Court the power to Chancellor wish to take disciplinary action, declare invalid the acts of President or of they must refer the case to a review body Congress. composed of two Judges and two lay 155. This is the lesson for the present age. members.’ (The Politics of Judicial If the people would live in peace and enjoy Independence in the UK’s Changing their liberties and, because this is a corollary to Constitution P.58-59). all liberties, observe their obligations, there 156. The LCL and Lord Chancellor must must be law, and to declare it, law courts decide jointly on disciplinary sanctions but presided over by independent Judges who will cannot take any action more severe than that “administer justice indifferently to all men”. recommended by the review panel. At the end (Historical Introduction to English Law, Fourth of the process only the Lord Chancellor can Edition of A.K.R. Kiralfy). With the passage of formally remove a Judge from office, and only time, the judicial accountability system has at Circuit Judge level and below. For Judges of been dramatically changed in respect of United High Court level or above, the decision to The Law Messenger 374 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) dismiss must be approved by both Houses of of those changes, which did not begin and end Parliament (this has not occurred since 1830). in 2005. The removal of the Law Lords was a There is also a process for reviewing the JCIO critical moment, but practices shaping relations process itself. Complaints of Judges can raise between Parliament and Judges were changing concerns about the handling of a complaint (but before then and have evolved since. not the merits of the decision made) with the Judicial Appointments and Conduct 159. There will always be tensions between Ombudsman (JACO). Allegations of serious Parliament and the Courts. Recent years have misconduct remain very rare amongst the provided a number of high profile examples: senior judiciary. That said the JCIO and the sustained wrangling over the proper scope of JACO receive significant numbers of judicial review in human rights and national complaints an average of around 1,700 a year. security cases, the role of the European Court This, in turn, requires significant resources: the of Human Rights, and the boundaries of JCIO has fifteen staff and the JACO ten. A parliamentary privilege. Decisions by courts in significant proportion of complaints received relation to human rights and judicial review are (normally 50 per cent or more) relate to judicial often points of friction between Judges and decisions rather than alleged misconduct and politicians. After the creation of the UK are dismissed for this reason. Between 2008 Supreme Court, the roles of President and and 2013 an average of fifteen court judges Deputy have been clearly defined. (Ibid) were disciplined each year for misconduct. A 160. The Constitutional Reform Act similar number (eighteen) resigned. The confers several responsibilities on the offices. average figure for Judges removed from office ‘A number are conferred directly on the is very low- less than two per year.” (Ibid) President alone, reflecting the fact that this 157. Though the United Kingdom is the office has a heavier mix of outward-facing and only country which is being run by unwritten inward-facing functions. In practice, the constitution— the Executive, the Monarch, the President and Deputy work closely in issues Parliament and the Judiciary are working side relating to the Court’s judicial role, with both by side without intrusion of powers by one working with the Chief Executive on non- organ on the other. It is found that even if in judicial matters. There are five key the absence of any constitution and disciplinary responsibilities for the President and/or the mechanism, a Judge of the High Court was Deputy President relating to judicial business removed about 187 years ago. (Ibid) over and above sitting in and presiding over hearings. First, the President and Deputy 158. After passing of the Constitution President determine the composition of the Reform Act, 2005, the relationship between the panels that hear applications for permission to Parliament and the judiciary has undergone a appeal and full hearings. Second, the President structural change. The removal of the UK’s may request senior appellate Judges from highest court of appeal from the House of England and Wales, Scotland and Northern Lords formally separated the Judges from the Ireland to serve as an acting Judge’ in the Court legislature and this has inevitably changed the on a temporary basis. The President may also institutional architecture within which Judges ask members of a supplementary panel of and parliamentarians interact. But the retired appellate Judges to sit. Third, the provisions of the Act do not tell the whole story President is responsible for making the Courts The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 375 Rules. In practice, the Court’s first President judiciary. However, a key difference is that in delegated much of this task to the Deputy England and Wales, the Lord Chancellor still President. Fourth, the President has an plays a central role: the Lord Chief Justice and important role relating to complaints and the Lord Chancellor have to co-operate both in discipline.’ (Ibid P-198) the making of rules and in reaching disciplinary decisions. (Ibid P- 237) 161. On the question of judicial accountability and judicial discipline, it is said 163. The judiciary retains significant that “the court is largely self-regulating. The influence at all stages of the process. Judges Constitutional Reform Act in UK provides that below High Court level may be suspended or the Justices hold office during good behaviour, removed only with the agreement of the Lord but may be removed from it on the address of Chief Justice of Northern Ireland (LCJ-NI). If both Houses of Parliament. Given that no the tribunal recommends suspension or Judge has been removed by Parliament since dismissal of a High Court or Court of Appeal 1830, this is a measure of last resort that is Judge, the advice of the LCJ-NI must be taken unlikely to be used. Although not required by and the matter then goes to the Prime Minister statute to do so, the Court’s first leadership and Lord Chancellor. Judges at this level may team introduced a complaint procedure. be dismissed only by the UK Parliament. (Ibid Complaints relating to the effects of the Court’s P.238) judicial decisions are inadmissible, but any 164. The Judges ultimately agreed to the disclosing grounds for further consideration are new approach on condition that the Lord referred to the President, who can decide to President would have complete control over the take no action or to resolve the complaint system. The result has been that the Lord informally. If formal disciplinary action is President has what amounts to absolute considered, the President must consult with the Lord Chancellor. Formal action involves a authority to issue rules and manage the tribunal consisting of the Lord Chief Justice, complaints and disciplinary system. the Lord Chief Justice of Northern Ireland and (Ibid)(emphasis supplied) the Lord President (head of the Scottish 165. The other parliamentary mechanism judiciary), plus two independent members for removal of Judges is in India. In this nominated by the Lord Chancellor. After the connection, the learned counsel Mr. Monzill tribunal delivers its report, the Lord Chancellor Murshed and the learned Amici except Mr. must decide whether to remove the Justice by Ajmalul Hossain have drawn our attention to laying the necessary resolution before both the pathetic experiences being faced by it. Mr. Houses of Parliament.(Ibid P.201-202) M. Amirul Islam has drawn our attention to 162. This change has been made to three notable cases concerning judicial announce the Judges independence. In respect inquiries and impeachment motion which have of Scotland and Northern Ireland, the Judges been initiated. enjoy much greater autonomy over judicial 166. The very first and the only case that complaints and discipline than do their involved the impeachment motion and the counterparts in England and Wales. In each Inquiry Committee formed against Justice V. jurisdiction, the investigation of complaints Ramaswami of the Supreme Court found him against Judges is run for the most part by the guilty on account of gross abuse of his The Law Messenger 376 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) financial and administrative powers as the constitutional provisions in regard to Chief Justice of the Punjab and Haryana High impeachment. Court and criminal misappropriation of 170. One of the very recent incidents of property. The impeachment motion was however vanquished, as it did not attain a disciplinary proceeding is against Justice special majority in the Lok Shobha as required. Karnan, a Judge of the Calcutta High Court. Justice Karnan’s shenanigans have exposed 167. The second case involved Justice many weaknesses in the higher judiciary and Soumitra Sen of the Calcutta High Court whose point to much more than the acts of just one removal from office was sought on two man. This Judge had called a press conference grounds by the following motions: (i) to accuse a fellow High Court Judge of caste misappropriation of large sums of money in his discrimination on the ground that the Judge capacity as the receiver appointed by the High who sat next to him ‘deliberately’ touched him Court of Calcutta; and (ii) misrepresentation of facts with regard to this misappropriation of with his foot. In 2015, he interrupted arguments money before the High Court of Calcutta and going on in another courtroom in the Madras was initiated in Rajya Sabha on 17 August High Court regarding judicial appointments, 2011. However, before his impeachment demanding to be heard. In April 2015, he proceedings began in the Lok Sabha, Justice began suo motu contempt proceedings against Soumitra Sen sent his resignation to the the Chief Justice of the Madras High Court, President of India, with a copy to the Speaker, Sanjay Kishan Kaul, accusing the latter of LokSabha. However, the impeachment motion harassing and belittling him because he was a subsequently lapsed. Dalit and by giving him ‘insignificant and dummy’ portfolios. The Supreme Court stayed 168. Another such motion was initiated against Chief justice Dinakaran of Sikkim High the same. Justice Karnan then accused Kaul of Court who then resigned from his post. corruption in February last year, following Parliamentary Standing Committee reports on which the Supreme Court transferred him to the Judicial Standards and Accountability Bill, Calcutta. When the Supreme Court lifted his 2010(JSAB) in the midst of impeachment stay order, he asked the chief police to book motions against Justice Sen and Dinakaran in a case against the two Judges under the India came in for severe criticism from the SC/ST (atrocities) Act. The Supreme Court Campaign for Judicial Accountability and threatened to haul up him for contempt for Reforms (CJAR). some of the statements that he made, but 169. The resignations of justices Sen and Justice Karnan apologized saying that his Dinakaran have exposed the inadequacies of ‘mental balance’ was severely affected. He the present system to make Judges answerable finally took charge at the Calcutta High for their omissions and commissions because Court. Thereafter, Justice Karnan has been of the inherent politicization of the hauled up for sending a letter to the Prime parliamentary mechanism. The fact that tainted Minister with a list of sitting and retired High Judges can simply evade parliamentary Court and Supreme Court Judges whom he scrutiny and censure by resigning is a telling wants to be ‘interrogated’ by investigative commentary on the lacunae in the legal and agencies on the grounds of corruption. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 377 171. The contempt proceedings suggest an different cases, relieve them of all judicial attempt to fill this lacuna in the institution. works, or transfer to another High Court. The Ultimately the Supreme Court by order dated first two ways can be done by the Chief Justice 11th March, 2017, issued a warrant against in charge of the High Court, while the last Justice Karnan for his keeping a contempt case requires the cooperation of the government. were to be served by the Bengal Police Chief. There is no way for the public (or even the In another unprecedented move, Justice Karnan Judge) to know why a Judge might have been called a ‘court’ on the lawns of his home in ‘penalised’ this way and what behaviour Kolkata and ordered the CBI to investigate the crossed the line. There also remains a gap in seven Supreme Court Judges who issued a severity between these measures and contempt notice against him. ‘The Supreme impeachment. Court is not my master’, said the Judge, 173. The controversy surrounding Karnan alleging that he was being targeted because he is part of a larger problem in the judiciary is a Dalit. Justice Karnan has filed a defamation rather than a one-off problem. Late in 2016, the case against the seven Supreme Court Judges, Supreme Court initiated contempt proceedings who have ordered him to appear in court on against former SC Judge Markandey Katju for March 31. “This is a caste issue. A Dalit Judge his ill-thought-out comments against Judges. (is being) prevented from doing work in a Multiple Judges of the High Courts and the public office. That is atrocity,’ Justice Karnan Supreme Court have faced accusations of told reporters after holding his ‘court’ and sexual harassment. Nirmal Yadav of the Punjab issuing a ‘writ order’ to the CBI. “I am going to and Haryana High Court also faced charges operate my judicial powers. All seven judges framed by a CBI court for allegedly receiving a have to resign and should be prosecuted,” bribe as a sitting Judge in 2008. declared the Judge, also urging the President to cancel the Supreme Court’s warrant against 174. Although their attention was drawn to him. Chief justice of India JS Khehar and six the recent episode of India, neither the Judges had summoned Justice Karnan to court Attorney General nor the Additional Attorney for contempt in February after his controversial General or Mr. Ajmalul Hossain has made any allegations about corruption in the judiciary. reply in this regard. So, the Indian experience Ultimately, he was sentenced to six months is not happy one and though the India has a simple imprisonment. strong democracy since 1937 and its Parliament is also very matured, its 172. In India it is a talk of the day that the appointment process of the Judges is more impeachment by Parliament is a long-drawn- transparent than that of ours and even then, the out and difficult process. It is in the Judges removal mechanism by Parliament is constitution where judicial independence is not working in India. rigorously protected. Whatever ‘misbehaviour’ a Judge is alleged to have committed should be 175. In Sri Lanka there are two systems of serious enough for Parliament to sit up and take judicial removal mechanism in respect of a notice before removing her or him from office. Judge of the Supreme Court. Section 107 of its It is also the only sanction that can be imposed constitution provides as under: on an erring Judge. At present, there are certain “107. Every such Judge shall hold informal measures that can be taken against an office during good behaviour and shall erring Judge; change their workload to not be removed except by an order of the The Law Messenger 378 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) President made after an address of and refused to resign from her office, a Parliament supported by a majority of the Parliamentary Select Committee (PSC) was total number of Members of Parliament formed with seven ruling party MPs along with (including those not present) has been 4 opposition MPs to conduct an inquiry and the presented to the President for such PSC found Bandaranayake guilty on account of removal on the ground of proved a few charges which was enough to remove her misbehaviour or incapacity. from the office. All the four opposition MPs withdrew from the Committee rejecting the Provided that no resolution for the reports saying “This was not an inquiry-it was presentation of such an address shall be an inquisition”. The report was first sent to the entertained by the Speaker or placed on President and later to the Parliament for vote the Order Paper of Parliament, unless on the impeachment motion. notice of such resolution is signed by not less than one-third of the total number of 178. Meanwhile the people opposed the Members of Parliament and sets out full removal of the Chief Justice. On 1st January, particulars of the alleged misbehaviour or 2013, the Supreme Court ruled that the PSC incapacity.” had no power to investigate the charges of 176. In respect of Judge of the High Court, allegations against the Chief Justice and the section 111 provides that ‘the Judge of the impeachment was therefore unconstitutional. High court shall- 2(b) be removed and be Chief Justice Bandaranayake appealed against subject to the disciplinary control of the the PSC and on 11 January, 2013, the Court of President on the recommendation of the Appeal quashed the PSC’s findings declaring Judicial Service Commission’. So, in respect of the impeachment unconstitutional. Chief removal of High Court Judges the President Justice Bandaranayake continually refused to shall exercise the power on the recognise the impeachment and lawyer groups recommendation of the Judicial Service refused to work with the new Chief Justice. Commission, an independent body. Chief Justice Bandaranayake’s controversial rd impeachment drew much criticism and concern 177. Mr. Islam submitted that the 43 from within and outside Sri Lanka. After the Chief Justice of Sri Lanka Shirani change of the government on 28 January 2015, Bandaranyake was impeached by Parliament in she was reinstated and she herself resigned on January, 2013 by President Mahinda Rajapaksa the following day on 29 January 2015. only because she gave a ruling against the government in reprisal for inconveniently 179. Despite significant opposition, the declaring unconstitutional part of its legislative then President’s senior advisor, Mohan Peris agenda including one against a bill proposed by was appointed as the New Chief Justice in Basil Rajapaksa, then Minister for Economic place of Bandarnayake. The impeachment and Development and the brother of President subsequent appointment of the new Chief Mahinda Rajapaksa. On 6th November 2012, 14 Justice suffered condemnation from charges were made against Chief Justice international bodies including the USA, UK Bandaranyake including professional and and Commonwealth, among many others that financial misconduct and abuse of power. Even they refused to recognize the legal standing of though the Speaker revealed these charges the new Chief Justice. Since the constitution of which Chief Justice Bandaranayake had denied Sri Lanka was enacted in 1978, there has not The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 379 been much safeguard for Judges against 121 and 145 through Parliament to remove the pressure from the Executive and Legislature. general power of the High Courts to conduct Their Security of tenure turned volatile by the judicial review, divesting the courts of the lack of transparent and accountable procedures “judicial power of the Federation” and granting for the appointment, transfer, discipline and them instead such judicial powers as removal of Judges of higher judiciary. Parliament might grant them. The then Lord 180. The Eighteenth Amendment of the President of the Supreme Court, Salleh Abas, constitution was enacted in September 2010 in with due support of other Judges sent a letter of Sri Lanka. The new amendment gave the protest to the Head of State, Agong (King of President Mahinda Rajapaksa power to appoint Malaysia), defending the autonomy of the the most important officials of Sri Lanka, judiciary. Their removal has not only been members of various tribunals including Judges criticized locally in their countries but also of the Supreme Court as well as the Court of caused widespread international concern and Appeal and Judicial Service Commission. The brought criticism both at home and abroad by removal of Chief Justice Bandaranayake was international bodies. not merely a political act; it also grievously 183. The history of parliamentary tarnished the confidence of the public in Sri impeachment in Asian regions does not create Lanka that had already rendered fragile the rule any favourable impression until it has brought of law, which came under censure by the political intervention in the judiciary as further Media and public opinion at home and abroad. enunciated in a report of the International Bar 181. In respect of Malaysia, Mr. Islam Association’s Human Rights Institute submitted that during Mahathir’s tenure as (IBAHRI) “A Crisis of Legitimacy: The Prime Minister in 1982, several constitutional Impeachment of Chief Justice Bandaranayake amendments were made in order to severely and the Erosion of the Rule of Law in Sri weaken the institutional strength of Malaysia’s Lanka.” Whereas many Malayisan Scholars in judiciary. Mahathir was a dominant political regard to the independence of Malaysia’s figure, winning five consecutive general judiciary such as Milne and Diane K. Mauzy elections and fending off a series of rivals for put it (at page 47 of ‘Malaysian Polities Under the leadership of United Malays National Mahathir’)as: “Henceforth, the powers of the Organisation (UMNO) party elections in 1987 judiciary would no longer be embedded in the and matters then came to a head when constitution; rather they would be conferred Mahathir Mohamad, who believed in the by Parliament through statutes. Also, by this supremacy of the Executive and Legislative Act, the High Courts were stripped of the branches, became Prime Minister. This crisis power of judicial review previously granted in was very well known as judicial or the constitution. Further, the Attorney-General constitutional crisis. assumed control of instructing the courts on what cases to hear and which courts to use, 182. In an unexpected decision in February and assumed responsibility for judicial 1988, the High Court ruled that UMNO was an assignments and transfers. Hence, virtually illegal organisation and Mahathir being upset overnight, the modified separation of powers with the judiciary’s increasing independence was terminated and the judiciary was stripped passed constitutional amendments to articles off much of its independence and power.” The Law Messenger 380 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 184. In matured democracy like India, even Minister, Kalyan Singh, tried to project after institutionalisation of both the Houses of himself as clean and set-up a Special Parliament, criminalisation of politics and Task Force (STF) in 1998 to capture or corruption of the Parliamentarians could not be liquidate criminals. However, public wiped out till now. In a celebrated book enemy number one, then was Shri ‘Religion, Caste & Politics in India’ Christope Prakash Shukla, who appeared to have Jaffrelot, a Research Director at Centre colluded with at least eight ministers of National de la Recherche Scientifics (CNRS) Kalyan Singh’s government; they had considered Indian corruption and protected him, making the task of the criminalisation in politics. The author noted STF more complicated (Mishsra 1998: that corruption has become an all-pervasive 52). phenomenon in contemporary India (page 621). Uttar Pradesh is not the only He took note of the fact that the criminilisation State where the entry of the mafia into of politics started long back in the country politics has accelerated in the last few including Uttar Pradesh. The criminals and years. Bihar is certainly as seriously mafias developed direct nexus with the affected as Uttar Pradesh. In 2000, 31 politician of the State and helped them to be Legislative Assembly crimes ranging elected. Initially, politicians availed the help of from murder to dacoity. Most of them criminals in electoral matters but later on, contested as ‘Independents’, but there criminals entered into politics and got were BJP, Congress, RJD, and Samata themselves elected in the Assemblies and candidates as well. Maharashtra is also Parliament. In this connection Justice Devi suffering from the same disease. During Prasad Singh in his book ‘Law & Reality’ the municipal elections in 1997, 150, 72 depicted the real picture of the country as and 50 candidates with past or present under: difficulties with the law (Godbole 1997) “The 1996 Legislative Assembly in were fielded from Mumbai, Nagpur, and Uttar Pradesh did not reverse but may Pune respectively. Andhra Pradesh is not have increased the 1993 trend. Not only lagging behind, since in 1999 an NGO did the BJP, the BSP, and the SP give called Lok Satta Election Watch released tickets to dozens of candidates against a list of 46 candidates contesting whom legal proceedings had been elections to the Lok Sabha or the instituted (33, 18, and 22 respectively), Legislative Assembly with, allegedly, but a certain number of BJP, BSP and some criminal background (The Hindu, 3 Congress MLAs amongst them became September, 1999: 5). ministers when the BJP formed the government, first jointly with the BSP, Delhi is also new in this circle then alone, from October, 1997. This was of most criminalized states. In fact, Delhi achieved by recruiting dozens of MLAs is gradually taking over from Mumbai as from the BSP and the Congress (and the crime capital of India. This city-state offering up to a few hundred thousand tops the list of number of crimes per rupees per MLA), with a ministerial post head, with 527 in 1996 (against 121 in for each. Thus, the Uttar Pradesh cabinet Bihar) and in terms of percentage comprised 92 members. The BJP Chief change, with +55 per cent change in The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 381 1996 over the quinquennial average of (b) When there is non-disclosure 1991 : 5 (Swami 1998: 17). Out of 815 of the offences pertaining to the areas Legislative Assembly candidates in mentioned in the preceding clause, it 1998, 120 had more than two criminal creates an impediment in the free cases registered against them, and out of exercise of electoral right. 69 MLAs, 33 had criminal cases against (c) Concealment or suppression of them (The Hindustan Times, 26 October, this nature deprives the voters to make an 1998; The Hindu, 23 November, 1998).” informed and advised choice as a 185. There are lot of controversies over consequence of which it would come elections in different States and with a view to within the compartment or direct or obviating and curbing criminalisation in indirect interference or attempt to elections, Dipak Misra, J. speaking for the interfere with the free exercise of the Supreme Court of India in Krishnamoorthy V. right to vote by the electorate, on the part Sivakumar (Civil Appeal No.1478 of 2015) on of the candidate. the issue “what constitutes ‘undue influence’ in (d) As the candidate has the the context of section 260 of the Tamil Nadu special knowledge of the pending cases Panchayat Act, 1994” observed that the crucial where cognizance has been taken or recognised ideal which is recognised to be charges have been framed and there is a realised is eradication of criminalisation of non-disclosure on his part, it would politics and corruption in public life. The core amount to undue influence and, issue in the case was non-disclosure of full therefore, the election is to be declared particulars of criminal cases pending against a null and void by the Election Tribunal candidate, at the time of filing nomination. under Section 100(1)(b) of the 1951 Act. After evaluating all decisions of the court on (e) The question whether it corrupt practice in election matters, the court materially affects the election or not will was of the view that much improved election not arise in a case of this nature. system is required to be evolved to make election process both transparent and 186. There may arise similar incidents of accountable so that influence of money and conflict in Bangladesh where the election physical force of criminals do not make disputes are heard by the Judges of the High democracy a farce –the citizen’s fundamental Court Division and on appeal by this Court. ‘right of information’ should be recognised and There are many cases pending against the effectuated. Accordingly he directed to follow Executives and Parliament members and the the following guideline: disposal of which may not be fair if the judicial removal mechanism is kept with the (a) Disclosure of criminal Parliament. It may lead towards a destruction antecedents of a candidate, especially, of judicial Independence. For instance, article pertaining to heinous or serious offence 49 of The Representation of the People Order, or offences relating to corruption or 1972 avers that “(1) No election shall be called moral turpitude at the time of filing of in question except by an election petition nomination paper as mandated by law presented by a candidate for that election in is a categorical imperative. accordance with the provisions of this Chapter. The Law Messenger 382 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) (2) An election petition shall be presented to country went through another saga of military the High Court Division within such time as backed care taker government in the garb of may be prescribed.” Emergency for two years. It was also due to the lack of forsightness of the politicians in power 187. Those countries’ experiences towards and their apathy to institutionalizing the Parliament–led mechanism for removal of democracy. Judges of the Higher Judiciary are pathetic, politicized and unworkable. The systems being 188. By the Thirteenth Amendment, followed are not working and all these articles 58B, 58C, 58D, 58E were inserted and countries are facing a lot of criticisms from articles 61, 99, 123, 147, 152 were amended. home and abroad. Those countries’ social and Form 1A was also inserted in the Third economic conditions are much better than ours Schedule of the constitution. Under the and their experience in democracy are much amended provision, a Non-party Caretaker matured than ours. We did not have any Government shall wield the Executive power democracy from 1947 till 1971. We had only of the Republic, but it shall discharge its three and half year’s democratic government functions as an interim government and shall after the independence in 1971. Then the carry on the routine functions of the country experienced the worst nightmare in government without any power of making any history— not only the father of the nation but policy decision during the period from the date also his entire family (except two daughters) on which the Chief Adviser of such including a minor boy of four years old, were government entered upon office after brutally killed. The country again fell into the Parliament was dissolved or stands dissolved hands of the guns and generals, who by reason of expiration of its term till the date established a reign of terror through martial on which a new Prime Minister entered upon laws, and it continued till 1990. After his office after the constitution of the innumerable sacrifices and through a Parliament. The mechanism for choosing tremendous mass uprising the military Caretaker Government had been provided in demagogue was ousted from power and the article 58C. There was controversy over country again came to its usual course of choosing of the Chief Advisor of the parliamentary democracy. But the system could government. The country had to experience an not work properly due to the apathy of the attempted coup d'état by the Chief of Army government then in power to hold free and fair Staff which had resulted in his removal during election. In the Sixth Parliamentary election, one interim government period. the biggest political party which led the 189. Ultimately this constitutional liberation struggle did not participate and the amendment was challenged in the High Court Parliament could not survive for more than two Division. The matter came before this court months. After a huge agitation, the government and by majority, this court in Abdul Mannan was compelled to amend the constitution. The Khan V. Bangladesh, 64 DLR (AD) 169 Constitution (Thirteenth Amendment) Act, declared the amendment ultra vires the 1996 incorporating a system of ‘Non-Party constitution. In the majority opinion, this court Care-Taker Government’ for holding free and was of the view that two parliamentary fair election was passed, but it did not take long elections may be held under the Caretaker time to discover that this system had some System subject to the condition that the incurable inherent weaknesses. Again, the selection of the Chief Advisor should not be The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 383 made from amongst the last retired Chief Parliament cannot be constituted with wise Justice or the retired Judges of the Appellate politicians and this may impede Division, in accordance with clauses (3) and institutionalization of the Parliament itself. If (4) of article 58C. This court gave the above the Parliament is not matured enough, it would direction keeping in mind that by keeping this be a suicidal attempt to give the Parliament the system there was likelihood of politicization in power of removal of Judges of the higher the selection of the Chief Justice and judiciary. The judiciary should not be made alternatively the Election Commission should answerable to the Parliament. More so, the be made more empowered and institutionalized political parties should be cautious in selecting so that the parliamentary elections can always their candidates for the national elections. As be held fairly. This court noticed that in every noticed above, even in matured democracy, national election, the political party which lost where election mechanism has been the election questioned the impartiality of the institutionalized and the parliamentarians are election and the opposition party did not co- elected in free and fair elections, they also operate in the Parliament. Ultimately in the 10th could not properly transact the business of Parliamentary election, one of the big political removal of Judges of the highest court parties did not participate. impartially. 190. This court was of the view that the 192. It is expected in a country run by government shall strengthen the Election constitutional democracy that the following Commission with all powers for holding a free indispensable constituents would exist: (a) and fair Parliamentary election and that there purity of election, (b) probity in governance, will be automatic filling up of the vacancies of (c) sanctity of individual dignity, (d) the Election Commission without the sacrosanctity of rule of law, (e) independence intervention of the government. None of the of judiciary, (f) efficiency and acceptability of succeeding governments took any step in this bureaucracy, (g) credibility of institutions like regard. Even the opposition political party has judiciary, bureaucracy, Election Commission, not also raised this point either in the Parliament, (h) integrity and respectability of Parliament or in any forum with the net result those who run those institutions. that the Election Commission has not been institutionalized as yet. 193. After the delivery of the judgment by the High Court Division, the Supreme Court 191. Unless the National Parliamentary noticed from both print and electronic media Election is held impartially and independently that the members of Parliament made free from any interference, the democracy discussions in the floor criticizing the judgment cannot flourish. In the absence of credible and the Judges questioning their propriety in election, a credible Parliament cannot be declaring the amendment ultra vires the established. As a result, our election process constitution by using unparliamentarian and the Parliament remain in infancy. The languages. This proves that our Parliamentary people cannot repose trust upon these two democracy is immature and to attain its institutions and if these institutions are not maturity, there is necessity of practising institutionalized to gain public confidence and Parliamentary democracy continuously for at respect, no credible election can be held. In the least 4/5 terms. In this connection, as example absence of a free and fair election the of development, Mr. M.I. Farooqui has drawn The Law Messenger 384 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) our attention towards two recent cases of India 2. In normal circumstances, such and Pakistan and submits that the members of exercise could be conducted by the NAB Parliament in both the countries did not react but when its Chairman appears to be with anything and accepted the verdicts of the indifferent and even unwilling to perform Supreme Courts even though decisions were his part, we are constrained to look sensational. elsewhere and therefore, constitute a joint Investigation Team (JIT) 194. The Pakistan Supreme Court case comprising the following members: relates to the corruption of the sitting Prime Minister Mian Muhammad Nawaz Sharif, his i. a senior Officer of the Federal brother Mian Muhammad Shahbaz Sharif, the Investigation Agency (FIA), not below Chief Minister of Punjab and other members of the rank of Additional Director General their family. In the said case, the operative part who shall head the team having of the judgment is as under: firsthand experience of investigation of white collar crime and related matters: “By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, ii. a representative of the National who have given separate declarations and Accountability Bureau (NAB); directions, we hold that the questions how did iii. a nominee of the Security & Gulf Steel Mill come into being; what led to its Exchange Commission of Pakistan sale; what happened to its liabilities; where did (SECP) familiar with the issues of its sale proceeds end up; how did they reach money laundering and white collar Jeddah, Qatar and the U.K.; whether crimes; respondents No.7 and 8 in view of their tender iv. a nominee of the State Bank of ages had the means in the early nineties to Pakistan (SBP); possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim v. a seasoned Officer of Inter Bin Jaber Al-Thani is a myth or a reality; how Services Intelligence (ISI) nominated bearer shares crystallized into the flats; who, in by its Director General; and fact, is the real and beneficial owner of M/S vi. a seasoned Officer of Military Nielsen Enterprises Limited and Nescoll Intelligence (MI) nominated by its Limited, how did Hill Metal Establishment Director General. come into existence; where did the money for 3. The Heads of the aforesaid Flagship Investment Limited and other departments/institutions shall companies set up/taken over by respondent recommend the names of their nominees No.8 come from, and where did the Working for the JIT within seven days from today Capital for such companies come from and which shall be placed before us in where do the huge sums running into chambers for nomination and approval. millions gifted by respondent No.7 to The JIT shall investigate the case and respondent No.1 drop in from, which go to collect evidence, if any, showing that the heart of the matter and need to be respondent No.I or any of his dependents answered. Therefore, a thorough or benamdars owns, possesses or has investigation in this behalf is required. acquired assets or any interest therein The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 385 disproportionate to his known means of (Ninety- ninth Amendment) Act, 2014 and also income. Respondents No.1, 7 and 8 are that of the National Judicial Appointments directed to appear and associate Commission Act, 2014. The court declared the themselves with the JIT as and when amendment ultra vires the independence of required. The JIT may also examine the judiciary. The opinion of the Supreme Court of evidence and material, if any, already India is as under: available with the FIA and NAB relating 1. The prayer for reference to a to or having any nexus with the larger Bench, and for reconsideration of possession or acquisition of the aforesaid the Second and the Third Judges cases, is flats or any other assets or pecuniary rejected. resources and their origin. The JIT shall submit its periodical reports every two 2. The Constitution (Ninety-ninth weeks before the said Bench within a Amendment) Act, 2014 is declared period of sixty days from the date of its unconstitutional and void. constitution. The Bench thereupon may 3. The National Judicial pass appropriate orders in exercise of its Appointments Commission Act, 2014, is powers under Articles 184(3), 187(2) and declared unconstitutional and void. 190 of the Constitution including an order for filing a reference against 4. The system of appointment of respondent No.1 and any other person Judges to the Supreme Court, and Chief having nexus with the crime if justified Justices and Judges to the High Courts; on the basis of the material thus brought and transfer of Chief Justices and Judges on the record before it. of High Courts from one High Court, to another, as existing prior to the 4. It is further held that upon Constitution (Ninety-ninth Amendment) receipt of the reports, periodic or final of Act, 2014 (called the ”Collegium the JIT, as the case may be, the matter of System”), is declared to be operative. disqualification of respondent No.1 shall be considered. If found necessary for 5. To consider introduction of passing an appropriate order in this appropriate measures, if any, for an behalf, respondent No.1 or any other improved working of the ”Collegium person may be summoned and examined. System”, list on 3-11-2015. 5. We would request the Hon’ble (Supreme Court Advocates-on-Record V. Chief Justice to constitute a Special Union of India, (2016) 5 SCC 1.) Bench to ensure implementation of this judgment so that the investigation into 196. Clause (3) of article 65 of our the allegations may not be left in a blind constitution made provision for fifty reserved alley”. seats for women in the Parliament, who are not directly elected by the people. The Constitution (Constitution Petition No.29 of 2016, Imran (Fifteenth Amendment) Act, 2011 inserted a Ahmed Khan Niazi V. Mian Muhammad new provision as clause (3A) to article 65, Nawaz Sharif). which provided that for the remaining period of 195. In the Indian case, the question was the Parliament in existence at the time of the the constitutional validity of the Constitution commencement of the Fifteenth Amendment, The Law Messenger 386 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) “Parliament shall consist of three hundred enacting laws promulgated during the aforesaid members elected by direct election provided period.’ The Parliament in violation of the for in clause (2) and fifty women members direction and/or without comprehending the provided for in clause (3).” While making impact of the direction promulgated Act 06 of provision for fifty reserved women members of 2013 as under: Parliament is a remarkable step forward to “1975 mv‡ji 15 AvM÷ nB‡Z 1979 mv‡ji 9 Gwcªj promote women participation in our law ZvwiL ch©šÍ mg‡qi g‡a¨ RvixK…Z KwZcq Aa¨v‡`k Kvh©Ki making process, but it has focused the idea that our democracy is not mature enough that we Kwievi j‡ÿ¨ cªYxZ AvBb| still need to promote participation of women in the Parliament by making special provisions for them so that they can come to the †h‡nZz msweavb (cÂ`k ms‡kvab) AvBb, 2011 Parliament without the need to go to the public. (2011 m‡bi 14 bs AvBb) Øviv 1975 mv‡ji 15 AvM÷ These fifty women members get elected by the nB‡Z 1979 mv‡ji 9 GwcÖj ZvwiL ch©šÍ mg‡qi g‡a¨ rest three hundred members of Parliament RvixK…Z Aa¨v‡`k mg~n Aby‡gv`b I mg_©b (ratification based on the proportional representation of the and confirmation) msµvšÍ MYcªRvZš¿x evsjv‡`‡ki parties who are directly elected by the public. msweav‡bi PZz©_ Zdwm‡ji 3K I 18 Aby‡”Q` wejyß nIqvq Reserved women members of Parliament, who D³ Aa¨v‡`kmg~n Kvh©KvwiZv nvivBqv‡Q; Ges are not directly elected by the public, would also take part in the Judges’ impeachment process, which is not acceptable in a mature †h‡nZy wmwfj wcwUkb di jxf Uz Avcxj bs 1044- democracy. It is also incompatible with the 1045/2009 G mycÖxg‡Kv‡U©i Avcxj wefvM KZ©„K cÖ`Ë iv‡q spirit of the preamble and article 7(1) of the msweavb (cÂg ms‡kvab) AvBb, 1979 (1979 m‡bi 1bs constitution. Moreover, there have been women AvBb) evwZj †NvwlZ nIqvq D³ mg‡qi g‡a¨ RvixK…Z D³ Prime Ministers and leaders of the opposition D³ Aa¨v‡`kmg~n Kvh©KvwiZv nvivBqv‡Q; Ges in this country since 1991, which signifies that women members of Parliament can be directly ------elected by the people just like the male ------members of Parliament. We hope that arrangements may be made reserving fifty constituencies to contest in the election, which ‡m‡nZz GZ`Øviv wbgœiƒc AvBb Kiv nBjt would ensure women representation in the

Parliament through direct election. 197. If we look this fact from another 1| mswÿß wk‡ivbvg I cÖeZ©b - (1) GB AvBb 1975 angle, it will be nakedly clear that our mv‡ji 15 AvM÷ nB‡Z 1979 mv‡ji 9 GwcÖj ZvwiL ch©šÍ Parliamentary democracy cannot transact its mg‡qi g‡a¨ RvixK…Z KwZcq Aa¨v‡`k Kvh©KiKiY (we‡kl business in the manner it ought to have weavb) AvBb, 2013 bv‡g AwfwnZ nB‡e| performed. This court in Civil Review Petition Nos.17-18 of 2011 provisionally condoned the (2) Bnv Awej‡¤¦ Kvh©Ki nB‡e| laws promulgated by the martial law authority for a limited period till 31st December, 2012 ‘for enabling the Parliament to make necessary ------amendment to the constitution and also ------The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 387 4| KwZcq Aa¨v‡`‡ki Kvh©KvwiZv cÖ`vb| - 1975 confirmation) msµvšÍ MYcÖRvZš¿x evsjv‡`‡ki mv‡ji 15 AvM÷ nB‡Z 1979 mv‡ji 9 GwcÖj ZvwiL ch©šÍ msweav‡bi PZz_© Zdwm‡ji 19 Aby‡”Q` wejyß nIqvq D³ (Dfq w`bmn) mg‡qi g‡a¨ RvixK…Z - Aa¨v‡`kmg~n Kvh©KvwiZv nvivBqv‡Q; Ges (K) Zdwmjfy³ Aa¨v‡`kmg~n, Ges (L) Ab¨vb¨ Aa¨v‡`kmg~n Øviv cÖPwjZ †Kvb †h‡nZz wmwfj Avcxj bs 48/2011 G mycÖxg‡Kv‡U©i AvBb, Av‡`k ev Aa¨v‡`k ms‡kvab Kiv nBqv Avcxj wefvM KZ…©K cÖ`Ë iv‡q msweavb (mßg ms‡kvab) _vwK‡j D³ ms‡kvabx Aa¨v‡`kmg~n AvBb, 1986 (1986 m‡bi 1bs AvBb) Gi aviv 3 Ges (amending Ordinances), evsjv‡`‡ki msweav‡bi PZz_© Zdwm‡j 19 Aby‡”Q` evwZj †NvwlZ nIqvq D³ mg‡qi g‡a¨ RvixK…Z D³ Aa¨v‡`kmg~n Ggbfv‡e Kvh©Ki _vwK‡e †hb Dnv GB AvB‡bi D‡Ïk¨ Kvh©KvwiZv nvivBqv‡Q; Ges c~iYK‡í, RvZxq msm` KZ…©K cÖYxZ †Kvb AvBb t

Z‡e kZ© _v‡K †h, GB avivi Aaxb 1975 mv‡ji 15 AvM÷ nB‡Z 1979 mv‡ji 9 GwcÖj ZvwiL ch©šÍ mg‡qi †h‡nZz D³ Aa¨v‡`kmg~n I Dnv‡`i Aax‡b cÖYxZ wewa, g‡a¨ RvixK…Z KwZcq Aa¨v‡`k Kvh©KiY Kiv nB‡jI hZUzKz cÖweavb ev Av‡`ke‡j K…Z KvR-Kg©, M„nxZ e¨e¯’v ev Dnv‡`i welqe¯‘i (contents) mwnZ mswkøó ïaygvÎ ZZUzKz Kvh©avivmg~n, A_ev cÖYxZ, K„Z, M„nxZ ev m~PxZ ewjqv MÖnY Kiv nBqv‡Q g‡g© MY¨ nB‡e Ges D³ mgqKv‡j A‰ea we‡ewPZ KvR-Kg©, e¨e¯’v ev Kvh©avivmg~n AvB‡bi kvmb, I AmvsweavwbKfv‡e ivóªÿgZvq Avmxb mvgwiK kvmb RbM‡Yi AwR©Z AwaKvi msiÿY Ges cÖRvZ‡š¿i K‡g©i Avg‡ji K…Z K‡g©i Aby‡gv`b I mg_©b (confirmation avivevwnKZv envj I Aÿzbœ ivwLevi wbwgË, Rb¯^v‡_©, Dnv‡`i Kvh©KvwiZv cÖ`vb Avek¨K; Ges and ratification) Kiv nBqv‡Q ewjqv †Kvbµ‡gB we‡ewPZ nB‡e bv| ------†h‡nZz D³ mg‡q RvixK…Z KwZcq ms‡kvabx Aa¨v‡`k ------” (amending Ordinances) Øviv cÖPwjZ AvBb ms‡kvab Kiv nBqv‡Q weavq AvB‡bi kvmb, RbM‡Yi AwR©Z AwaKvi

msiÿY Ges cÖRvZ‡š¿i K‡g©i avivevwnKZv envj I Aÿzbœ 198. The above provision shows that the ivwLevi wbwgË, Rb¯^v‡_©, Dnv‡`i Kvh©Ki ivLv Avek¨K; Parliament instead of promulgating laws Ges confirmed and ratified 85 laws. Again the ------Parliament by Act 07 of 2013 ratified and ------confirmed the laws promulgated during the period between 24th March, 1982 and 11th †h‡nZz msweav‡bi 93(2) Aby‡”Q‡`i wb‡`©kbv c~iYK‡í, November, 1986 by the Martial Law authority. beg RvZxq msm‡`i 16Zg Awa‡ek‡bi 27 Rvbyqvwi 2013 The Act is as under: Zvwi‡L AbywôZ cÖ_g ˆeV‡K 2013 mv‡ji 2bs Aa¨v‡`k Dc¯’vwcZ nBqv‡Q Ges Dnvi cieZx© 30 w`b AwZevwnZ “1982 mv‡ji 24 gvP© nB‡Z 1986 mv‡ji 11 b‡f¤^i nB‡j Aa¨v‡`kwUi Kvh©KiZv †jvc cvB‡e; Ges ZvwiL ch©šÍ mg‡qi g‡a¨ RvixK…Z KwZcq Aa¨v‡`k Kvh©Ki Kwievi j‡ÿ cÖYxZ AvBb †h‡nZz `xN©mgq c~‡e© RvixK…Z Aa¨v‡`kmg~n hvPvB- †h‡nZz msweavb (cÂ`k ms‡kvab) AvBb, 2011 (2011 evQvBc~e©K evsjvq b~Zbfv‡e AvBb cÖYqb Kiv mgq mv‡cÿ; m‡bi 14 bs AvBb) Øviv 1982 mv‡ji 24 gvP© nB‡Z 1986 Ges mv‡ji 11 b‡f¤^i ZvwiL ch©šÍ mg‡qi g‡a¨ RvixK…Z ------Aa¨v‡`kmg~n Aby‡gv`b I mg_©b (ratification and ------The Law Messenger 388 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) †m‡nZz GZ`&Øviv wbæiƒc AvBb Kiv nBj :- those laws because he was a usurper. Most of the laws are very important and some of them 1| mswÿß wk‡ivbvg I cÖeZ©b| - (1) GB AvBb 1982 were promulgated affecting the fundamental mv‡ji 24 gvP© nB‡Z 1986 mv‡ji 11 b‡f¤^i ZvwiL ch©šÍ rights. As for example, the Acquisition and mg‡qi g‡a¨ RvixK…Z KwZcq Aa¨v‡`k Kvh©KiKiY (we‡kl Requisition of Immovable Property Ordinance, weavb) AvBb, 2013 bv‡g AwfwnZ nB‡e| 1982. It is an irony that the Parliament is totally (2) Bnv Awej‡¤^ Kvh©Ki nB‡e| unable to transact its basic functions but it wants to wise-pull one of the most successful ------organs of the State, that is, the Supreme Court ------of Bangladesh.

200. The word ‘ratification’ implies 4| KwZcq Aa¨v‡`‡ki Kvh©KvwiZv cÖ`vb| - 1982 confirmation or adoption of an act that has mv‡ji 24 gvP© nB‡Z 1986 mv‡ji 11 b‡f¤^i ZvwiL ch©šÍ already been performed. This word carries (Dfq w`bmn) mg‡qi g‡a¨ RvixK…Z – synonymous meaning as used in respect of (K) Zdwmjfy³ Aa¨v‡`kmg~n, Ges ratification of American Constitutional Amendment by different States or ratification (L) Ab¨vb¨ Aa¨v‡`kmg~n Øviv cÖPwjZ †Kvb of treaties, international laws. Under the AvBb, Av‡`k ev Aa¨v‡`k ms‡kvab Kiv nBqv American Constitution there are two _vwK‡j D³ ms‡kvabx Aa¨v‡`kmg~n (amending Ordinances), procedures for ratifying the proposed amendment, which requires three-fourths of the Ggbfv‡e Kvh©Ki _vwK‡e †hb Dnv GB AvB‡bi D‡Ïk¨ States' (presently 38 of 50) approval: a) consent c~iYK‡í, RvZxq msm` KZ…©K cÖYxZ †Kvb AvBb t of the State legislatures, or b) consent of State Z‡e kZ© _v‡K †h, GB avivi Aaxb 1982 mv‡ji 24 gvP© ratifying conventions. The ratification method nB‡Z 1986 mv‡ji 11 b‡f¤^i ZvwiL ch©šÍ mg‡qi g‡a¨ is chosen by Congress for each amendment. RvixK…Z KwZcq Aa¨v‡`k Kvh©KiKiY Kiv nB‡jI hZUzKz 201. In contract law, the confirmation of a Dnv‡`i welqe¯‘i (contents) mwnZ mswkøó ïaygvÎ ZZUzKz previous act done by the party himself or by MÖnY Kiv nBqv‡Q g‡g© MY¨ nB‡e Ges D³ mgqKv‡j A‰ea another is called ratification of a voidable act. I AmvsweavwbKfv‡e ivóªÿgZvq Avmxb mvgwiK kvmb Ratifications are either express or implied. The Avg‡ji K…ZK‡g©i Aby‡gv`b I mg_©b (confirmation former are made in express and direct terms of and ratification) Kiv nBqv‡Q ewjqv †Kvbµ‡gB we‡ewPZ nB‡e bv| assent; the latter are such as the law presumes from the acts of the principal. By ratifying a ------contract, a man adopts the agency, altogether, ------” as well what is detrimental as that which is for his benefit. As a general rule, the principal has the right to elect whether he will adopt the 199. In Civil Appeal No.48 of 2011 this court directed the Parliament to promulgate the unauthorized act or not. But having once laws which were declared void during that ratified the act, upon a full knowledge of all the period. In the said Act 81 laws were ratified material circumstances, the ratification cannot although this court directed to promulgate fresh be revoked or recalled, and the principal law because of the fact that the martial law becomes bound as if he had originally regime had no right or authority to promulgate authorized the act. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 389 202. The ratification of a lawful contract Ordinances as Acts of Parliament namely Acts has a retrospective effect, and binds the 6 and 7 of 2013 (both of these Acts are principal from its date, and not only from the enabling Acts too). The short titles of these two time of the ratification, for the ratification is Acts are respectively, ‘Act effectuating (special equivalent to an original authority, according to provisions) a few Ordinances promulgated the maxim “omnis ratihabitio retro trahitur et from and between 15 August 1975 to 9 April mandato aequiparatur” meaning every consent 1979’ and ‘Act effectuating (special given to what has already been done, has a provisions) a few Ordinances promulgated retrospective effect and equals a command. from and between 24 March 1982 to 11 This concept is generally used in contract law November 1986’. regime between principal and agent. 205. Confirmation and/or ratification is not 203. In respect of international treaty, any recognized mode of making laws in ‘ratification’ defines the international act Bangladesh. In the constitution none of these whereby a State indicates its consent to be words even used in the remotest sense of bound to a treaty if the parties intended to show making laws. According to article 152 of our their consent by such an act. In the case of constitution, ‘“law” means any Act, Ordinance, bilateral treaties, ratification is usually order, rule, regulation, bye-law, notification or accomplished by exchanging the requisite other legal instrument, and any custom or instruments, while in the case of multilateral usage, having the force of law in Bangladesh;’. treaties the usual procedure is for the But on the contrary, through Acts 6 and 7 of depositary to collect the ratifications of all 2013, the Parliament mere ratified a bunch of States, keeping all parties informed of the laws made by the military usurpers and situation. The institution of ratification grants declared void by this Court. This Court feels States the necessary time-frame to seek the embarrassed when the matters are being heard required approval for the treaty on the domestic basing upon these laws. level and to enact the necessary legislation to 206. Before assuming the powers the give domestic effect to that treaty. [Arts.2 (1) members of Parliament should have considered (b), 14 (1) and 16, Vienna Convention on the as to whether they are capable of dealing with Law of Treaties 1969] such responsibility. In this connection I would 204. According to Chapter II and III of like to reproduce some valuable words of a PART V of the constitution of Bangladesh, law scholar of this subcontinent. At the time of may be promulgated in three ways as ordained adopting the constitution of India, Dr. Rajendra in articles 80, 93, and 65 (1) (subordinate Prasad in the Constituent Assembly said: legislation through delegated power). The “Whatever the constitution may or may Supreme Court in its landmark judgment on not provide, the welfare of the country Fifth and Seventh Amendments cases declared will depend upon the way in which the that the laws must be made by the competent country is administered. That will depend Parliament abolishing the laws made by and upon the men who administer it. If the during the illegal usurper martial law regime, people who are elected, are capable and but the government without legislating new men of character and integrity, they laws promulgated two enabling Ordinances in would be able to make the best even of a the first place and then regularized those defective constitution. If they are lacking The Law Messenger 390 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) in these, the constitution cannot help the agents in utilizing opportunities for reasonable country. After all, a constitution like a realisation....’ (Amartya Sen – The Idea of machine is a lifeless thing. It acquires life Justice). This is what we call ‘institutional because of the men who control it and virtuosity’ by itself is not enough without operate it, and India needs today nothing ‘individual virtuosity’ and we have to strive for more than a set of honest men who will that if we really want to build the have the interest of the country before Bangabandhu’s dream of ‘Sonar Bangla’. them. 208. After independence, those unholy It requires men of strong alliances of power-mongers twice reduced this character, men of vision, men who will country to a banana Republic, where people are not sacrifice the interests of the country, seen as commodity which can be bluffed and at large for the sake of smaller groups compromised at any unworthy cost to legalize and areas and who will rise over the their illegitimate exercise of power. They did prejudices which are born of these not empower the people, rather they abused differences. We can only hope that the their position and introduced different bluffing country will throw up such men in tools (sometimes gono vote, sometimes rigged abundance.” (Constituent Assembly election and sometimes no election at all!) as Debates, Vol-XI) means to prolong their power game. Thus as 207. These statements focused on the an institution, the notion of ‘politics’ has been quality of a person who would represent the completely destroyed. Dirty political practices people to build a welfare State by promulgating of those undemocratic regimes even to a great laws. He must have integrity and be a man of extent infected the civil politics. Politics is no character. Even laws may be defective but if a longer free, it is now highly commercial and parliamentarian possesses all the qualities that money is in the driving seat which controls the are required to have with him, the foundation course of action and its destination. Now of democracy may be shaped phase by phase. power, not merit, tends to control all public This was the fervent hope of the millions who institutions of the country. Irony of the history fought for the establishment of a country where is that with the unflinching determination and there will be democracy and rule of law. This indomitable spirit, we were able to free a faith has to be restored failing which the country from the clutches of a military independence will be meaningless. “There is no superpower but we have been measurably automatic guarantee of success by the mere defeated by ourselves in that very free country. existence of democratic institutions. The 209. Even after forty-six years of success of democracy is not merely a matter of independence, we have not been able to having the most perfect institutional structure institutionalize any public institutions. There that we can think of. It depends inescapably on are no checks and balances, there is no our actual behaviour patterns and the working watchdog mechanism at work, thus the people of political and social interactions. There is no in the position are being indulged into abuse of chance of resting the matter in the ’safe’ hands power and showing audacity of freehand of purely institutional virtuosity. The working exercise of power. The state power, which is of democratic institutions, like all other another dimension of political power, is institutions, depends on the activities of human becoming a monopoly of a few now-a-days and The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 391 this suicidal tendency of concentration of like India, there is strong criticism against power is increasing. The greed for power is a Parliamentarians, Parliament, and bureaucracy like plague, once set in motion it will try to and to some allowable extent against the devour everything. Needless to say, this WAS Judges of the High Courts and lower courts. In NOT at all the aims and vision of our liberation comparison to the standard of democracy, struggle. Our Forefathers fought to establish a bureaucracy, freedom of press and rule of law democratic State, not to produce any power- they have been able to establish, we cannot monster. even think to be a match with them in any manner. In this connection, I fully endorse the 210. The human rights are at stake, views expressed by a renowned jurist of this corruption is rampant, Parliament is sub-continent Justice V. R. Krishna Iyer, in his dysfunctional, crores of people are deprived of book ‘Legally Yours’ as under: basic health care, mismanagement in the administration is acute, with the pace of the ‘Elections are indispensible if developed technology, the crimes dimension is democracy is to survive. Elections as changing rapidly, the life and security of the instruments become purposeful if only citizens are becoming utterly unsecured, the there is a management study of the law enforcing agencies are unable to tackle the Houses. What we see today in the situation and the combined result of all this is a Houses is howling not deciding because crippled society, a society where good man the members are not inspired by sense of does not dream of good things at all; but the management but only of grabbing power. bad man is all the more restless to grab a few Power without efficient objectives ceases more of bounty. In such a situation, the to be serving a democratic rule of law. Executive becomes arrogant and uncontrolled The Legislature becomes a paralyzed and the bureaucracy will never opt for instrument without rules regulating the efficiency. governance of the House. It often happens that members are at cross 211. Even in this endless challenge, the purposes and without a sense of judiciary is the only relatively independent harmony. Efficient administration of the organ of the State which is striving to keep its Houses ceases to be a reality when the nose above the water though sinking. But Executive and the Legislature judiciary too, cannot survive long in this malfunction. The judiciary is supposed to situation. Yet, no law has been formulated for settle disputes and see that the selection and appointment of Judges in the Constitution functions through correct higher judiciary. There is no scope for interpretation and enforcement of the imparting training to the Judges of the higher provisions of the Constitution. But when judiciary. It is the high time for formulating the judiciary is not properly trained and laws for the selection of the Judges and their produced added confusion by the Ipse training so that they can be equipped to face the Dixit of the ignorant Judges in their st challenges of 21 century. Instead of arrogance and arbitrary rule, the strengthening the judiciary, the Executive is Judiciary and as such the democratic now trying to cripple it and if it happens, there system as a whole also fails. Thus we could be disastrous consequences. Even in find that the management of the matured democracy, bureaucracy and judiciary Executive, of the Legislature, of the The Law Messenger 392 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Judiciary is important if these three USA, Canada and India did not deter from instruments of the State are to produce an making the Judges accountable to the orderly administration. In short, the representatives of the people. The Judges even paramount purpose of good democracy feel proud that they are accountable to no other makes it obligatory to have management person but to the representatives of the people. of each branch of administration with He further adds that if some prospective intellectual clarity and scientific candidate for the post of a Judge feels himself methodology but alas, management itself ‘too big, too great, too superior to the requires refinement. Absent that, today if representatives of the people, they are not society is to enjoy good Governance welcome to the judiciary - they may even quit.’ have the cosmos not to end up in chaos, Mr. Ajmalul Hossain echoed him and high priority must be imparted to the submitted that if the provision of the Judges study of management in the field of removal mechanism is left with the judiciary, politics, public business and there will be likelihood of eroding public administration of the laws. The perception towards the judiciary. Executive becomes arbitrary, arrogant and authoritarian, absent the Legislature 213. Mr. M. Amirul Islam has pointed out which is the people’s voice to make the remarks of the historian Lord Acton. He said Executive democratic. The Legislature ‘All power tends to corrupt. Absolute power when geared to majority power ceases to corrupts absolutely’. Now, there remains a be scientific, sensitive and didactic and question as to who should control the exercise can be fit only if there is an independent of power? Lord Denning said ‘someone must Judiciary truly learned and insightfully be trusted. Let it be the Judges’. The Attorney aware of the purpose of the Constitution. General made very unkind remarks towards the Thus, the Judiciary is all important in a Judges and if he or the government does not democracy. The management of the repose trust upon the Judges, I would say, he is Judiciary including the selection of wrong and he should advise his client that if it judges and functioning methods is of key is the perception of the government that the importance. Regrettably there is no law Judges are not independent and fair, then there regulating the functionalism of the would be none in the country to repose trust Judiciary itself. This failure leads to upon. More so, if we agree with his argument judicial conflicts, poor selection and then most of the constitutions of the globe sometimes ghastly performance and if seem to have adopted the wrong method in this the Judiciary fails, the Constitution regard! In addition to that, Mr. Ajmalul collapses and the other two branches Hossain has also made an unkind and become menaces.’ (emphasis supplied) derogatory remark towards the Judges of the 212. Learned Attorney General argues that higher judiciary. In his written argument, he judiciary being an organ of the State, it is not mentioned that “since the judiciary has an fair for the Judges to administer justice on their interest in this case, it should be extremely own, which is contrary to the rule of law. careful in deciding the case”. Learned Attorney General adds that the 214. We are astounded and surprised by accountability of the Judges should be left with reading this remark. If a senior counsel like the representatives of the people. The people of him has this perception towards the judiciary The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 393 we feel sorry for him. The Judges and the Complaints procedures represent a judiciary have no interest in any cause while carefully calibrated effort to reconcile the they administer justice. If the Judges have any need for judicial accountability, with the interest in any matter, it is proper to delete preservation of the independence of the articles 7(2), 26, 94(4), 102 and 116A from the judiciary. This process includes an constitution but keeping these provisions in the ‘institutional filter’ in the form of the constitution, he should not harbour any doubt judicial prescreening process, which about the impartiality of the Judges in the maintains an appropriate relationship administration of justice. Clause (4) of article between the judiciary and outside 94 says, subject to the provisions of the influences. Complaints are considered constitution, the Chief Justice and other Judges internally, and are only referred for an shall be independent in the exercise of their inquiry where the CJC itself determines judicial functions and article 116A says, that the complaint is sufficiently serious subject to the provisions of the constitution, all and sufficiently meritorious as to persons employed in the judicial service and all potentially warrant the removal of the Magistrates shall be independent in exercise of judge”. their judicial functions. The concept of 216. This observation of the highest court accountability of a Judge individually and the negates the submission of the learned Attorney judiciary as a whole should be understood in this context. Almost eighty percent of the General that the Canadian jurisdiction did not litigations pending in the courts are either deter from making their Judges accountable to against the State or State is seeking justice the representatives of the people. from this judiciary. 217. While judicial independence forms an 215. A careful look into the very scheme of important guarantee, it also has the potential to the constitution will reveal that the judiciary is act as a shield behind which Judges have the an independent organ of the State, which has opportunity to conceal possible unethical no interest in any litigation pending before it. behaviour. For this reason, Judges conduct Rather, the political government has interest in themselves according to ethical guidelines. In many disputes and the Parliament is composed order to provide Judges with rules of conduct of the representatives of a political party, who and ethics, several countries have approved have the majority of the members to form the Codes of ethics to regulate judicial behaviour. government under the constitution. The constitution itself guarantees independence and In some cases, Judges have drafted these Codes impartiality of the Judges. In this connection and in other cases, governments have Mr. A.J. Mohammad Ali has referred to a case formulated Rules. In the international sphere, of Canadian Federal Court, which is very the Bangalore Principles of Judicial Conduct significant to meet the questions raised by Mr. contain a set of values that should determine Ajmalul Hossain and the learned Attorney judicial behaviour. These values, which are General. In Justice Paul Cosgrove V. Attorney reflected in most Codes of Conduct, are; General, Ontario, 2005 FC 1454, it was independence, impartiality, integrity, propriety, observed: equality, competence and diligence. Grounds “The Canadian Judicial Council for removal based on a Judge’s conduct will Inquiries and Investigations by-laws and normally be based on these principles. The Law Messenger 394 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 218. It is worth distinguishing between Constitution and the law and shall conduct judicial accountability for the discharge of themselves in accordance with a Code of professional functions, for which there are clear Conduct’. rules of conduct, and accountability for 220. Accountability of the judiciary may be ordinary crimes Judges may commit in their to the law and the constitution and to the private capacity, for which the applicable rules public. Judicial criticisms by the public and the are the same as for other individuals. A Judge press are a recognition that the independence of cannot be called to account for his judicial Judges is not absolute, but is subject to certain adjudication and there is no question of such limitations. It is for this reason that throughout accountability. Non-accountability of a Judge history Judges have been criticized, sometimes cannot be abused by him by being negligent. savagely and severely, by the Members of The principle of non-accountability is that the Parliament, government officials, the press and occasion for it would never arise at that level. the public for decisions they have made in The Chief Justice and Judges are constitutional particular cases. The justification for such functionaries. They hold constitutional office criticism seems to be anchored in the fact that and not a post as in civil services. They are not as long as courts continue to serve as the stage servants of anybody and have no master for contentious battles over emotionally whatsoever. There is no master and servant charged issues of corruption, crime and high relationship at all between them and any body profile cases, Judges are criticized and attacked else, least of all the other branches or for decisions they make. In the modern government. Under the constitution, the higher environment, the concept of accountability, judiciary is entirely separated from the permeates public life. Executive and Legislature and is absolutely independent. The accountability, its nature and 221. In a democracy based on the rule of extent of the superior judiciary are only to be law, it is now the expectation of every citizen found within the confines of and as envisaged that all aspects of the government ought to be by the constitution and the laws. By the very highly accountable. As a matter of fact, it nature of the office held, powers exercised and should be remembered that the judiciary has duties discharged under the constitution and the historically been one of the most accountable laws, they are answerable to none except their organs of the State. The concept of judicial conscience. accountability can broadly be said to refer to the notion that Judges or those who sit in 219. Accountability and independence of judgment over others need to account for their the judiciary are closely interlinked. Judges are judicious and injudicious conduct. The constrained by existing laws, procedures and emerging right to democratic governance has practices. They do not act as they please; come with a call for accountability of all public otherwise Justice would be sacrificed at the institutions. alter of another, namely, independence. Judges are therefore not free to act perversely or for 222. The legislature is composed of ulterior motives. Inevitably, they find members who represent an electorate. They are themselves under control of either a judicial or accountable to this electorate. The executive an administrative nature. Constitution of branch also has, at the end of the day, to Zambia states that ‘the Judges shall be account to those who put them in office. In independent, impartial and subject only to this their day to day functions, Judges wield The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 395 tremendous pressure. They are to review the periodic elections. The Executive is decisions of both legislature and executive accountable to the Legislature and ultimately to branch of the government. It is again, a concept the electorate. And, in both cases, the courts in of democratic governance to guarantee judicial the exercise of their powers of constitutional independence, which requires that the judiciary and judicial review may invalidate laws passed must, in the performance of its function, be free by the Legislature and overturn decisions made from any interference, be it political, by the Executive if after judicious scrutiny it is parliamentary, administrative, executive or found that the law passed or the decision made otherwise. This principle of non-interference are not in accordance with the constitution or permeates to all who sit on the Bench. The with the law. judiciary is a sacrosanct and inviolable sanctuary of its occupants. It goes without 225. On the other hand, Judges are neither saying that Judges being human do make subject to periodic elections nor subject to mistakes, some of which could be unintentional censure. They serve till they reach retiring age. but with devastating effects on individuals, but They may be removed only for proved those mistakes may be rectified through several misbehaviour or incapacity or gross layers of appeal and review. misconduct. No other authority hovers over their shoulders to see whether they are 223. Now-a-days judicial accountability, performing their functions properly. therefore, even in the absence of specific Consequently, this has led to a perception that provisions in a constitution, is accepted as the Judges, particularly those who serve in the reverse side of judicial independence and not as superior courts, are irresponsible and interference or a limitation. As long as Judges undemocratic, especially when they invalidate are charged with the responsibility of laws passed by representatives or overturn protecting human rights and freedoms of the decisions of elected governments. citizenry, they are stewards to the public for 226. Judges, as public servants, are their judicial performance. The Founding accountable to the people as to how they Fathers of most constitutions seem to have exercise their powers, albeit not in the same taken special precautions to isolate the way as other branches of government. judiciary from the Executive and the However, the concept of accountability is said Legislative influence. They did not wish the to be a facet of the concept of democracy. This Judges to be subject to the executive means that any individual, authority or dominance. They must also have been afraid institution that exercises the power of that there might be times when the Executive governance of any kind, exercises it for and on and the Legislature might respond to political behalf of the governed and, therefore, should and social convulsions and act hastily and be accountable to them for its exercise. oppressively. But as repositories of public Certainly, the Judges are accountable but the power, all the three branches of the State hold question is, accountable to whom? And how far that power in trust for the people and for the does the Judiciary measure up to this standard accomplishment of their constitutionally of accountability? Thomas Jefferson once said: assigned tasks. “Man is not to be trusted for life, if secured 224. In a democracy, the Legislature is against all liability to account’. The question accountable to the people through regular and that should not be overlooked when we The Law Messenger 396 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) deliberate on judicial accountability is this: Disciplinary proceedings must be conducted by who Judges the Judges? an independent and impartial body and in full respect for procedural guarantees. 227. Judicial accountability is manifested in several ways. In most countries, the business of 228. In the Bangalore Principles of Judicial all courts is, except in extraordinary Conduct 2002, the first principle is that circumstances, conducted in public. In terms of ‘impartiality is essential to the proper discharge practice and procedure, Judges resolve disputes of the judicial office. It applies not only to the under the obligation to publish full reasons for decision itself but also to the process by which their decisions. Thus, the public hearing and the decision is made.” The second principle is the reasoning underlining judicial decisions are that ‘integrity is essential to the discharge of forms of accountability. Another form of the judicial office’. The fourth principle is that judicial accountability is that each decision, ‘ensuring equality of treatment to all before the other than those of the ultimate court of courts is essential to the due performance of appellate is subject to being appealed. The judicial office’. And the fifth principle is that criticisms of the appeal courts may be ‘competence and diligence are prerequisites to published without limitation. Academics, legal the due performance of judicial office’. In a academics, lawyers and researchers are free to paper under the heading Judiciary of England criticize judicial reasoning. One commentator and Wales, a question was posed for what once said, “if you have Judges with high should individual Judges and Judiciary as an character, knowledge, and commitment to the institution be accountable? In answering the rule of law, that in itself is a measure of question the following principles were cited accountability”. Possibly the answer lies here if ……….. the State wants the Judges should be accountable measures should be taken and law a) The nature and form of should be framed for elevation of Judges in the accountability depends on the higher court with high character, qualification, responsibilities and conduct of the knowledge, commitment and professional individual or the group. experience. As a general rule, b) The vital importance of the Judges can only be removed for serious independence of individual Judges and misconduct, disciplinary or criminal offence or the judiciary as a body, now recognised incapacity that renders them unable to by section 3 of the CRA, follows from discharge their functions. This should only the judiciary’s core responsibility as the occur after the conduct of a fair procedure. branch of the State responsible for Judges cannot be removed or punished for providing the fair and impartial bona fide errors or for disagreeing with a resolution of disputes between citizens particular interpretation of the law. and between citizens and the State in Furthermore, Judges enjoy personal immunity accordance with the prevailing rules of from civil suits for monetary damages arising statutory and common law. from their rulings. Judges conduct themselves according to ethical standards and are held c) Neither individual Judges nor accountable if they fail to do so. International the judiciary as a body should be subject law clearly establishes that Judges can only be to forms of accountability prejudicing removed for serious misconduct or incapacity. that core responsibility. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 397 d) Within the resources provided, and the public at large and the appellate courts and subject to the areas for which there is to whom through a written judgment for their shared responsibility with the Lord decision to resolve legal dispute one way rather Chancellor, the responsibility of the Lord than another. Their reasoned decision is Chief Justice for deployment of assessed according to the relevant legal individual judges, the allocation of work standards, with shortcomings liable to render within the courts, and the well-being, the decision amenable to appeal. It is stated: training and guidance of serving (full and (a) This follows that one cannot part-time) judges, mean that the judiciary properly be made accountable for that for is responsible for:- which one is not responsible. i. An effective judicial system, Accordingly, for example, including the correction of errors; notwithstanding the extent of judicial ii. Training Judges in the light of representation on the Judicial changes in law and practice; and Appointments Commission, it is the Commission and not the judiciary which iii. Identifying and dealing with is responsible for and therefore pastoral, equality, and health and safety accountable for appointments and it is issues concerning serving judges. the Lord Chancellor who is responsible The Lord Chancellor and the for and therefore accountable for Lord Chief Justice share providing resources for the courts and responsibility for the provision of a the judiciary. For this reason, issues of complaints and disciplinary system accountability concerning the to identify and deal with issues of appointment process and the resourcing competence, misconduct, and of the courts are not discussed. personal integrity. (b) Judicial independence is not an e) Within a common law system absolute concept and there are many the judiciary is responsible for the formulations of it. There is, however, interpretation of statutes and the general agreement that the minimum development of the non-statutory requirements are that the judiciary is principles embodied in case-law. impartial, that its decisions are accepted, This is done by the system of that it is free from improper influence, precedent and incremental and that it has jurisdiction, directly or by development of the principles of way of review, over all issues of a law, in particular by appellate justifiable nature so that it is capable of courts. rendering justice on all issues of substantial legal and constitutional 229. There is no gainsaying that in the importance. courtroom, a Judge is both an account-receiver and an account-giver. The court is a forum of (c) The executive, legislative and legal accountability, where Judges hold judicial branches of the State should disputants, including public actors, to account show appropriate respect for the different for legal wrongs. As an account-giver, the positions occupied by the other branches. Judge provides detailed reasons to the litigants The need for appropriate respect for the The Law Messenger 398 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) different positions occupied by others Service (HMCS) (for providing court also applies to respect for and by the buildings and court staff). To voluntarily media. The branches of the State should offer what is a form of “explanatory” respect the importance in a democratic accountability for the matters which are society of vigorous scrutiny by the the responsibility of the judiciary set out media, and the media should recognize in “d” is not inconsistent with the the positions of and restrictions on the requirements of judicial independence. branches of the state, including the (e) One of the justifications for two judiciary. The limits of what it is proper levels of appeal (to the Court of Appeal for Judges to say to Parliamentary and then to the House of Lords) is the Committees, Ministers, the media, or in particular responsibility of the judiciary lectures, follow from the need to in a common law system for developing safeguard the core constitutional the law. (Robin Cooke, Empowerment responsibility of the judiciary. The and Accountability the Quest for corollary should be that government Administrative Justice (1992) 18 ministers, Members of Parliament, and Commonwealth Law Bulletin 1326). the media should also respect the need to safeguard and to avoid prejudicing or 230. As complementary to the preceding corroding this core responsibility. That discussions, two forms of accountability can be should limit what it is appropriate to say considered for clearer understanding of the to or about Judges and individual issues involving accountability, such as: decisions.  Internal accountability to more (d) The structure of the system senior Judges or courts by way of (a) the including the appellate process and the system of appeals against judicial process for making complaints about the decisions, and (b) procedures for dealing conducts of Judges is determined by with complaints about the conduct of statute and regulation and, in the case of judges, complaints and discipline, by the  External accountability to the Concordat. The appropriate forms of public by way of amenability to scrutiny accountability are thus in part identified in particular by the media, but more by those instruments. To furnish widely by civil society, information about court process, delays, workloads, training, appeals, complaints, 231. Needless to say that these various lack of integrity and misconduct and forms of accountability overlap. For instance, equality issues to Parliament and the the appeal and complaints processes provide public is an appropriate way of both internal accountability and accountability explaining, justifying and opening these to the public, and the giving of evidence to areas to public examination and scrutiny. legislative committees provides direct It can also identity the boundary between accountability to Parliament and indirect the respective responsibilities of the accountability to the public. (Ibid) judiciary (for the business of the courts) 232. There are clear links between the and of the Lord Chancellor (for features of individual accountability and the resourcing the courts) and HM Courts question of institutional accountability. It is The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 399 important to distinguish the accountability of Judges of their core responsibility to resolve the judiciary as an institution from that of the disputes fairly and impartially. The Lord courts as an institution and that of HMCS (Her Chancellor’s role in the consideration of Majesty’s Court Service) in UK or Canada. complaints and disciplinary proceedings This is because of the responsibility of the Lord against Judges is not inconsistent with this. The Chancellor (to some extent equivalent to law requirement that the Lord Chancellor and the Minister in Bangladesh) for the resourcing of Lord Chief Justice have to agree before a Judge the courts. For example, if a lack of resources is removed or disciplined in some other way means there are insufficient courts, court staff ensures that the independence of an individual or Judges and the result of this is delay, it is the Judge is not improperly infringed, either by the Lord Chancellor and not the judiciary who is executive, or internally by another member of responsible and accountable. the judiciary. (Ibid) 233. The responsibility of the judiciary for 236. Learned Attorney General submitted the deployment of Judges, training, pastoral that the removal of Judges of the higher issues, part of the complaints and disciplinary judiciary is not based on political decision of system, and the provision of an effective the party in power. The separation of power judicial system within the resources provided contained in the constitution should be mean that it is legitimate for there to be some perceived. If the Executive commences any act form of accountability in respect of these in violation of law, the court has power to matters. In respect of those matters on which declare it void. Similarly, if the Parliament the judiciary shares responsibility with the promulgates any law or amend the constitution Lord Chancellor, it is legitimate for there to be the court has power to test the constitutionality a measure of “explanatory” accountability by of the that law or amendment through ‘judicial the judiciary. (Ibid) review’. On the other hand, by reason of 234. Individual Judges are subject to a Supreme Judicial Council the judiciary’s strong system of internal accountability in accountability has been kept with the judiciary respect of legal errors and personal conduct, which is inconsistent with the principles of but outside the judiciary these are often not separation of power. He further submits that if understood in terms of accountability. the judiciary retains the disciplinary Individual Judges are accountable to the public mechanism of the higher judiciary with them it in the sense that in general their decisions are would be contrary to the principle of Rule of made in public and are discussed, often law and furthermore, it would also be critically, in the media and by interest groups inconsistent with balance of power and and sections of the public affected by them. violative of article 7 of the constitution. The judiciary is similarly institutionally 237. The latter part of the submission is accountable in respect of first instance and devoid of substance. There is no gainsaying appellate decisions. that an independent and impartial judiciary is a 235. Neither individual Judges nor the precondition of rule of law. Durga Das Basu in judiciary is, nor should they be, accountable to his ‘Limited Government and Judicial Review, the Executive branch of the State because that 1972’ commented ‘Independence and is inimical to the judicial independence which Impartiality are, in fact, intertwined and it is is a necessary requirement for the discharge by futile to expect an impartial judgment from a The Law Messenger 400 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) judge who is not immune from extraneous to make any law whatever; and, further, influences of any kind whatsoever.’ that no person or body is recognised by the law of England as having a right to 238. In this connection, I would like to override or set aside the legislation of quote the observation of Abraham Lincoln in Parliament.” (What is Parliamentary his First Inaugural Address: Sovereignty? by Carl Garnder). “I do not forget the position assumed 240. Thus, it is abundantly clear that the by some, that constitutional questions are British Parliament can make any law to be decided by the Supreme Court; nor whatsoever and that no one can override or set do I deny that such decisions must be aside a law passed by the Parliament. All of binding in any case, upon the parties to a this is in contrast to legislatures whose power is suit, as to the object of that suit.... And legally constrained, usually by a written while it is obviously possible that such constitution. In the United States, for instance, decision may be erroneous in any given free speech is famously protected by the First case, still the evil effect following it, Amendment to the constitution, which says being limited to that particular case, with Congress shall make no law.... abridging the the chance that it may be over-ruled, and freedom of speech, or of the press.... never become a precedent for other cases, can better be borne than could the 241. Those first five words show us that evils of a different practice.” Congress is not sovereign like British Parliament. The U.S. constitution is a higher (Abraham Lincoln in his First Inaugural law, limiting its legislative competence of the Address (1861). RP Basler, The Collected Congress. It follows that American Judges Works of Abraham Lincoln, Vol IV New review the constitutionality of Congress’s laws, Brunswick NJ, Tutgers University Press, 1953 and set them aside if they are in breach – 268.) something Dicey’s second principle tells us 239. The learned Attorney General has can’t happen in English judicial framework. made a hotch-potch in his submission. He is 242. Parliamentary sovereignty may be rather confused regarding the doctrine of contrasted with separation of powers, which separation of power under the scheme of a limits the legislature’s scope often to general written constitution and unwritten constitution. law-making, and judicial review, where laws His submission in this regard is heavily passed by the legislature may be declared influenced and more befitting with the scheme invalid by the Supreme Court in certain and spirit of the British unwritten constitution. circumstances. Regarding unwritten constitution, Professor A.V. Dicey (1835–1922) gave a classic 243. In recent years some Judges and definition of Parliamentary sovereignty in his scholars in Britain have questioned the ‘Introduction to the Study of the Law of the traditional view that Parliament is sovereign. Constitution’ as under: Various constitutional changes in the United Kingdom have influenced the renewed debate “The principle of Parliamentary about Parliamentary sovereignty: Sovereignty means neither more nor less than this, namely, that Parliament... has, “The devolution of power to devolved under the English constitution, the right legislatures in Scotland (Scottish The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 401 Parliament), Wales (Wales Assembly) that case Kitto,J. observed that a judicial power and Northern Ireland (Northern Ireland involves, as a general rule, a decision settling Assembly): All three bodies can pass for the future, as between defined persons or primary legislation within the areas that classes of persons, a question as to the have been devolved to them, but their existence of a right or obligation, so that an powers nevertheless all stem from the exercise of the power creates a new charter by UK Parliament and can be withdrawn reference to which that question is in future to unilaterally. The Northern Ireland be decided as between those persons or classes Assembly, in particular, has been of persons. (Ibid) suspended multiple times due to political 247. In the case of People’s Union for Civil deadlocks.” (Ibid) (Peter Gerangelos) liberties v. Union of India (2003) 4 SCC 399, 244. Under Federal System, neither the (Para 34), the Supreme Court held that ‘the States nor the Federal Parliament in Australia legislature has no power to review the decision have true parliamentary sovereignty. The and set it at naught except by removing the Commonwealth Parliament is created by the effect which is the cause pointed out by the constitution, and only has enumerated powers. decision rendered by the court. If this is Each State’s legislative power is inherent, but permitted, it would sound the death knell of the restrained by the Federal Constitution, State rule of law...the legislature also cannot declare Constitution, and commonwealth powers. any decision of a court of law to be void or of no effect,’...... ‘the legislature cannot overrule 245. In this context, parliamentary or supersede a judgment of the court without supremacy has two meanings: one is that lawfully removing the defect or infirmity Parliament can make and unmake any law; pointed out by the court because it is obvious another meaning is that as long as Parliament that the legislature cannot trench on the judicial has the power to make laws regarding a subject power vested in the courts.’ In Cauvery Water matter, the exercise of that power cannot be Disputes Tribunal (1993) Suppl (1) SCC 96(2), challenged or reviewed by judiciary. The and in Municipal Corn. Of City of Ahmedabad second meaning is more consistent with the v. New Shrook Spg. and Wvg Co. Ltd. (1970), 2 Federal system and the practice of judicial SCC 280, the Indian Supreme Court also held review, as judiciary cannot review on the similar views as in civil liberties. merits of the parliament (legislature)’s exercise 248. It is contended by the learned of power. (Ibid) Attorney General that by the Sixteenth 246. In this connection Griffith, CJ. spoke Amendment, the Supreme Court undermined about the power which every sovereign must of the authority of the Parliament by keeping the necessity have to decide controversies between Supreme Judicial Council in the constitution in its subjects, or between itself and its subjects, its judgment and hence, it has thereby whether the rights relate to life, liberty or destroyed the basic structure of the property. The exercise of this power does not Constitution. begin until some tribunal which has power to 249. In Anwar Hussain Chowdhury, V. give a binding and authoritative decision Bangladesh, 1989 BLD (spl)1, this court held (whether subject to appeal or not) is called that the independence of judiciary is one of the upon to take action. (Huddarl, Paker & Co Pty basic pillars of the constitution which cannot be Ltd V. Moorhead (1909) 8 CLR 330 at 357). In demolished, whittled down, curtailed or The Law Messenger 402 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) diminished in any manner whatsoever and the 251. In India, Parliamentary sovereignty is constitution does not give the Parliament nor subject to the constitution of India, which the Executive authority to curtail or diminish includes judicial review. In effect, this means the independence of the judiciary by recourse that while the Parliament has rights to amend to amendment to the constitution. Learned the constitution, the modifications are subject Amici in the context of the above views in to be valid under the framework of the Anwar Hussain submit that the tenure of the constitution itself. For example, any Judges is very much part of the integrity of the amendments which pertain to the federal nature judiciary and pivotal to uphold and maintain of the constitution must be ratified by a the independence of judiciary; that the removal majority of State Legislatures also and the of the Judges must be by a proper process for Parliament alone cannot enact the change on its the sake of fairness, legal certainty and own. Further, all amendments to the transparency and avoidance of arbitrariness; constitution are also open to Judicial Review. that the process of voting in Parliament is a Thus, in spite of parliamentary privilege to political process and hence article 96(2) is amend the constitution, the constitution itself against the fundamental principles of rule of remains supreme. law; that the impugned amendment will make 252. In India there is no entrenched the Judges susceptible to a capricious political constitutional protection of the decisional process of voting in Parliament which may pass independence of the courts, although provision resolution for removal of a Judge on one hand, is made for the protection of judicial or may not do so in case of another and if that independence by securing tenure and being so, a Judge may be left at the mercy of remuneration (articles 124-125). Although the Parliament in any case. provision is made for the establishment of a 250. In Benazir Bhutto v. Federation of Supreme Court, with its powers and Pakistan PLD 1988 SC 416, the Supreme Court jurisdictions defined in Chapter IV, there is no of Pakistan expressed that ‘the Parliament in provision which vests the judicial power of the our Constitution does not enjoy the supreme Union in the Supreme Court, as there is in the status like the British Parliament….In our Australian and United States constitutions. Constitution, the legislative authority of the Accordingly, legislation cannot be invalidated Parliament is governed and limited by the on the grounds that it constitutes an invalid provisions of the Constitution.’ In Al-Jehad interference with, or usurpation of, the judicial Trust v. Federation of Pakistan PLD 1996 SC power in breach of a legally-entrenched 324, the Supreme Court of Pakistan also separation of powers. (H.M. Seervai, expressed that ‘the success of the system of Constitutional Law of India, Vol.1). However, governance can be guaranteed and achieved the Supreme Court does have the power, in the only when these pillars (the Executive, the manner of the United States Supreme Court Parliament and the Judiciary) of the state and the High Court of Australia, to invalidate exercise their power and authority within their legislation where it is otherwise beyond the limits.’ In the present context, particularly the competence of the legislature. weakness of the Parliamentary and democratic 253. In the Parliamentary System of institutions it cannot be said to be exaggerated democracy an important characteristic is the that the Sixteenth Amendment has transgressed predominance of the Cabinet which virtually the constitutional limit of Parliament. monopolizes the business of Parliament. So The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 403 long as the party in power commands the 256. Only the people are sovereign and majority support in Parliament, the Cabinet is only the constitution is supreme. All other in full control of Parliament and it is the institutions are merely the instruments or Cabinet that decides what shall be discussed in agencies to fulfill the greatest purposes Parliament, when it shall be discussed, how enunciated in the constitution. Our constitution long the discussion shall take place and what envisages not only a democracy of men but a the decision shall be. Practically all the Bills democracy of institutions. The attributes of that ultimately pass through Parliament are sovereign authority or unlimited power do not sponsored by the Ministers who are under the attach to any office or any institution. To claim constant pressure of organised groups and sovereignty for the Legislature is directly interests seeking redress through legislation. contrary to the law laid down by the Supreme 254. A member of Parliament who is not a Court of India and this court has approved the Minister may sponsor a Bill. (Rules 72 of the view. Democracy can survive only if basic Rules of Procedure). But the private member’s norms of public decency are maintained both Bill has little chance of being passed without within and outside the legislature. (Nani A. the government’s support. The power of the Palkhivala, We the Nation). private members in extremely limited and not 257. Mr. Manzill Morshid along with all much scope is left for their individual learned Amici Curies except Mr. Ajmalul enterprise and initiative. Most of the Hossain submit in unison that the impugned parliamentary time is consumed by the removal mechanism introduced by the government’s business and only one day in a Sixteenth Amendment being highly politicized week is reserved as private member’s day. The will be even more prominent in the current problem before a modern government is one of political context of Bangladesh especially due time and there are always a number of to the effect of article 70 of the constitution. government Bills waiting in the line for Article 70 reads as under: passage by Parliament. Consequently, the private member’s Bill is more often sidetracked “A person elected as a member of to accommodate the government’s business. Parliament at an election at which he was nominated as a candidate by a political 255. There is a misconception about the party shall vacate his seat if he- Parliamentary sovereignty or legislative privilege in a written constitution. The law (a) Resigns from that party; or on the subject has been clearly enunciated (b) Votes in Parliament against that by a Full Bench of the Supreme Court of party; India in Special Reference No.1 of 1964 but shall not thereby be disqualified for (AIR 1965 SC 745) laying down amongst subsequent election as a member of others that the court has jurisdiction to deal Parliament”. with the petition of a citizen committed for contempt by a Legislature, and to quash the 258. This article provides for vacation of committal where the legislature has seat of a member of Parliament amongst other exceeded its privilege, even if the warrant reasons that if he votes in Parliament against is unspeaking or general. An unspeaking the party which nominated him. The object of warrant cannot silence the constitution. this article is no doubt discernible that it is to The Law Messenger 404 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) ensure stability and continuity of government 260. The Indian Supreme Court held that a and also to ensure discipline among the member of Legislature who was elected as an members of the political parties so that independent candidate may support the corruption and instability due to political horse government from outside, but if he joins any trading can be removed from national politics. political party he has his seat vacated. (Jagjit If the members of Parliament are suspected to Singh V. Haryana, (2006) 11 SCC 1). To avoid indulge in horse trading if no such provision is such a situation, clause (3) of article 70 contained in the constitution, how they may be provided that if person after being elected as reposed with the responsibility of the onerous member of Parliament as an independent task of removal of Judges of the higher candidate joins any political party, he shall be judiciary. The spirit is that members elected to deemed to have been nominated by that party. the Parliament should continue to maintain The Fifteenth Amendment substituted article their allegiance to the party by which they have 70 by excluding the explanation in clause (1) and deleting clauses (2) and (3). As a result, the been nominated (Secretary, Parliament V. expression “vote against that party” cannot be Khondker Delwar Hossain, 1999 given the extended meaning and article 70 BLD(AD)276). providing for some sort of forfeiture clause is 259. Prior to the Fifteenth Amendment, the required to be strictly construed and a member expression, ‘voted against that party’ was given of Parliament cannot be said to have vacated an extended meaning by an explanation which his seat unless his case falls within the literal stipulated that if a member of Parliament being meaning of the substituted article 70. In view present in Parliament refrains from voting or of such provision it is questionable as to what abstains himself from any sitting of Parliament extent the members of Parliament can be ignoring the direction of the party nominating impartial and free from partisan political him for election, he shall be deemed to have directives at the time of exercising power of voted against that party. Clause (2) provided removal of Judges. the manner of determining the leader of a party 261. Mr. Hassan Ariff in this connection in case of dispute and directed that the rightly argued that this article places a member direction of the leader would be the direction of of Parliament within the clan and bounds of the the party for the purpose of article 70. political party to which he belongs and under Violation of any direction of the party will not which banner he was elected. He further necessarily lead to vacation of the seat. In order submitted that there has been a chequered story to attract article 70, the direction must be one of article 70 in keeping it in the constitution. In relating to voting in Parliament on an issue. the Twelfth Amendment this article was Violation of direction of a party to refrain from substituted as under: attending the sitting of Parliament will not “70(1) A person elected as a Member attract the mischief of article 70 as the of Parliament at an election of which he constitution contemplates the duty of the was nominated as a candidate by a members of Parliament to attend the sittings of political party shall vacate his seat if he Parliament and provides for vacation of seat for resigns from that party or votes in absence from Parliament for a specified Parliament against that party. number of sitting days. (Constitutional Law of Explanation.- If a Member Bangladesh, Mahmudul Islam, 3rd Edn.) of Parliament The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 405 (a) Being present in Parliament majority as members of Parliament form the abstains from voting. or Cabinet headed by the Prime Minister. Article 55(2) gives the Executive power of the (b) Absence himself from any Republic to be exercised by the Prime Minister sitting of Parliament, in accordance with the constitution. Article ignoring the direction of the party 55(4) says that all executive actions of the which nominate him at the election as a government shall be expressed to be taken in candidate not to do so, he shall be the name of the President and clause (6) of deemed to have voted against that article 55 provides that the President shall party.” make Rules for the allocation and transaction 262. In the said amendment clause (2) of of the business of the government. article 70 reads thus: 265. Under article 48 clause (3), the President in exercise of all his functions, save “If, at any time, any question as to the only that of appointing of the Prime Minister leadership of the Parliamentary party of a and Chief Justice, shall act in accordance with political party arises, the Speaker shall, the advice of the Prime Minister. From the within seven days of being informed of it above, Mr. Ariff and Mr. Rokonuddin Mahmud in writing by a person claiming the submit that this provision boils down that a leadership of the majority of the political party through the process of election members of that party in Parliament, secures majority of the seats in the Parliament convene a meeting of all members of i.e. members of Parliament under one banner of Parliament of that party in accordance a political party becomes majority members. with the rules of procedure of Parliament The leader of said political party who and determine its Parliamentary commands the support of the majority of the leadership by the votes of the majority members of Parliament form the Cabinet which through division and if, in the matter of runs the government. The theoretical separation voting in Parliament, any member does of power is completely diluted here, because not comply with the direction of the the members who are in the majority of the leadership so determined, he shall be Parliament legislate and the Cabinet which is deemed to have voted against that party formed from among them discharge the under clause (1) and shall vacate his seat function of the Executive part of the in the Parliament.” government. Therefore, legislation and 263. Clause (3) provides “if a person, after administration fall in the hands of the same being elected a member of Parliament as an group of members of Parliament. In that view independent candidate, joins any political of the matter, article 70 in any format ensure party, he shall, for the purpose of this article, adherence of members of Parliament belonging be deemed to have been elected as a nominee to a party to abide by the party instruction. of that party.” 266. Learned Attorney General argues that 264. The present article 70 has been the High Court Division has given a wrong substituted by the Constitution Fifteenth interpretation to article 70, but he has not Amendment as quoted earlier. The majority of explained as to which part of the findings in the members of Parliament come from political respect of article 70 is based on wrong parties. The political party which gains interpretation. The High Court Division The Law Messenger 406 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) observed that by reason of article 70, it has Parliament are found to be flawed, imposed a tight rein on the members of defective and of low standard. Instead of Parliament that they cannot go against their seriously performing their job of Party line or position on any issue in the lawmaking, the Members of Parliament Parliament; that they have no freedom to have become interested in getting question their party’s stance in the Parliament, themselves involved with the process of even if it is incorrect and flawed; that they removal of the Judges of the Supreme cannot vote against their party’s decision; that Court on the strength of the Sixteenth they are, indeed, hostages in the hands of their Amendment. It is not the job of the party high command; that what is dictated by lawmakers to judge the judges of the the Cabinet of the ruling party or the shadow Supreme Court of Bangladesh for their Cabinet of the opposition, members of misbehavior or incapacity” Parliament must follow them meekly ignoring 268. The above observations by the High the will and desire of the electorate of their Court Division regarding the members of constituencies. We find no infirmity in the Parliament are totally uncalled for and we do views taken by the High Court Division on not endorse this view at all. The court or the construction of article 70; and that in view of Judges should not make such derogatory article 70, the members of Parliament must toe remarks against the members of Parliament. the party line in case of removal of any Judges There should be mutual respect and harmony of the Supreme Court. Consequently, the between the court and the Parliament. Similarly Judges will be left at the mercy of the party the Parliament should not make any comment high command. We find nothing wrong in or remark or aspersion against any findings of taking the above view. the Supreme Court in any proceeding which is 267. However, in the majority judgment of barred by article 78(2) of the constitution and the High Court Division, it was observed that: rules 270 & 271 of the Rules of Procedure of “Our experience shows that a vast Parliament. More so, in a unitary form of majority Members of Parliament have government there cannot be any separation of criminal records and are involved in civil power in absolute sense of the word and litigations too. But by dint of the therefore, the Parliament and the Judiciary are Sixteenth Amendment, they have required to work in a harmonious way. become the virtual bosses of the Judges Accordingly, those remarks in the judgment of of the higher Judiciary posing a threat to the High Court division are expunged. their independence in the discharge of 269. We are of the view that in presence of Judicial functions ……. It has been article 70, it is difficult for a member of reported by the press that about 70% of Parliament to form an opinion independently the members of Parliament in ignoring the directions given by the party high Bangladesh are businessmen. Both Mr. command of the political party in power. That Mahbubey Alam and Mr. Murad Reza do being the position, it cannot be said to be not dispute this figure. That being so, our exaggerated that the members of the political experience shows that they are less party which gains majority in the Parliament interested in Parliamentary debate in the cannot remain independent when the question matter of lawmaking. Consequently now- of removal of a Judge would arise because the a-days most of the laws passed by the removal proceeding will be taken in the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 407 Parliament by the political party in power and judicial review was not the principal under such scenario, it will be questionable as remedy for the ills of balloting or to what extent the members of Parliament enforcement abuse more generally. would act impartially free from partisan Madison and his colleagues were more political pressure at the time of exercising the concerned that government be structured power of removal. In this connection, I have in such a way as to balance interests already mentioned the Sri Lankan and Indian against each other so none would come example about the removal of the Chief Justice to dominate. These balancing structures and a Judge of the Supreme Court. No one can have come to be referred to as federalism guarantee that keeping article 70 in the and separation of powers. constitution, a Judge would not be removed in The essence of this strategy is to create the manner the Sri Lankan Chief Justice had an oligopoly or a “shared” monopoly of been removed. power. This scheme preserves a 270. It is admitted from the Bar that the monopoly of power but purports to independence of judiciary is a basic structure of divide this power among a number of the constitution. Now the question is whether groups, each having limited jurisdiction by the Sixteenth Amendment through which over the others. So, for example, there Judges removal mechanism has been given might be a division of powers between with the Parliament, the independence of groups of people known as “state judiciary has been curtailed or impaired. Mr. officials” and others called “federal Murad Reza, learned Additional Attorney officials”. Or there might be a separation General submits that for keeping the of powers between some people called independence of judiciary it is necessary to “legislators” and others called “Judges” separate the independence of individuals who or “executives.” The object of such function as Judges and the independence of the schemes is to create checks and balances. institution of the judiciary as a whole. He adds 272. Mr. Ajmalul Hossain submits that the that judicial independence was sought to be Sixteenth Amendment has not in any way balanced against accountability of Judges and affected the basic structure of the constitution the judiciary through several provisions that since the structure relating to security of tenure, vested power in Parliament or the President which is considered as one of the conditions of either in terms of appointment or removal or the judicial independence has not been salaries which are equally curtailed in the affected. He, however, admitted that overall scheme pertaining to judicial independence of judiciary and the fundamental functioning. Such provisions are made to rights are basic structures of the constitution. ensure checks and balances in the operation of Since there is no dispute from the Bar that the judiciary and its constitutional function. independence of judiciary is a basic structure of 271. Randy E. Barnett in his book ‘The the constitution, I need not explore this point structure of Liberty’ has clearly explained the although all the learned counsel made elaborate essence of checks and balances under the submissions on the issue and referred to American system as under: various decisions. “For James Madison and the other 273. Essential to the rule of law in any framers of the United States Constitution, country is an independent judiciary-the Judges The Law Messenger 408 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) not under the thumb of other branches of the misbehaviour without interference by the government and therefore equipped with the Executive is an essential element of the armour of impartially. The experience gathered foundation of the independence of judiciary. from the developed countries including USA Sahabuddin, J. in Anwar Hossain case confirms that judicial independence is observed that “Independence of the Judiciary, a vulnerable to assault; it can be shattered if the basic structure of the Constitution, is also likely society which it serves does not take care to to be jeopardised or affected by some of the assure its preservation. It is the sole other provisions of the Constitution. Mode of responsibility of the apex Court of the country their appointment and removal, security of to protect the independence of judiciary and tenure, particularly, fixed age for retirement this responsibility is not abducted by any other and prohibition against employment in the branches of the State; rather it is the service of the Republic after retirement or constitution, the supreme law of the nation, removal are matters of great importance in which gave this great burden on the shoulder of connection with independence of Judges.” the Judiciary. 276. In this connection B.H. Chowdhury, J. 274. Under the U.S. constitution, Federal opined that Judges cannot be removed except Judges hold their offices essentially for life, in accordance with the provisions of article 96, with no compulsory retirement age, and their that is, the Supreme Judicial Council. Clause salaries may not be diminished by Congress. (5) says if after making the inquiry, the Council Through those protections, the Founders sought reports to the President that in its opinion the to advance the judiciary’s independence from Judge has ceased to be capable of properly Congress and the President, and thus to performing the functions of his office or has safeguard Judge’s ability to decide cases been guilty of misconduct, the President shall, impartially. In over 220 years since ratification by order remove the Judge from office. This is of the USA constitution, the Representatives a unique feature because the Judge is tried by have impeached only 13 Federal Judges; in his own peer, ‘thus there is secured a freedom only seven instances did impeachment result in from political control.” The above opinion is a Senate Conviction, and those Judges were clear that the provisions of Supreme Judicial removed not for wrongly interpreting law, but Council Mechanism for removal of Judges are for unquestionably illegal behaviour, such as, essential for safeguarding the independence of extortion, perjury, and waging war against judiciary. This Provision relates to self USA (My own words-Ruth Bader Ginsburg- regulation introduced by the Fifth Amendment p.218-219) and ratified, approved by this Court in Fifth 275. In Masder Hossain, 52 DLR(AD) 82, Amendment case and same has been retained this court held that security of tenure which by the Fifteenth Amendment is a unique includes security against interference by the provision for safeguarding the Judges in the Executive or other appointing authority is an administration of justice independently and essential feature of the independence of impartially without interference from any judiciary. Therefore, the responsibility reposed corner. upon the Supreme Judicial Council to protect 277. Dr. Kamal Hossain in this connection the Judges of higher Judiciary except on the submits that this Sixteenth Amendment was ground of misconduct, incapacity and proved intended to alter the basic structure of the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 409 constitution. He submits that the experience of impartially if they are given the power of the last 42 years in Bangladesh and other removal and will not be affected by the party’s countries where impeachment by Parliament views under article 70, the purported process of have been the mode of removal of Judges, impeachment introduced by Sixteenth concerns have been raised that the Amendment would clearly undermine the impeachment procedure is inappropriate if independence of judiciary and will definitely independence of the judiciary is to be alter the basic structure of the constitution. safeguarded. The politicization in the judiciary is now injected, and partisanship has rendered 280. In this connection Mr. Rokanuddin the process inappropriate. Mahmood submits that for impeachment and removal of the President there is detailed 278. In all cases where the Parliaments provision in articles 52 and 53 of the have exercised its power of impeachment, it constitution, but for removal of Judges under must be able to enjoy the confidence as an article 96(2) details have been left with the impartial and neutral body and not affected by Parliament. Power of removal of Judges under political partisanship. The long experience of article 96(2) is a constitutional mandate but the the last 42 years in Bangladesh and in procedure and investigation process will be particular the way the Parliament has evolved in Bangladesh leaves little doubt that such governed under an ordinary law as under article impartiality and neutrality can be ensured. As 96(3) in which using ‘may’ for passing such an illustration, in India where impeachment ordinary law implies that it is not mandatory. was attempted in Indian Parliament in He adds that even if such ordinary law is Ramaswami case in 1990, the whole process passed, it will be subject to frequent changes was undermined by various forms of even repeal in the interest of party-in-power politicized manipulation (Impeachment of allowing a constitutional provision to facilitate Judges: Tremors in Indian Judiciary by T. N. exercise of abusive power. He further adds that Shalla). even if a fair procedure is followed, obligation cannot be imposed on the members by an 279. By reason of article 70 of our ordinary law while exercising constitutional constitution and its impact on members of power under article 96(2). Moreover, he Parliament leads to the irresistible conclusion that this new mechanism cannot be expected to argues, exercise of power of removal of Judges function independently and neutrally if a Judge under article 96(2) is not subject to compliance attracts displeasure from the political party in of article 96(3) nor any law passed under it and power, he may be subjected to removal by the hence a resolution under article 96(2) can be Parliament. There can be little argument that passed without following any recommendation the function of judicial review by Judges emanated from it. That is to say, it can be said involve dealing with views in respect of which that any outcome of investigation can be political parties in the government and thrown away by voting of the Parliament. The opposition could have opposing views with submissions of Mr. Mahmood merit which the Judges may not reflect or agree in consideration and therefore, I hold the view their judgment. Without a political tradition in that if this removal mechanism remains, the which members of Parliament could clearly independence of judiciary will be jeopardized, demonstrate that they can act neutrally and curtailed and whittled down. The Law Messenger 410 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 281. If articles 7, 22, 94(4), 102 and 112 284. The constitution itself delineates and are read together it becomes clear that the demarcates the difference and contains in Supreme Court is independent, separate and is separate compartments different provisions, the guardian of the constitution and it is an some of which relating to Judges of the organ of the State. It is not merely a court and Superior Judiciary as constitutional if this position is taken to be true, the functionaries holding an office and the other to Parliamentary removal mechanism introduced the various services holding posts borne on by the Sixteenth Amendment would be an cadres governed by separate rules. There are embargo upon the Judges to uphold the various provisions in the constitution which supremacy of the constitution as well as it will establish and protect the independence of the create imbalance between the organs of the Judiciary as a basic feature in its sweep and as State and thereby jeopardize the independence an inherent element of the Rule of Law. With of judiciary. all that, I think the bedrock of independence 282. Separation of the Executive and the lies in the personalities who handle in the inter- Legislative branches from the Judiciary is relation with the changing concepts of rights equally important and essential, subject, of and liberties, and in a sense, the continuing life course, to the constitutional guarantees, the itself for the time being. other provisions and the entire scheme of the 285. Certainly Judges are not above the constitution. Rigging their respective law. But what is the law has to be reviewed and boundaries under any guise, like court laid down, which has a great bearing on the legislating or functioning as the Executive independence of the Superior Judiciary. That which would be coram non judice and void, apart, in the matter of discharge of judicial would be eroding the rule of law and paving duties and functions, independence is a sine the way for despotism. Courts have not only to qua non and an integral part of justice and its themselves strictly adhere to the boundaries and set an example but stand, when matters dispensation. That applies to the entire come under their purview, as sentinels and judiciary, top to bottom. The Supreme Court is forbid or strike down transgression by other a Court of Record and has as such vested in branches of their boundaries. Forces of them the power to punish for contempt of such freedom, liberty and the rule of law channeled courts. The Contempt of Courts Act takes care through the three branches of government of the Subordinate Courts as well. would be strong or weak in proportion to the Independence in this context is a subtle and effective control ever to be maintained against delicate matter but is of great importance and transgression of their mutual boundaries. substance. Independence is not an assertion of right but an inherent virtue necessarily 283. Independence of the Judiciary is a embedded in the process and rendition or basic feature of the justice system under the dispensation of Justice. constitution. A Judge is enjoined by his oath and the every nature of his office and duties to 286. As Coke would have it, in theory the function without fear or favour, affection or ill- King might be the fountain of justice but in will and uphold the constitution and the laws. practice, he has no right to interfere with or The Chief Justice or other Judges of the pollute justice and its dispensation. That is the Supreme Court are constitutional functionaries essence of independence to extract which, took and as such they hold an office and not a post. centuries of struggle and sacrifice. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 411 287. Independence rests not merely on law These views are in conformity with the views and its protection but equally and surely and taken by this court and this court cannot also more, on the Judge himself. Self restraint, overlook the established norms to be followed decorum, circumspection, balance, conscience, around the globe regarding the independence of dignity, objectivity, aloofness are among the judiciary. The Parliament has totally ignored preservatives of the independence of a Judge. the security of tenure—one of the basic He holds a high office and immense power of conditions of judicial independence as the laws as a Judge, not as an individual, and expounded in Valente and other courts of has therefore, a duty to uphold it in ways which higher echelon of this sub-continent. would help hold its place in public interest, not 290. Mr. M. Amirul Islam argues that while in the least swayed by anything from what drafting our constitution the Framers gave justice dictates. enough thoughts to make three pillars, the 288. In the case of TFH Van Rooyen v. the Executive, the Legislature and the Judiciary State (case No. 21 of 2001), Mr. Chaskalson, strong and to clothe them with the necessary CJ, the Constitutional Court of South Africa prestige and authority so as to ensure discusses the principles of judicial democracy, human dignity, rule of law and independence. The court finds that the core of freedom. He adds that the working of the judicial independence is the complete democratic government in the countries of the freedom of individual judicial officers to hear world three pillars identified are not mutually and decide the cases with no outside exclusive in their functions and theory; rather interference. The court gives emphasis on they are complementary to one another, though acting independently and impartially by they have certain clearly defined functions in individual judicial officers in dealing with the their respective fields, and in respect of cases at institutional level; there must be independence of the judiciary, he has referred structures to protect courts and judicial officers to the European Commission for Democracy against external interference. These safeguards Through Law (Venice Commission) 2008; the must include security of tenure and basic Commonwealth Latimer House Principles and degree of financial security. That in the instant United Nations formulated basic Principles of case, the impugned amendment would affect Independence of Judiciary in 1985. the security to tenure of judges-one of the basic 291. In the European Commission conditions of judicial independence as regarding independence of judiciary it is stated expounded in van Rooyen, though it sheds light “The independence of the judiciary has both an on the lower judiciary of that country. objective component, as an indispensable (http://www.constitutionalcourt.org.za/uhtbin/h quality of the judiciary as such and a subjective yperion-image/S-CCT98-08) component as the right of an individual to have 289. In Walter Valente v. The Queen, 1985 his/her rights and freedoms determined by an SCR 673, the Canadian Supreme Court held independent Judge. Without independent that, ‘Judicial independence is a ‘foundational Judges there can be no correct and lawful principle’ of the constitution…Security of implementation of rights and freedoms. tenure, financial security and administrative Consequently, the independence of the independence are the three ‘core judiciary is not an end in itself. It is not a characteristics’ of judicial independence.’ personal privilege of the Judges but justified by The Law Messenger 412 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) the need to enable Judges to fulfill their role of authorities of sentences imposed by the guardians of the rights and freedoms of the judiciary, in accordance with the law. people. It also provides for an impartial umpire 5. Everyone shall have the right to be in the shape of an independent judiciary to tried by ordinary courts or tribunals using resolve the inevitable disputes over the established legal procedures. Tribunals boundaries of constitutional power which may that do not use the duly established arise in the working of the government.’ procedures of the legal process shall not 292. The United Nations principles were be created to displace the jurisdiction adopted by the Seventh United Nations belonging to the ordinary courts or Congress on the Prevention of Crimes and the judicial tribunals. Treatment of Offenders held at Milan and 6. The principle of the independence of endorsed by the General Assembly Resolution the judiciary entitles and requires the Nos.40/32 and 40/146. The basic principles of judiciary to ensure that judicial the independence of judiciary are as follows:- proceedings are conducted fairly and that “1. The independence of the judiciary the rights of the parties are respected. shall be guaranteed by the State and 7. It is the duty of each member state to enshrined in the Constitution or the law provide adequate resources to enable the of the country. It is the duty of all judiciary to properly perform its governmental and other institutions to functions”. respect and observe the independence of the judiciary. 293. In the Commonwealth Latimer House Principles, it is stated “An independent, 2. The judiciary shall decide matters impartial, honest and competent judiciary is before them impartially, on the basis of integral to upholding the rule of law, facts and in accordance with the law, engendering public confidence and dispensing without any restrictions, improper justice. The function of the judiciary is to influences, inducements, pressures, interpret and apply national constitutions and threats or interference, direct or indirect, legislation, consistent with international human from any quarter or for any reason. rights conventions and international law, to the 3. The judiciary shall have jurisdiction extent permitted by the domestic law of each over all issues of a judicial nature and Commonwealth country. shall have exclusive authority to decide 294. To secure these aims: whether an issue submitted for its decision is within its competence as “(a) Judicial appointment should be defined by law. made on the basis of clearly defined criteria and by a publicly declared 4. There shall not be any inappropriate process. The process should ensure: or unwarranted interference with the judicial process, nor shall judicial equality of opportunity for all who are decisions by the courts be subject to eligible for judicial office; appointment revision. This principle is without on merit; and prejudice to judicial review or to that appropriate consideration is given mitigation or commutation by competent to the need for the progressive attainment The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 413 of gender equality and the removal of established and proven tradition, judicial other historic factors of discrimination; administration and disciplinary action should (b) Arrangements for appropriate be carried out by independent bodies, that security of tenure and protection of levels include substantial judicial representation. of remuneration must be in place; Disciplinary action against a Judge can only be taken when provided for by pre-existing law (c) Adequate resources should be and in compliance with predetermined rules of provided for the judicial system to procedure. operate effectively without any undue 297. Article 98 of the constitution of the constrains which may hamper the Republic of Singapore has depicted the independence sought; procedure of removal of a Judge. Clause (3) (d) Interaction, if any, between the provides that if the Prime Minister, or the Chief executive and the judiciary should not Justice after consulting the Prime Minister, compromise judicial independence. represents to the President that a person Judges should be subject to suspension holding office as a Judge of the Supreme Court or removal only for reasons of incapacity or a Judicial Commissioner, a Senior Judge or or misbehaviour that clearly renders them an International Judge of the Supreme Court unfit to discharge their duties...” ought to be removed on the ground of misbehaviour or of inability, from infirmity of 295. Article 1 of the Universal Charter of body or mind or any other cause, to properly the Judge formulated by International discharge the functions of his office, the Association of Judges has clearly mentioned President shall appoint a tribunal in accordance that Judges shall in all their work ensure the with clause (4) of article 98 and shall refer that rights of everyone to a fair trial. They shall representation to it; and may on the promote the right of individuals to a fair and recommendation of the tribunal remove the public hearing within a reasonable time by an person from office. independent and impartial tribunal established 298. Clause (4) of the article 98 provides by law, in the determination of their civil rights that the tribunal shall consist of not less than 5 and obligations or of any criminal charge persons who hold or have held office as a against them. The independence of the Judge is Judge of the Supreme Court, or, if it appears to indispensable to impartial justice under the law. the President expedient to make such an It is indivisible. All institutions and authorities, appointment, persons who hold or have held whether national or international, must respect, equivalent office in any part of the protect and defend that independence. Commonwealth, and the tribunal shall be 296. Article 11 of the said Charter provides presided over by the member first in the that the administration of the judiciary and following order, namely, the Chief Justice disciplinary action towards Judges must be according to their precedence among organized in such a way, that it does not themselves and other members according to the compromise the Judges genuine independence, order of their appointment to an office and that attention is only paid to considerations qualifying them for membership (the older both objective and relevant. Where this is not coming before the younger of 2 members with ensured in other ways that are rooted in appointments of the same date). The Law Messenger 414 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 299. At the 6th Conference of Chief Justices Commission consisting of the Chief Justice, a held in Beijing in August 1997, 20 Chief Judge appointed by the President, Attorney- Justices first adopted a joint Statement of General and two members of legal profession Principles of the Independence of the Judiciary nominated in accordance with the provisions of shortly referred to as Beijing Statement. This an Act of Parliament by the professional Statement was further refined during the 7th organization of organization representing the Conference of Chief Justices, held in Manila in interests of the legal profession in Namibia, August 1997. It has now been signed by 32 President of Namibia may remove a Judge Chief Justices throughout the Asia Pacific from his office. region. 302. As per article 129 of the constitution 300. Article 23 of the Beijing Statement of Bulgaria, Judges, prosecutors and states that it is recognized that, by reason of investigating Magistrates shall be appointed, differences in history and culture, the promoted, demoted, transferred and removed procedures adopted for the removal of Judges from office by the Supreme Judicial Council may differ in different societies. Removal by and the Chairman of the Supreme Court of parliamentary procedures has traditionally been Cassation, the Chairman of the Supreme adopted in some societies. In other societies, Administrative Court and the Prosecutor that procedure is unsuitable; it is not General shall be appointed and removed by the appropriate for dealing with some grounds for President of the Republic upon a proposal from removal; it is rarely, if ever, used; and its use the Supreme Judicial Council consisting of 25 other than for the most serious of reasons is apt members. to lead to misuse. Article 7 of the Beijing 303. International Principles on the Statement provides that Judges shall uphold the Independence and Accountability of Judges, integrity and independence of the judiciary by Lawyers and Prosecutors provides that security avoiding impropriety and the appearance of of tenure for Judges constitutes an essential impropriety in all their activities. Article 10 of guarantee to maintain judicial independence. the Beijing Statement states that the objectives Decisions on promotion of Judges must be and functions of the judiciary include the based on the same objective criteria as following: appointment and must be the outcome of a) To ensure that all persons are transparent and fair proceedings. able to live securely under the rule of 304. It is worth highlighting that the law; Council of Europe’s recommendation on the b) To promote, within the proper independence of the judiciary lays down clear limits of the judicial function, the guidelines on the grounds that can lead to the observance and the attainment of human removal of a Judge: rights; and “Appointed judges may not be c) To administer the law permanently removed from office impartially among person and between without valid reasons until mandatory persons and the State. retirement. Such reasons, which should 301. As per article 84 of the Constitution be defined in precise terms by the law, of the Republic of Namibia, on the could apply in countries where the judge recommendation of the Judicial Service is elected for a certain period, or may The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 415 relate to incapacity to perform judicial Chief Justices of High Courts and on the basis functions, commission of criminal of the recommendation of the Supreme Judicial offences or serious infringements of Council, President removes Judges of the High disciplinary rules.” Court and Supreme Court. In view of article 305. Furthermore, the Council has 144 of the said constitution, President may established clear requirements on removal remove a Judge on the report of Judicial proceedings, in particular the creation of a complaints Commission on the grounds of a special body subject to judicial control and the mental or physical disability that makes the enjoyment by judges of all procedural Judge incapable of performing judicial guarantees: functions; incompetence; gross misconduct; or bankruptcy. “Where measures on discipline need to be taken, states should consider setting 308. Removal of Judges from office should up, by law, a special competent body be an event rarely to take place if their entry in the judiciary is properly made after detailed which has as its task to apply any scrutiny as required for getting the selection disciplinary sanctions and measures, done with best quality of head, heart & courage where they are not dealt with by a court, with judicial discipline and conviction for rule and whose decisions shall be controlled of law and equal justice with the backbone that by a superior judicial organ, or which is a never to yield to any power or favour, however superior judicial organ itself. The law tempting or convenient it may seem and in should provide for appropriate strict adherence to the rule of law, being an procedures to ensure that judges in integral part of the Independence of Judiciary. question are given at least all the due For ensuring rule of law through a rigorous process requirements of the European judicial selection process and high standards of Convention on Human Rights, for ethical conduct can help avoid the need for the instance that the case should be heard use of removal mechanism. These are basics within a reasonable time and that they to be borne in mind but the Executive ignores should have a right to answer any the criteria in the selection process which is charges.” seen all the times. Besides, the risk that a 306. Judges must conduct themselves Judge may become mentally or physically according to ethical standards and will be held incapacitated while in office, there is always accountable if they fail to do so. International the danger of the rare Judge who engages in law clearly establishes that Judges can only be serious misconduct and refuses to resign removed for serious misconduct or incapacity. when it becomes clear that his or her position Disciplinary proceedings must be conducted by is untenable. On the other hand, there is the an independent and impartial body and in full threat to judicial independence when the respect for procedural guarantees. removal process is used to penalize or intimidate Judges. The challenge is to strike 307. Article 209 of the Pakistan’s the correct balance between these concerns. constitution deals with Supreme Judicial It is to be ensured that the removal process Council consisting of the Chief Justice of cannot be used to penalize or intimidate Pakistan; the two next most senior Judges of Judges. Removal from office is a very the Supreme Court; and the two most senior serious form of judicial accountability. The Law Messenger 416 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 309. Describing the duties of a Judge, in depend upon some objective standards that the case of Union of India v. Sankalchand [AIR protect the judiciary’s role. The judiciary must 1977 SC 2328], K. Iyer J, with the approval of be seen to be independent. Public confidence another great Judge i.e., Lord Denning M.R., hinges upon both these requirements being met. which is as follows: “Law does not stand still. Judicial independence serves not as an end in It moves continually. Once this is recognized, itself, but as a means to safeguard our then the task of the Judge is put on a higher constitutional order and to maintain public plane. He must consciously seek to mould the confidence in the administration of justice. It law so as to serve the needs of the time. He further observed that the three core must not be a mere mechanic, a mere working characteristics of judicial independence are mason, laying brick on brick without thought to security of tenure, financial security and the overall design. He must be an architect- administrative independence which have thinking of the structure as a whole building for emerged from the various decisions as society a system of law which is strong, considered by it and the Sixteenth Amendment durable and just. It is on his work that civilized has affected the security of tenure of the Judges society itself depends.” of the Supreme Court of Bangladesh, a core characteristic of judicial independence. I find 310. The degree or level of misconduct is no reason to discard the above findings, which to be considered sufficient to warrant the are core and basics to maintain the removal of a Judge. It has to be serious independence of the judiciary. misconduct. Removal Process and disciplinary proceedings should be confined to instances of 312. Mr. Attorney General submits that professional misconduct that are gross and judicial independence is guaranteed under inexcusable and that also bring the judiciary articles 94(4) and 116A, but if the Supreme into disrepute. This position is also reflected in Court declares that the constitution is supreme, the Principles and Guidelines on the Right to a there is no doubt about it. According to him, it Fair Trial and Legal Assistance in Africa, 2005 cannot be subordinate or subservient to Martial and the IBA Minimum Standards of Judicial Law Proclamation. He goes on submitting that Independence. Judge facing removal must have the concept of independence of judiciary is the right to be fully informed of the charges, to being abused by the High Court Division not in be represented at a hearing, to make a full the interest of public but for keeping the Judges defense and to be judged by an independent above accountability which is against rule of and impartial tribunal. [Latimer House law, public interest and independence of Guidelines] judiciary itself. 311. The High Court Division upon 313. Mr. Fida M. Kamal pointed out that analysis of different authorities and the article 96 of the constitution was amended at submissions of the learned Amici came to the first by the Fourth Amendment, whereby conclusion that there are two dimensions of the Parliament entrusted the power upon the judicial independence; one is individual and the President without determining any procedure. other is institutional. The individual dimension Thereafter, by the Tenth Amendment Order relates to the independence of a particular 1977, sub-articles (2) to (7) of article 96 were Judge. The institutional relates to the inserted. This Division in the Fifth Amendment independence of the court. Both the dimensions Case condoned the same. The Ninth Parliament The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 417 after deliberating over the matter, for more than ordinary statute law. Such procedural one year, with eminent jurists and different provisions will be subject to change at any time classes of people, enacted the Fifteenth by the Parliament by a simple majority, thereby Amendment incorporating new article 7B and seeking to effectively controlling the Judiciary Chapter I of Part VI, which includes article 96, and keeping Judges at the mercy of each and consciously keeping the provision of Supreme every Parliament, which will certainly Judicial Council intact and undisturbed. destabilize the system ensuring separation and Referring to articles 88(b) and 89(1) of the independence of judiciary and the rule of law. constitution, Mr. Kamal submits that the Lastly, Mr. Kamal submits that having regard remuneration of the Judges of the Supreme to article 70 of the constitution, Members of Court is payable from the Consolidated Fund Parliament, belonging to a particular political and the expenditures charged upon the Fund party, are constitutionally duty bound to act in can only be discussed in the Parliament but support of the party decision. The Sixteenth cannot be voted on. Such restriction upholds Amendment Act is not only ultra vires the the independence of the judiciary in the way constitution, but the same is intended to be that even the Parliament cannot vote on their used as a political weapon to control the remuneration. Therefore, the Sixteenth judiciary. Amendment is in conflict with the aforesaid 316. I fail to understand why the learned articles 88(b) and 89(I), as also article 94(4) of Attorney General is hostile towards particular the constitution. Again referring to article provision regarding the Supreme Judicial 147(2), he submits that the remuneration, Council mechanism introduced by the martial privileges and other terms and conditions of law proclamation. There is no doubt that article service of a person holding or acting in any 94(4) guarantees the independence of higher office to which that article applies, shall not be judiciary but such independence will remain in varied to the disadvantage of any such person the constitution if the political Executive is during his term of office. bent upon to remove a Judge because he 314. Refuting the submissions of the decides a case against the government as has learned Attorney General that the Parliament is been done in Sri Lanka. This court does not going back to the original wording of article 96 approve martial law and term the authority as by way of ‘restoring the said provision in its ‘usurper’ but for this reason a provision which original language,’ Mr. Kamal, pointing to the upholds the independence of judiciary cannot statement of objects & reasons (at page 591 of be equated with all ills. True, a usurper made the Paper Book) for making the Sixteenth the above constitutional amendment. This Amendment that article 142 does not provide to amendment was far better than that existed “restore” or any such word by way of after the Fourth Amendment. Besides, as amendment. Further, article 7B is a clear bar to observed above, a provision of constitution or destroy the basic structure of the constitution. the constitution as a whole is valuable if it is suited to the circumstances, desires, and 315. Mr. Kamal concluded by submitting aspirations of the people and it contains that the Sixteenth Amendment Act seeks to security against disorder. replace the constitutionally entrenched provision of the Supreme Judicial Council, (as 317. As observed above, a constitution is a newly inserted afresh by the 9th Parliament), by ‘living tree’ that grows and adapts to The Law Messenger 418 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) contemporary circumstances, trends, and reject approaches to interpreting the beliefs and whose current and continued constitution that consider the document’s scope authority rest on the justice or on factors like and application as fixed at the moment of the consent, commitment, or sovereignty of the framing. Rather, the court should regard the people – one, not the framers or the people – constitution as containing unwavering values then, then one will be far less likely to find that must be applied flexibly to ever changing such appeals conclusive, or even particularly circumstances. In this regard Stephen Breyer, a relevant. (Canadian Law in Edwords). ‘A sitting Judge of the U.S. Supreme Court in his constitution is not a finished product handed book ‘Making Our Democracy Work’ stated at down in a form fixed until such time as its page 75 that “the court must consider not just amending formula is invoked successfully or a how Eighteenth-century Americans used a revolution occurs. Rather, it is the blueprint for particular phrase but also how the values a work in progress requiring continual underlying that phrase apply today to revisiting and reworking ask our theories about circumstances perhaps then inconceivable”. the limits it establishes are refined and When the court interprets the constitution, it improved. It is, in short, a tree that is very should take account of the roles of other much alive.” (A common Law Theory of governmental institutions and the relationships Judicial Review – W.J.Waluchow). It can be among them. The constitution must work in changed any time if it augments the need of the both senses, that is, the court must interpret the people or for the independence of judiciary. law in ways that help that document works well 318. In this connection, I have pointed out for the citizens and public must accept the that the Muslim Family Laws Ordinance was court’s decisions as legitimate. also promulgated by martial law and it is still in 320. The constitution divides power force and also some other provisions are between different organs and prescribes limits operative till now. It should not be oblivious on the powers of Parliament, Executive and the that the constitution as drafted and as it exists Judiciary. It also provides for an impartial today, has placed the Judges of this court in the umpire in the shape of an independent judiciary driving seat of governance, maintaining rule of to resolve the inevitable disputes over the law and safeguarding the constitution. boundaries of constitutional power which may Maintaining public acceptance requires a arise in the working of the government. It is constitution that works well for the people admitted by both the parties that in Masder today. To quote Benjamine N. Cardozo - Hossain’s case, this court observed that ‘the ‘Constitutions are more likely to enunciate independence of judiciary, as affirmed and general principles, which must be worked out declared by Articles 94(4) and 116A, is one of and applied thereafter to particular conditions. the basic pillars of the constitution and cannot What concerns us now, however, is not the size be demolished, whittled down, curtailed or of the gaps. It is rather the principle that shall diminished in any manner whatsoever except determine how they are to be filled, whether under the existing provisions of the their size be great or small. The method of Constitution’. An independent, impartial, sociology in filling the gaps puts, its emphasis competent and ethical judiciary is essential to on the national welfare.’ the rule of law. It is necessary for the fair and 319. The court can help achieve this impartial resolution of disputes, just and objective in two ways. First, the court should predictable application of the law, and for The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 419 holding governments and private interests to every man feel that this own personal security, account. In order to ensure the judiciary as be and the security of his property, depends upon so fit well equipped and competent to perform that fairness. The judicial department comes these task, often in situations of considerable home in its effects to every man’s fire side;- it pressure requires a sound institutional structure passes on his property, his reputation, his life, to support the courage and integrity of his all. Is it not to the last degree important, individual Judges and appropriate measures that he should be rendered perfectly and should be taken towards the selection and completely independent, with nothing to appointment process of the Judges impartially. control him but God and his conscience. I 321. If the removal mechanism is left with acknowledge that in my judgment, the whole the Executive or the Legislature, it is difficult good which may grow out this convention, be it to accept the contention of the learned Attorney what it may, will never compensate for the evil General that the independence of judiciary will of changing the judicial tenure of office. I have be protected. There will be threat to the judicial always thought from my earliest youth till now, independence, and therefore, it is to be ensured that the greatest scourge an angry heaven ever that the removal process cannot be used as an inflicted upon ungrateful and sinning people, instrument to penalize or intimidate Judges. was an ignorant, a corrupt, or a dependent Removal from office is a very serious form of judiciary.” judicial accountability. Judicial accountability 323. Independence of judiciary greatly can be ensured by Judges providing reasons for depends upon the tenure of the office held by their decisions. the Judges. In order to ensure total freedom, 322. Mr. M. Amirul Islam quoted a from any overt or covert pressure or statement of Marshall, CJ. made in 1829 in a interference in the process of adjudicating Convention in Virginia that “the argument of causes brought before the Judges, they are to be the gentleman, he said, goes to prove not only ensured tenure. In S.P. Gupta V. President of that there is no such thing as judicial India, AIR 1982 SC 149, Gupta, J. observed independence, but that there ought to be no “The independence of the judiciary depends to such thing:- that it is unwise and improvident great extent on the security of tenure of the to make the tenure of the judge’s office to Judges. If the Judge’s tenure is uncertain or continue during good behavior. I have grown precarious, it will be difficult for him to old in the opinion that there is nothing more perform the duties of his office without fear or dear to Virginia, or ought to be more dear to favour”. her statesmen, and that the best interests of our 324. There is no doubt that by the Sixteenth country are secured by it. Advert, sir, to the Amendment the procedure which was enacted duties of a judge. He has to pass between the in the original constitution has been restored, government, and the man whom that but the Parliament failed to consider that the government is prosecuting, - between the most political party which introduced the system powerful individual in the community, and the realised later on that the system was not poorest and most unpopular, It is of the last suitable and changed the mechanism within importance, that in the performance of these three years of its introduction. Secondly, it fails duties, he should observe the utmost fairness. to consider that in restoring the original Need I press the necessity of this? Does not position whether the basic structure of the The Law Messenger 420 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) constitution has been changed. It is assumed the Judiciary, Fundamental Rights are basic that the Parliament in its wisdom has restored structures of the Constitution” (emphasis the original provision but there is nothing to supplied). Therefore, the constitutional show that the judicial review is not available principle of independence of judiciary against such legislative amendment if such precludes any kind of partisan exercise of amendment will impair the independence of power by the Parliament in relation to the judiciary or if the court finds that such obsolete judiciary, in particular, the power of the procedure introduced about 42 years ago will Parliament to remove the Judges of the not be suitable in the present context. On Supreme Court. repeated queries he failed to refer any authority 326. The substance of the argument of the in support of his contention. True, the learned Attorney General is that the Parliamentary removal mechanism was independence of judiciary will be secured and provided in the original constitution but the protected if the removal mechanism of the Parliament did not formulate any law to higher judiciary is kept with the Parliament. implement the mechanism. Therefore, Learned Attorney General has tried to establish apparently this provision has not been a new philosophy which is totally foreign to the implemented till this day and the people and international arena. The judiciary has been the judiciary are not aware of the benefit of the assigned the onerous task of safeguarding the provision. But the precedents of India, Sri fundamental rights of the citizens and of Lanka, Malaysia and United States of America upholding the rule of law. The courts are are unhappy ones. On the other hand, the entrusted with the duty to uphold the Supreme Judicial Council mechanism constitution and the laws. This Court often introduced by the Fifth Amendment is proved faces conflict with the State when it tries to as fruitful one and by using this mechanism, enforce its orders by exacting obedience from the independence of judiciary has been secured. recalcitrant and indifferent State agencies. There is no doubt about it. Therefore, the need for an independent and 325. The independence of the judiciary is impartial judiciary, manned by persons of the foundation stone of the constitution and as sterling quality and character, undoubting contemplated by article 22, it is one of the courage and determination and resolute fundamental principles of State policy. The impartiality and independence who would significance of an independent judiciary, free dispense justice without fear or favour, ill will from the interference of other two organs of the or affection, is the cardinal creed of our government as embodied in article 22 has been constitution and a solemn assurance of every emphasized in articles 94(4), 116A and 147 of Judge to the people of this great country. There the constitution. There has been a historic can be no two opinions at the bar that an struggle by the people of this country for independent and impartial judiciary is the most independence of judiciary, to uphold the essential characteristic of a free supremacy of the constitution and to protect the society”(Supreme Court Advocates-on-Record citizens from violation of their fundamental B. Union of India, (1993) 4 SCC 441). rights and from exercise of arbitrary power. In 327. This observation supports the views Anwar Hossain (supra) this court observed that taken in Masder Hossain and Anwar Hossain. “Democracy, Republican Government, Unitary In N. Kannadasan V. Ajoy Khose, (2009) 7 State, Separation of Powers, Independence of SCC 1, the Supreme Court of India observed The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 421 that “It is the Majesty of the institution that has of framing constitution by the Constituent to be maintained and preserved in the larger Assembly because the amending power has to interest of the rule of law by which we are be measured within the constitution. governed. It is the obligation of each organ of 329. Learned Attorney General has argued the State to support this important institution. that the superior Judges removal mechanism Judiciary holds a central stage in promoting being a policy decision of the government, it is and strengthening democracy, human rights not subjected to judicial review and that the and the rule of law. People’s faith is the very High Court Division has traveled beyond its foundation of any judiciary. Injustice anywhere jurisdiction in declaring the amendment ultra is a threat to justice everywhere, and therefore, people’s faith in the judiciary cannot be vires the constitution. He adds that the Judges afforded to be eroded.” being unelected took the role of Legislature in deciding the policy decision. Normally the 328. The people of this country pledged in Courts do not interfere with any policy decision the preamble that it shall be a fundamental aim of the government, but there are certain of the State to realise through a democratic situations in which the courts are left with no process a socialist society in which the rule of option other than to interfere in such policy law will be secured to all citizens. In this matters. connection Mr. Abdul Wadud Bhuiyan, has drawn our attention to some observations made 330. As observed above, our constitution is in Kannadasm (supra) and other cases. It was based on the basic principle of separation of observed that the duty of the judiciary to powers, there are some overlapping in the adjudicate upon the disputes that arise between running of the government particularly in a individuals, individuals and State and in the unitary form of government. Each organ of the scheme of things, the apex court has been State has the power to act in its own sphere of assigned the duty of being a final arbiter activity reposed by the constitution. The including on the question of interpretation of judiciary being a sensible organ of the State is the constitution and the laws. The Court has to apply laws, interpret laws and the always played a pivotal role in securing the constitution, and decides disputes between rule of law, equality and justice, and individuals, and between the individuals and maintaining the supremacy of the constitution the State, and finally deliver justice. The State which is an embodiment of the will of the is being run by its Executive branch and the people. One of the essential conditions of the Executive acts in its own sphere of activity. But independence of judiciary is security tenure of it is one of the biggest litigants. Therefore, in the Judges and if it is left with the Executive making policies and executing them comes there will create anarchy in the administration within the sphere of the Executive. But in of justice. As there is no rigid separation of executing the policies, there are situations powers in our constitution as in USA, but there where the court is required to interfere in is a broad demarcation and the reason behind exceptional cases, like the present one. If the this separation is that the concentration of policy decision is one of violation of powers in one organ may upset the balance fundamental rights or interference with the between the three organs of the State. It is to be independence of judiciary or in violation of any noted that the power of amendment of the provisions of the constitution, the courts will constitution cannot be equated with such power not hesitate to interfere and intervene in the The Law Messenger 422 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) matter. Similarly, if the policy decision violates 333. Constitutionalism presumes that the the Act of Parliament or the Rules made constitution can override the decision-making thereunder, the courts will not remain as silent process. Our constitutional democracy is spectator – it will certainly interfere with such pillared on the principle that the elected acts. representatives have the right to take decisions on the polity (Eugene V. Rostow: The 331. In this connection V.R. Krishna Lyer, Democratic Character of the Judicial Review, J. in Col. A.S. Sangwan V. Union of India, (1952) 66 Harv LR 193). Our constitution by 1980 Supp SCC 559 explained the position in declaring this country as a ‘democratic charming language as under: Republic’, in its reach engraves the supremacy “But one imperative of the Constitution of the constitution over the Legislature and implicit in Article 14 is that if it does guarantees that the human rights are protected change its policy, it must do so fairly and not only by self-restraint of the majority, but should not give the impression that it is also by constitutional control over the majority acting by any ulterior criteria or (article 7B). Right to judicial recourse has itself arbitrarily. This object is achieved if the been realised as the fundamental force for new policy assuming government wants peddling the structure of each and every law to frame a new policy, is made in the because the role to be played by each organ of same way in which the 1964 policy was the State can be adjudged on the doorsteps of made and not only made but made our constitution. known. After all, what is done in secret is 334. The mandate of our constitution stands often suspected of being capricious or at the pinnacle of the pyramid, under which mala fide. So, we make it clear that while everything done by the State to diverge from its the Central Government is beyond the reach can be tested by this court. As the forbiddance of the court from making or ultimate guardian of the rights of the people of changing its policy is regard to the this land this court has found itself at the helm Directorate of Military Farms or in the of affairs, in dealing with State machinery (In choice or promotion of Brigadiers, it has P.N. Bhagwati and C.J. Dias, The Judiciary in to act fairly as every administrative act India: A Hunger and Thirst for Justice, 5 NUJS must be done.” L REV 171(2012)). Judicial review, when 332. The Supreme Court is normally not undertaken in consonance with the constitution, inclined with the nitty–gritty of the government brings realisation to the hopes and aspirations policy or to substitute one by the other, but it of millions. Under the mandate of the will not be correct to contend that the court constitution this court cannot sit to harmonise shall lay its judicial hands off, when it comes to the functions of the different organs of the its notice that by a constitution device the State. Its role gets restricted in providing access Executive wants to intrude into the affairs of to those who bring to light the darkness the judiciary jeopardising its independence. springing out State actions. This darkness can Such intrusion is subject to judicial review. only be tested under the parasol of our There are instances - the policies made by the constitution. A policy decision taken by the government have been struck down by the government is not liable to interference, unless courts on grounds being unconstitutional, being the court is satisfied that the rule making against law, being arbitrary or malafide. authority has acted arbitrarily or in violation of The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 423 the fundamental right guaranteed under articles Executive. The people express hope that the 27, 29, 31 and 32. In Bromley London Borough Supreme Court would serve as a laboratory for Council V. greater London Council, (1983) 1 political, economical, democratical change in AC 768, the House of Lords quashed the GLC the country as a whole. Under such situation cheap fares policy as being based on a any change in its supervisory power is given to misreading of the statutory provisions. the Executive, the people’s hope and aspiration would be trampled. It is observed by Burrough, 335. Learned Attorney General fell in an J. in Richardson V. Mellish, (1824) 2 Bing 229 error in submitting that this amendment is the (252), public policy is an ‘unruly horse and policy decision of the government or in the dangerous to ride and, as observed by Cave, J. alternative, his submission that the High Court in Re Mirami, (1891) 1 QB 594 (595), it is a Division has usurped the functions of the branch of the law, however, which certainly Parliament. This submission is devoid of should not be extended, as Judges are more to substance. It is not a policy decision of the be trusted as interpreters of the law that as government, for a policy decision cannot take a expounders of what is called public policy.’ democratic government forty two years back system. More so, the political environment and 337. Learned Attorney General is totally the Parliament prevailed in 1972 cannot be confused in his submission, inasmuch as, on equated with the present context. The policy the one hand he has submitted that due to hurry decision relates to future economic matters, and haste, the Sixteenth Amendment provision field of trade and commerce, finance, has not been incorporated in the Fifteenth communications, telecommunications, health, Amendment, but on the other hand, he submits infrastructural projects, public accountability in that the Law Minister being a technocrat this all governmental enterprises etc. and amendment has not been brought in the government to government relationship. Fifteenth Amendment, and in the same breath, Assuming that it is so, it is patently a farce, he submits that it is the domain of the inasmuch as, the policy makers, if there be any, Parliament to make such amendment because took an unworkable devastating system for the people being the owners of the Republic implementation with a view to creating chaos, that includes all institutions including the confusion, indiscipline and interference in the judiciary, and the natural consequence is that higher judiciary, which is working as the most the judiciary is also answerable and acceptable organ of the State in comparison accountable to the people. He has totally with other two organs. ignored that if this amendment is implemented the independence of judiciary will be seriously 336. The Supreme Court is still respected hampered under the present political structure. internally and globally for its professionalism As observed above, previously to the insertion and unbiased rullings on human rights, of article 7B, there was no implied limitation environment, protection of women and on the constituent power of amendment of the children, military rule, fatwah, corruption and constitution under article 142 of the crimes against humanity. The press and human constitution, save and except the basic right activists are hailing its role vigorously. structures. Even assuming that article 7B is People from all walks of life repose faith upon absent in the constitution, the amending power it all the time and feel that it is their ultimate under article 142 has to keep the constitution in sentinel against any oppression by the repair as and when it becomes necessary and The Law Messenger 424 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) thereby protect and preserve the basic structure amendment will be invalid if it interferes with of the constitution. In such process if any or undermine the basic structure. Therefore, the amendment destroys the basic feature of the validity of amendment of a constitution is not constitution, the amendment will be to be decided on the touchstone of article 26, unconstitutional. The Supreme Court being the but only on the basis of violation of the basic guardian of the constitution any interpretation features of the Constitution (M. Nagaraj V. of the relevant provision of the constitution by Union of India, (2006) 8 SCC 212), this court prevails as a law, there is no doubt Kesabananda (supra), Bangladesh V. Idrisur about it. The interpretation placed on the Rahman, 15 BLC (AD) 49, Anowar Hossain constitution by this court thus becomes part of Chowdhury (supra). In Indira Nehru Gandhi v. the constitution. This interpretation gets inbuilt Raj Narain, AIR 1975 SC 2299, the Indian in the provisions interpreted. Supreme Court was specific enough to 338. This does not mean that the articles proclaim that amendment to any of the basic which are capable of amendment cannot be structures of the constitution is void. amended under article 142 and if this court 340. The duty of the judiciary is to declares any article ultra vires, such decision adjudicate upon the disputes that arise between will not amount to violation of the basic individuals, between individual and the State. structure of the constitution and it will amount In this scheme of things, this court has been to usurpation of judicial power. However, if the assigned the duty of being the final arbiter, change is made touching upon the basic including on the question of interpretation of structure of the constitution, this court has full the constitution and the laws. The maintenance power to declare it ultra vires. It has done of the supremacy of the constitution as the earlier and will not hesitate to do so presently embodiment of the will of the people, and in future. The constitution is not static but upholding the rule of law and safeguarding the dynamic. Law has to change - there is no doubt fundamental rights of the citizens is the about it. If it requires the amendment to the onerous task assigned to the judiciary under the constitution according to the needs of time and constitution. This court has always played the the society, the change must be made, but for pivotal role in securing the rule of law, equality the welfare of the people – not for destroying and justice and maintaining the supremacy of the substratum of the judiciary. It is an ongoing the constitution by its verdicts and process of judicial and constituent power, both interpretations given in disputes between the contributing to change of law with the final say individuals and the State. in the judiciary to pronounce on the validity of such change of law effected by the constituent 341. The Rule of Law is a basic feature of power by examining whether such amendment the constitution and the precondition of the rule violates the basic structure of the constitution. of law is an independent judiciary which will 339. Whenever a constitutional matter administer justice according to law. One of the comes before this court, the meaning of the essential conditions of the independence of provisions of the constitution comes for judiciary is security of tenure as noted earlier. interpretation. Though there is no implied In Kesavanarda Bharati (supra), it was limitation on the power of Parliament to amend observed that there is ample evidence in the the constitution but by insertion of article 7B, constitution itself to indicate that it creates a the power is circumscribed by limitations. An system of checks and balances by reason of The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 425 which powers are so distributed that none of 343. Modern democracies also differ the three organs it setup can become so widely in the organization of the administration predominant as to disable the others from of justice. In Continental democracies, a exercising and discharging powers and ministry of justice is in administrative control functions entrusted to them. Though the of the entire judicial machinery, and also the constitution does not lay down the principle of central agency for the drafting of legislation. In separation of powers in all its rigidity as in the Britain, these functions are divided between the case of the United States constitution, yet it Lord Chancellor's secretariat, the parliamentary envisages such a separation to a great degree. draftsman and ad hoc law revision committees. Our constitution also provided the similar In 1965 the process of law revision was given provision. institutional continuity through the creation of Law Commissions for England and Scotland. 342. Any particular form of constitutional In the United States, the Attorney -General's government cannot be regarded as the only true Department exercises some of the functions of embodiment of the rule of law. A written a ministry of justice. Together with numbers constitution as the supreme law of the land congressional committees and ad hoc appears as the legally clearest and most commissions. Each of these national satisfactory embodiment of democratic legal institutions has certain merits and deficiencies principles. It is found indispensable in a and may be in need of reform, but they are all constitution as a safeguard of State and compatible with democratic ideas. minority rights; this would also apply to a more 344. The other pillar of the rule of law, closely knit international community; but the cardinal to all democratic thought, is the unchecked legal supremacy of British principle of equal individual responsibility. In Parliament has not led to dictatorship, while Bentham's terminology, everybody counts for some written constitutions have quickly one. This does not exclude legal differences crumbled before political revolutions. The arising from the exercise of functions officials embodiment of judicially protected individual are, as such, nowhere in the same legal position rights in the American constitution has not as individuals. It does exclude, for example, the prevented restrictions on freedom of thought, retrospective punishment of actions. It does Speech and association more severe than in exclude the exemption of individuals or classes contemporary Britain which has no such from legal responsibility and, on the other constitutional guarantees. Again, the hand, punishment or persecution of individuals American constitution regulated the relations by virtue of their membership of a specific between Executive, Legislature and Judiciary race, religion or other group characteristics. differently from the British. It gives to a law (Ibid) court a supervisory function which cannot 345. The democratic conception of the rule help having deep political implications, and of law balances individual rights with it isolates Legislative and Executive from individual legal responsibility. This accounts each other, instead of the British method of for such rules as the responsibility for damage constituting government as an executive done by official acts to private citizens, or the committee of the majority in Parliament. principle of criminal liability based on (Legal Theory, W. Fried Mann, Univbersal individual wrongdoing by a person responsible Law Publishing Co. Pvt. Ltd.) for his action. The relation between individual The Law Messenger 426 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) right and individual duty is in constant 348. Mr. Rokanuddin Mahmood submits development between, and its forms vary from that when the Fifteenth Amendment system to system. (Ibid) incorporates the doctrine of ‘basic structure’ in the constitution as an express provision, and 346. In Minerva Mill Ltd. V. Union of prohibits any amendment to it, and leave India, (1980) 3 SCC 625, it was observed that articles 94(4) and 96 embodying independence every organ of the State, every authority under of judiciary and Supreme Judicial Council the constitution, derives its power from the intact, the logical consequence is that these two constitution and has to act within the limits of articles are integral part of the basic structures such power …. the concentration of powers in of the constitution as upheld by this court in the any one organ may, to quote the words of Eighth, Fifth and Thirteenth Amendment cases. Chandrachud’ in Indira Gandhi’s case, 1975 I fully agree with the submissions of Mr. Supp SCC 1, ‘by upsetting that fine balance Mahmood. The constitution as stood after the between three organs, destroy the fundamental Fifteenth Amendment and may, at the most, premises of a democratic government to which trace back to the date of Eight Amendment we are pledged’. judgment, when the basic structure theory 347. In the Fifth Amendment case, this became part of the constitutional law and Court observed that the Supreme Judicial jurisprudence by judicial pronouncement. Council mechanism is a provision that Article 7B specifies certain articles which are reinforces the independence of judiciary. The unamendable. In addition, article 7B also bars supreme Judicial Council is not only a part of amending of the articles that relate to the basic the independence of judiciary, but it ensures structures of the constitution. The articles the independence of judiciary. In the which have been specifically barred from constitution there was no definition of basic amendment are not necessarily articles that structure nor thus article 7B identify the articles relate to the basic structures of the constitution. that contain provisions relating to the basic 349. This court has already identified the structures of the constitution. The Judges independence of judiciary as envisaged in removal mechanism by the Supreme Judicial article 94(4) as the basic structure of the Council has already been interpreted by this constitution and has also identified article 96 Court. Therefore, when one reads article 7B embodying the Supreme Judicial Council as and comes to the expression “the provisions of reinforcing and safeguarding such Articles relating to the basic structures of the independence of judiciary by its Constitution ….shall not be amendable …”, it pronouncements. Therefore, there is no scope becomes inescapable that article 7B prohibits in our constitution to render one organ of the amendment of article 96 embodying the State subservient to the other, or one organ to provisions of the Supreme Judicial Council. control the other. The only exception is that in More so, by the Fifteenth Amendment this order to have a democratically elected Supreme Judicial Council mechanism has government to govern the country, which been retained and by this amendment, article would remain accountable to the people 7B embodying the doctrine of ‘basic through their elected representatives, the structures’ of the constitution as an express Executive organ of the State is appointed from provision, also retained article 96 embodying amongst the members of the Parliament, who the Supreme Judicial Council. command the majority. This accountability is The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 427 in compliance with the letter and spirit of threat of removal of a Judge will compromise article 7 of the constitution. the position of the Supreme Court to act as the guardian of the constitution or acting 350. Article 7 ensures the supremacy of the independently. constitution. It may be reiterated that the Supreme Court is not only an independent 352. There cannot be any doubt about organ of the State, but it also acts as the adverse impact if Parliament removal guardian of the constitution. It is the Supreme mechanism is introduced. More so, the day-to- Court that ensures that any law that which is day overlooking the administration of justice inconsistent with the constitution will be by the Chief Justice will also be hampered in declared void in exercise of the judicial review the absence of Supreme Judicial Council by reference to articles 7(2) and 26. mechanism and in that case nobody can give guarantee that the incident like the one of 351. Mr. Rokanuddin Mahmood submits justice Karnan would not happen in our Court that the Parliamentary removal mechanism of also. If the Judges are not accountable in any the Judges of the higher judiciary will be manner to the head of the institution, the compromised with the independence of Judges administration of justice is bound to collapse. and judiciary, inasmuch as, (a) there is a risk Therefore, there is no doubt to hold the view that the power of removal of a judge may be that this amendment is ultra vires the exercised on a political motivation. (b) any constitution and the High Court Division has decision rendered on an important or sensitive rightly interfered with the amendment. I find issue, touching upon public interest and the no reason to decide otherwise. affairs of the State by a Judge may irk the 353. Article 116 was also amended by the Parliament, causing it to move against such a Constitution Fourth Amendment and by this Judge for removing him from the office. (c) the amendment the word ‘President’ was prospect of being removed by the Parliament substituted for the words ‘Supreme Court’. By may weigh heavy in the minds of Judges in this amendment the control including posting, exercising their judicial functions promotion, leave and discipline of persons independently. (d) power of removal of a Judge employed in the judicial service are to be by the Parliament cuts both ways: first, the risk exercised by the President. Though there was a of Parliament exercising the power being provision for consultation in exercising this politically motivated, and the other the Judge power practically this consultation is discharging his duties under a constant pressure meaningless, if the Executive does not of worrying about the risk of incurring the cooperate with the Supreme Court. More so, wrath of the Parliament of his decision. (e) this amendment is in direct conflict with article there is also the possibility of instances where a 109, which provides that the High Court particular Judge’s removal on grounds of Division shall have superintendence and incapacity and misconduct is truly warranted control over all courts and tribunals by the existing facts and circumstances, but the subordinate to it. If the High Court Division Parliament may not be willing to remove him has superintendence and control over the lower on political consideration, and may shield the judiciary, how it shall control the officers particular Judge, who is truly liable to be performing judicial works if the Executive removed. (the case of Ramashswami of the controls the posting, promotion and discipline, Supreme Court of India). (f) the power and the disciplinary action is not clear to me. The Law Messenger 428 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) 354. Learned Attorney General submits Fifth, Eighth and Thirteen Amendment cases. that this substitution of the word ‘President’ Keeping the control and disciplinary has been made in the context of the country mechanism of the officers of the lower then prevailing under the presidential form of judiciary with the Executive, judiciary cannot government which was introduced by the be independent and this provision is not only Fourth Amendment. This explanation is ex- inconsistent with article 109, it is also facie not tenable, inasmuch as, there is no inconsistent with article 116A, which has also nexus between the form of government-it been substituted by the constitution Fourth relates to the independence of judiciary. The Amendment. Under this provision, it is said subordinate judiciary has been brought most that all persons employed in the judicial service closely into contact with the people. It is thus and all Magistrates shall be independent in no less important, perhaps indeed even more exercise of their judicial functions. There important that its independence should be cannot be any independence in the judiciary if placed beyond question. To establish the rule the disciplinary mechanism including the of law the subordinate judiciary must also be power of appointment, posting and promotion independent and impartial. Shocking situation of the officers of the lower and higher judiciary now the judiciary is facing that till now nothing are kept in the hands of the Executive, has been done to give effect to article 22 inasmuch as, there is no mechanism under the despite the direction given in Masder Hossain. scheme of the constitution as to how the 355. Learned Attorney General fails to Executive shall control the power of posting, comprehend that even before the Fourth promotion and discipline of persons employed Amendment, the superintendence and control in the judicial service and the higher judiciary. of all courts and tribunals were under the High Court Division and this provision ensures the 357. Mr. A.J. Mohammad Ali argues that independence of judiciary, but by this if original articles 115(1) and 116 are read substitution of the word ‘President’ for the together it will imply that self regulation is a words ‘Supreme Court’ in article 116, the basic feature of the constitution as it was independence of the lower judiciary has been framed in 1972 and that by this amendment totally impaired, curtailed and whittled down. the independence of judiciary has been This amendment, therefore, violates the basic interfered with. He further argues that by the structure of the constitution and therefore this Fourth Amendment articles 95, 96, 98, 102, substitution of the word ‘President’ is ultra 109, 115 and 116 were amended. These vires the constitution. amendments, curtailed the independence of 356. The scheme of the constitution itself judiciary. The independence of judiciary being shows that the lower judiciary is totally admittedly a basic structure of the independent and that its control shall be with constitution, this amendment is also ultra vires the High Court Division. The change of the the constitution. In the Fifth Amendment case, system of the government will not make any this court observed that by ‘partial restoration difference. There were twelve amendments in of the independence of judiciary (Article 95 the constitution after the Fourth Amendment. and 116) as made by the Second Proclamation None of the governments took any step in this (Seventh Amendment) Order, 1976’,the regard despite the observations by this court in independence of judiciary was curtailed. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 429 358. Mr. Mohammad Ali argues that part which the judicial service cannot be placed on VI of the constitution relating to the judiciary is par on any account and that it cannot be a composite part and a piecemeal restoration of amalgamated, abolished, replaced, mixed up some original articles while retaining other and tied together with the civil executive and amended articles would lead to chaos in the administrative services. In the guideline Nos.5 operation of a complex organ of the State, that and 7 this court made the following directions: is, the judiciary. We find substance in the “(5) It is directed that under Article submission of Mr. Mohammad Ali. This court 133 law or rules or executive orders in Fifth Amendment case clearly observed that having the force of Rules relating to these amendments of articles 95, 96, 98, 102, posting promotion, grant of leave, 109, 115 and 116 curtailed the independence of discipline (except suspension and judiciary. removal), pay, allowances, pension (as a 359. Learned Attorney General, however, matter of right not favour) and other argues that the amendment to article 116 is terms and conditions of service, totally different and it relates to the lower consistent with Articles 116 and 116A as judiciary and the Sixteenth Amendment relates interpreted by us, be enacted or framed to the higher judiciary, and therefore, article or made separately for the judicial 116 is not an issue in this case. The submission service and magistrates exercising of the learned Attorney General has no force at judicial functions keeping in view the all. The question is whether under the present constitutional status of the said service.” provisions of the constitution, the “(7) It is declared that in exercising independence of judiciary is curtailed or not. control and discipline of persons Judiciary includes both the lower judiciary and employed in the judicial service and the higher judiciary. The scheme of the magistrates exercising judicial functions constitution says that the judiciary is under Article 116 the views and opinion completely independent, but if the lower of the supreme court shall have primacy judiciary is controlled by the Executive, how over those of the Executive.” there will be independence of judiciary and how the High Court Division shall control the 361. This court fails to comprehend the lower judiciary. The net result is by the reason behind the promulgation of the constitution contrivance, the Executive is now impugned amendment abruptly without trying to take control of the entire judiciary removing the inconsistency in other provisions which device is unconstitutional and ultra vires. of the constitution. Keeping articles 116 and 116A intact and substituting article 96, the 360. In Masder Hossain, this court after judiciary is totally crippled now. This has exploration of various provisions of the caused embarrassment on the part of the Chief constitution and authorities of different regions Justice in the administration of justice in higher summed up its opinion that the judicial service and lower judiciary to the knowledge of the is a service of the Republic within the meaning Executive. There is practically no disciplinary of article 152(1) of the constitution, but it is Rules in respect of the entire judiciary which is functionally and structurally a distinct and suicidal to the country as a whole. When this separate service from the civil executive and fact is drawn to the notice of the learned administrative services of the Republic with Attorney General, he has replied that the The Law Messenger 430 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) appointing authority can take necessary action bona fides or mala fides on the part of the in case of necessity. In his written argument Legislature. It is not permissible for a court to learned Attorney General stated that the impute malice to the Legislature in making Learned Judge who wrote the judgment of the laws which is its plenary power. (Shahriar High Court Division made some wild Rashid Khan V. Bangladesh, 1998 allegations against the majority members of BLD(AD)155). The entire question is one of Parliament of having ‘criminal records’ and if competence of the Legislature to enact a law. A the allegation is not true “the President of law will be colourable legislation if it is one Bangladesh should do something about the which in substance is beyond the competence concerned learned Judge of the Supreme Court of the Legislature. as his appointing authority.” The Court was not prepared to hear such comment from the Chief 364. A mala fide exercise of discretionary Law Officer of the country. This argument power is bad as it amounts to abuse of reflects the intention of the Executive for discretion. (Punjab V. Gurdial Singh, AIR 1980 hearing brought the change in disciplinary SC 319). It is often said that malafide or bad mechanism of the Judges of the higher faith vitiates everything and a mala fide act is a judiciary. nullity. (Abdul Rob V. Abdul Hamid, 17 DLR(SC)515). What is mala fides? “Mala fides 362. Thus the Sixteenth Amendment is a or bad faith” means dishonest intention or colourable legislation. Where the power of corrupt motive in the exercise of powers or a the Parliament is limited by the constitution or deliberately malicious or fraudulent purpose, the Parliament is prohibited from passing on the part of the decision maker. Mala fides certain laws, the Parliament sometimes makes a includes those cases where the motive force law, which in form appears to be within the behind an action is personal animosity, spite, limits prescribed by the constitution, but which vengeance, personal gratification or benefit to is in substance transgresses the constitutional the concerned authority or its friends or limitation and achieves an object which is relatives. (Halsbury’s Laws of India, Vol-1, prohibited by the constitution. It is then called a P.319 and CS Rowjee V. A.P., AIR 1964 SC colourable legislation and is void on the 962). principle that what cannot be done directly cannot also be done indirectly. The underlying 365. An independent ground of attack, idea is that although a Legislature in making a malafides (Malice in fact) should be law purports to act within the limit of its distinguished from mala fides (malice in law). powers, the law is void if in substance it has According to Megaw LJ, it always involves a transgressed the limit resorting to pretence and grave charge and it must not be treated as a disguise. The essence of the matter is that a synonym for an honest mistake. (District Legislature cannot overstep the field of its Council V. Kelly, (1978) 1 All ER 152). There competence by adopting an indirect means. is malice in law where “it is an act done Adoption of such an indirect means to wrongfully and willfully without reasonable or probable cause and not necessarily an act done overcome the constitutional limitation is often from ill feeling and spite. It is a deliberate act characterised as a fraud on the constitution. in disregard of the rights of others’. (A.P. V. 363. The doctrine of colourable legislation Goverdhanlal Pitti, (2003) 4 SCC 739). does not, however, involve any question of Colourable exercise of power is equated with The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 431 malice in law (Wadhwa V. Bihar, AIR 1979 that the Parliament by law may regulate the SC 659) and in such a case, it is not necessary procedure in relation to clause (2) and for to establish that the respondent was actuated by investigation and proof of the misbehaviour or a bad motive. (Venkataraman V. India, AIR incapacity of a Judge, in the absence of 1979 SC 49). promulgation of law, the writ petition is 366. In Dr. Nurul Islam V. Bangladesh (33 premature one. This submission is devoid of DLR(AD)201, before the emergence of substance, firstly, the writ petitioners have Bangladesh, the East Pakistan Government challenged the vires of an Act of Parliament, wanted to make the post of Director of the that is to say, an amendment to the constitution which has been effective by Gazette Institute of Post Graduate, Medicine, a non- Notification dated 22nd September, 2014 and practicing post and offered the post to Dr. secondly, this amendment has become a part of Nurul Islam, but the latter declined the offer. In the constitution and the same cannot be judged 1972, Dr. Nurul Islam was appointed as by the touchstone of an ordinary legislation. Director and Professor of the Institute. The right to continue as Professor of Medicine 368. Learned Attorney General argued that carried with it the right to private practice. In even if this amendment is declared ultra vires 1978, the government issued a notification the constitution, if the Parliament does not relieving Dr. Nurul Islam of his duties and restore the earlier provision of the Judges designation of Professor of Medicine and the removal mechanism by the Supreme Judicial said notification also made the post of Director Council, a deadlock would be created in the a non-practicing post. Dr. Nurul Islam removal process of the higher judiciary. challenged the notification and the notification Secondly, he submits that the earlier provision was declared without lawful authority by the of Supreme Judicial Council mechanism for High Court Division. The government removal of Judges was non-functional in the thereafter in 1980, compulsorily retired him absence of the prescribed Code of Conduct. under the Public Servants (Retirement) Act, 369. This Judges removal mechanism was 1974. Dr. Nurul Islam challenged the order of made by substituting the old provision. In retirement. Though from the facts malice in section 2 of the Act it is said, ‘In the fact can be suspected, because of the difficulty Constitution, in article 96, for clauses (2), (3), of proving it, Dr. Nurul Islam urged malice in (4), (5), (6), (7) and (8), the following clauses law stating that the order was passed to (2) (3), and (4) shall be substituted.’ As per law circumvent the earlier decision of the High if a substituted provision is declared void or Court Division in his favour. This court found repealed, the former provision shall be the allegation to be correct and held the order effective immediately. This court in Ful Chand of compulsory retirement vitiated by malice in Das V. Mohammad Hamad, 34 DLR (AD) 361 law. held that when a provision of law repealed by a 367. Next question is whether the writ statutory provision which is declared ultra vires petition is premature one or not. It is the the constitution, the former provision is argument of both the learned Attorney General automatically revived on such declaration. If and the learned Additional Attorney General the amended statute is wholly void, the statute that in view of the provisions in section 2(3) of sought to be amended is not affected but the Constitution (Sixteenth Amendment) Act remains in force. Where the law was amended The Law Messenger 432 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) but subsequently the amendment was repealed, 372. In Chicago, Indianapolis V. Hackett, the amendment has to be completely ignored (1912) 227 U.S. 559, it was held “That act was and the provisions of the law as they stood therefore as inoperative as if it had never been prior to amendment are to be taken into passed, for an unconstitutional act is not a law, consideration. (Mir Laik Ali V. Standard and can neither confer a right or immunity nor Vacuum Oil Co., 16 DLR (SC) 287. In Ram operate to supersede any existing valid law”. In Dayal V. Shankar Lal, AIR 1951, Hyd another case it was held that “an 140(FB), it was held that when an Act passed unconstitutional statute ‘is of no more force or repeals another in whole or in part and validity than a piece of blank paper,” while the substitutes some provision in lieu of the Minnesota court (Minn. Sugar Co. V. Iverson, provision repealed, the repealed enactment (1903) 91 Minn. 30) has expressed the same remains in force until the substituted provision idea by stating that it “is simply a statute in comes into operation. form, is not a law, and under every circumstance or condition lacks the force of 370. On the above question, the decisions law”. of the American jurisdiction are clear. The Supreme Court of Indiana has said that if a 373. So, the American courts are in statute is unconstitutional it is no law, and agreement as to the effect of cannot be used to give appellee a right of action unconstitutionality. Thus there has been no against appellant. (Bed ford Quarries V. particular conflict amongst the court as to the Bough, (1907) 168 Ind. 671, 80 N.E.539). In effect of unconstitutionality. The passing upon an amendment to a statue which overwhelming view is that the statute is was held to be unconstitutional, in Carr V. absolutely void and never had any legal State, (1819) 127 Ind. 204, 26 N.E. 778 it was existence and that consequently any acts done observed: in reliance on such an unconstitutional statute are not protected in any way. In Norton V. ‘An act which violates the constitution Shelby County, (1886) 118 U.S. 425, 6 S.Ct. has no power and can, of course, neither 1121, it was held “An unconstitutional act is build up or tear down. It can neither not a law; it confers no rights; it imposes no create new rights nor destroy existing duties; it affords no protection; it creates no ones. It is an empty legislative office; it is, in legal contemplation, as declaration without force or validity.’ inoperative as though it had never been 371. In view of the above, it is held in passed”. Indiana that a repealing Act which is 374. An unconstitutional enactment is unconstitutional can have no effect upon sometimes void, and sometimes not; and this the statute sought to be repealed and the will depend upon whether, according to the previous statute remains the law as though theory of the government, any tribunal or court the legislature had not made any attempt is empowered to judge of violations of the to change it. (Igoe V. State (1860) 14 Ind constitution, and to keep the legislature within 289). That an unconstitutional statute is the limits of a delegated authority by annulling to be considered as though it had never whatever acts exceed it. According to the been enacted by the legislature is also the theory of British constitutional law the view of a number of other courts. Parliament possesses and wields supreme The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 433 power, and if therefore its enactments conflict making final ‘say’ in the interest of justice the constitution, they are nevertheless valid, without any restriction. The constituent power and must operate as modifications or of amendment of the constitution under article amendments of it. But in America, the 142 has been given upon the Parliament but the legislature acts under a delegated authority, said power is circumscribed by limitations. It is limited by the constitution itself, and the for this court to exercise its power to do judiciary is empowered to declare what the law complete justice or to prevent injustice arising is, an unconstitutional enactment must fall from the exigencies of the cause or matter when it is subjected to the ordeal of the court. before it. (Khandker Zillur Bari V. State, 17 Such an enactment is in strictness no law, BLT (AD) 28, Shahana Hossain V. because it establishes no rule; it is merely a Asaduzzaman, 47 DLR (AD) 155, B.C. futile attempt to establish a law. (Luther v. Chaturvedi V. India (1995) 6 SCC 749, Ashok Borden, 7 How.1; Mississipi v. Johnson, 4 Kumar Gupta V. State of U.P. (1997) 5 SCC Wall, 475). Similar principle is applicable to 201.) our country as well. 377. This conferment of power is under 375. Another reason sometimes advanced special circumstances and for special reasons in the cases is that the Executive and having the concept of justice being Legislative departments of the government are predominant factor behind the inclusion of circumscribed by constitutional limitations and such a provision in the constitution (Karnataka that one of the reasons for such limitations is to V. Andhra Pradesh (2000) 9 SCC 572, Nilabati protect the rights of the individual against such Behera V. Orissa AIR 1993 S.C. 1960.) This excesses of authority as are involved in these power can be exercised in a matter or cause cases. It has been seen throughout the history which is pending in appeal when the court that the power held by the executive branch has finds that no remedy is available to a party to been exercised tyrannically and this notion of the litigation though gross injustice has been tyrannical abuse of power is not wholly done to him for no fault of his own. (Raziul eradicated from the mind of the people even in Hasan V. Badiuzzaman, 1996 BLD (AD) 253; this modern century. We find no reason to Abdul Malek V. Abdus Sobhan, 61 DLR (AD) depart from the views expressed by different 124.) This power is not circumscribed by any courts of United States. In India also in a case it limiting words. This is an extra ordinary power was observed, a statute void for conferred by the constitution and no attempt unconstitutionality cannot be vitalized by a has been made to define or describe ‘complete subsequent amendment of the constitution justice’. Any such attempt would defeat the removing the constitutional objection and must very purpose of the conferment of such power. be reenacted (Saghir Ahmed V. UP, AIR 1954 (Bangladesh V. Shamirunnessa, 2005 BLD SC 728). (AD) 225.) 376. Besides the above, in the beginning of 378. Sometimes it may be justice according the judgment I have quoted an observation of to law; sometimes it may be justice according Justice Vivian Bose which reflects the onerous to fairness, equity and good conscience; responsibility reposed upon this court by the sometimes it may be pure commonsense; Founding Fathers and ultimately by the sometimes it may be the inference of an constitution. This is a constitutional power of ordinary reasonable man and so on. (National The Law Messenger 434 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) Board of Revenue V. Nasrin Banu, 48 DLR 380. The effecting of judgment, one must (AD) 171, Naziruddin V. Hamida Banu, 45 relate the particular facts to the abstract concept DLR (AD) 38.) It is well settled that the in question, usually expressed as a broad term. cardinal principle of interpretation of statute is A judgment is the action of mentally that courts must be held to possess power to apprehending the relation between two objects execute their own order. It is also well settled of thought. (Oxford English Dictionary, Second that a tribunal which has been conferred with Edn.) Whately said, ‘Judgment is the power to adjudicate a dispute and pass comparing together in the mind two of the necessary order has also the power to notions or ideas which are the objects of implement its order (State of Karnataka V. apprehension. (Elements of Logic, Second Vishwabharathi House Building co-op society, Edn.). Judgment – forming has also been (2003) 2 SCC 412.) described as ‘a matter of weighing the cumulative effects of one group of severally 379. This is why the Supreme Court of inconclusive items against the cumulative Pakistan in Asma Jilai (supra) in exercise of effects of another group of severally this power by accepting the principle inconclusive items.’ (AJTD Wisdom, propounded by the Supreme Constitutional philosophy and psycho analysis (1953) Basil Court of Cyprus enlarged the principle by Blackwell P.157). The various concepts may terming it as ‘doctrine of necessity’, condoned conflict, when weighing and balancing of the some martial law promulgated acts, deeds, concepts becomes necessary. (R Cross, things etc. and recognised as laws of the Precedent in English Law, Third Edn.) A court country. In that case also Pakistan Supreme may need to form a judgment as to whether a Court considered the cases of American statutory right or duty should not be enforced jurisdiction. This court accepted the said because its performance might have deleterious doctrine in the Constitution Fifth Amendment consequences such as the commission or case and approved the Judges removal rewarding crime. (R. Registrar General, ex P mechanism by the Supreme Judicial Council Smith (1991) 2 All ER 88). provided in the constitution observing that this provision is more transparent procedure than 381. It is not correct that there is no that of the earlier ones and also for prescribed Code of Conduct to be observed by safeguarding independence of judiciary. By the Judges. The Judges are guided by the Code judicial pronouncement this court approved the of Conduct and that is why Mr. Syed Shahidur substituted provision of article 96 and thus, the Rahman, an Additional Judge of the High Parliament has no power to amend the same. In Court Division has been removed as per N.S. Bindra’s Interpretation of Statutes, Tenth recommendation of the Supreme Judicial Edition, at page 1058 it is stated ‘A change in Council (Md. Idrisur Rahman V. Government law can affect the decision of a court only to of Bangladesh, 13 ADC 220). This Court has the extent that the decision becomes contrary to formulated forty instructions, to be followed by law, but where the change in law does not the Judges and held that the learned Judge has touch the question already decided by the violated the Code of Conduct and thereby ‘he competent court, the judicial decision is not has committed gross misconduct.’ I have affected by such amendment.’ This court observed earlier that there should be reaffirms the views taken by this court in the accountability of the Judges. In dealing with Constitution Fifth Amendment case. the issue, I have observed that the The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 435 accountability involves procedures for dealing partisan interests, public clamor, or fear with complaints about the conduct of the of criticism. Judges; that individual Judges are subject to a (5) A Judge should be patient, strong system of internal accountability in dignified, respectful, and courteous to respect of legal errors and personal conduct; litigants, lawyers, and others with whom that Judges individually are accountable to the the Judge deals in an official capacity, public in the sense that in general their and should require similar conduct of decisions are in public and are discussed, often those officers to the Judge’s control, critically, in the media and by interest group including lawyers to the extent consistent that Judges can be removed for serious with their role in adversarial system. misconduct, disciplinary or criminal offence or incapacity that renders them unable to (6) A Judge should dispose of discharge their functions. promptly the business of the court including avoiding inordinate delay in 382. With a view to avoiding any delivering judgments/orders. In no case a misgiving and confusion, we reformulate the judgment shall be signed later than six Code of Conduct in exercise of powers under months of the date of delivery of article 96 as under: judgment. Code of Conduct (7) A Judge should avoid public (1) A Judge should participate in comment on the merit of a pending or establishing, maintaining, and enforcing impending Court case. high standards of conduct, and should (8) A Judge shall disqualify personally observe those standards so himself/herself in a proceeding in which that the integrity and independence of the the Judge’s impartiality might reasonably judiciary is preserved. be questioned. (2) A Judge should respect and comply (9) A Judge shall disqualify with the constitution and law, and should himself/herself to hear a matter/cause act at all times in a manner that promotes where he served as lawyer in the matter public confidence in the judiciary. in controversy, or with whom the Judge previously practiced during such (3) A Judge should not allow family, association as a lawyer concerning the social, or other relationships to influence matter, or the Judge or such lawyer has judicial conduct or judgment. A Judge been a material witness. should not lend the prestige of the (10) A Judge shall not hear any matter judicial office to advance the private if he/her knows or if he/she is aware or if interests of others; nor convey or permit it is brought into his/her notice that, others to convey the impression that they individually or as a fiduciary, the Judge are in a special position to influence the or the Judge’s spouse or children have a Judge. financial interest in the subject matter in (4) A Judge should be faithful to and controversy or is a party to the maintain professional competence in the proceeding, or any other interest that law, and should not be swayed by could be affected substantially. The Law Messenger 436 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) (11) A Judge requires a degree of relative, if a member of the Bar, to detachment and objectivity in judicial appear before him or even be associated dispensation and he is duty bound by the in any manner with a cause to be dealt oath of office. with by him. (12) A Judge should practise a degree (20) No member of his family, who is a of aloofness consistent with the dignity member of the Bar, shall be permitted to of his office. use the residence in which the Judge actually resides or other facilities for (13) A Judge should not engage professional work. directly or indirectly in trade or business, either by himself or in association with (21) A Judge shall not enter into public any other person. debate or express his views in public on political matters or on matters that are (14) A Judge must at all times be pending or are likely to arise for judicial conscious that he is under the public gaze determination. and there should be no act or omission by him which is unbecoming of his office (22) A Judge is expected to let his and the public esteem in which that judgments speak for themselves. He shall office is held. not give interview to the media. (15) A Judge should not engage in any (23) A Judge shall disqualify himself political activities, whatsoever in the or herself from participating in any country and abroad. proceedings in which the Judge is unable to decide the matter impartially or in (16) A Judge shall disclose his assets which it may appear to a prudent man and liabilities, if asked for, by the Chief that the Judge is unable to decide the Justice. matter impartially. Such proceedings (17) Justice must not only be done but include, but are not limited to, instances it must also be seen to be done. The where the Judge has actual bias or behaviour and conduct of a member of prejudice concerning a party or personal the higher judiciary must reaffirm the knowledge of disputed evidentiary facts people’s faith in the impartiality of the concerning the proceedings. judiciary. Accordingly, any act of a (24) A Judge shall ensure that his or Judge, whether in official or personal her conduct is above reproach in the view capacity, which erodes the credibility of of a reasonable observer. this perception has to be avoided. (25) The behavior and conduct of a (18) Close association with individual Judge must reaffirm the people’s faith in members of the Bar, particularly those the integrity of the judiciary. who practice in the same court, shall be eschewed. (26) A Judge shall avoid impropriety and the appearance of impropriety in all (19) A Judge should not permit any of the Judge’s activities. member of his immediate family, such as spouse, son, daughter, son-in-law or (27) As a subject of constant public daughter-in-law or any other close scrutiny, a Judge must accept personal The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 437 restrictions that might be viewed as (33) A Judge shall not practice law or burdensome by the ordinary citizens and maintain law chamber while he is should do so freely and willingly. holding judicial office. (28) A Judge shall, in his/her personal relationship with individual members of (34) A Judge and members of the Judge’s family, shall neither ask for, nor the legal profession who practice accept, any gift, bequest, loan or favor in regularly in the Judge’s court, avoid relation to anything done or to be done or situations which might reasonably give omitted to be done by the Judge in rise to the suspicion or appearance of connection with the performance of favoritism or partiality. judicial duties. (29) A Judge shall not participate in (35) A Judge shall maintain order and the determination of a case in which any decorum in all proceedings before the member of the Judge’s family represents court and be patient, dignified and a litigant or is associated in any manner courteous in relation to litigants, with the case. witnesses, lawyers and others with whom (30) A Judge shall not allow the use of the Judge deals in an official capacity. the Judge’s residence by a member of the The Judge shall require similar conduct legal profession to receive clients or from legal representatives, court staff other members of the legal profession. and others subject to the Judge’s (31) A Judge shall not allow his/her influence, direction or control. family to maintain social or other (36) A Judge shall not engage in relationship improperly to influence any conduct incompatible with the diligent judicial matter pending in his/her court. discharge of judicial duties.

(32) A Judge shall not use or lend the (37) A Judge shall sit in and rise from prestige of the judicial office to advance the court in time without fail and in case the private interests of the Judge, a the Chief Justice notices that a Judge member of the Judge’s family or of does not utilize the time allocated for anyone else, nor shall a Judge convey or judicial works, the Chief Justice shall permit others to convey the impression intimate the Judge by writing to maintain that anyone is in a special position the court’s time and despite such notice improperly to influence the Judge in the if the Judge does not rectify, such performance of judicial duties. conduct be treated as misconduct and The Law Messenger 438 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1)

he/she will be dealt with in accordance (39) The above Code of Conduct and with law. the ethical values to be followed by a (38) (a) If a complaint is received by Judge, failing which, it shall be the Chief Justice from anybody or any considered as gross misconduct. other sources that the conduct of a Judge 383. The decisions of the apex court of the is unbecoming of a Judge, that is to say, country are final not because they are infallible, the Judge is unable to perform his/her but because the decisions are infallible as they judicial works due to incapacity or misbehaviour, the Chief Justice shall are constitutionally final. By the impugned hold an inquiry into such activities with amendment, the removal mechanism of the other next two senior most Judges of the Judges of higher judiciary by the Supreme Appellate Division and if the Chief Judicial Council has been substituted by the Justice or any one of the other Judges Parliamentary removal mechanism. Since this declines to hold a preliminary inquiry or amendment in ultra vires the constitution, the if the allegation is against any one of provision prevailing before substitution is them, the Judge who is next in seniority restored. The appeal is accordingly dismissed. to them shall act as such member and if upon such inquiry it found that there is 384. I record my appreciation and gratitude prima-facie substance in the allegation for the wonderful, great and valuable assistance the Chief Justice shall recommend to the offered to the court by the very able and erudite president. submissions by the learned Amici during the (b) A complaint against a Judge shall hearing of the appeal. It is on record that the be processed expeditiously and fairly and eminent counsel who appeared on both sides, the Judge shall have the opportunity to discharged their responsibilities to the court did comment on the complaint by writing at not spare themselves and brought their vast the initial stage. The examination of the learning. complaint at its initial stage shall be kept confidential, unless otherwise requested 385. I conclude my opinion with the by the Judge. words of Manu who says, ‘destruction of

(c) All disciplinary action shall law and justice brings about the destruction be based on established of society; the protection of law and justice standards of judicial conduct. should not be destroyed.’ C.J.

The Law Messenger