Solution lies in a combination of current system and the abolished 16th amendment

 In an interview with The Daily Star, Asif Nazrul, professor of law at the University of Dhaka, researcher, columnist, and an elected bureau member, South Asians for Human Rights, talks about the Supreme Court’s verdict on the 16th Amendment, the observations it made, the Executive-Judiciary impasse, and possible ways forward.

The Daily Star: What is the significance of the Supreme Court verdict and the observations on the 16th Amendment?

Asif Nazrul: The 16th Amendment verdict has saved one important pillar of independence of Higher Judiciary, although much will also depend on activating the Supreme Judicial Council (SJC) for dealing with allegations against the Judges.

The 16th Amendment and the draft Act formulated under it aimed at rendering all the powers to the Parliament in investigating the complaints and terminating the Supreme Court Judges. This fundamentally flawed system in which Parliament is the complainant as well as the adjudicator is prevalent in only two Commonwealth countries (Nauru and Samoa). In all other Commonwealth countries, in order to save the Judiciary from the undue influence of the government, the investigation of allegation (and in many cases the adjudication as well) against Higher Judiciary Judges is conducted by bodies dominated by Judges and legal experts.

For example, among 48 of the commonwealth countries studied by the Bingham Center for Rule of Law in 2015, the question of removal of Higher Judiciary Judges is decided either by Ad Hoc Tribunal or by Permanent Disciplinary Councils (Like the Supreme Judicial Council) in 28 countries.  Even among the 16 countries where the President has the power to remove a Higher Judiciary Judge on the resolution of the Parliament, all but 2 have given the authority of investigation to judicial bodies. For example: In India, according to the Judges Enquiry Act, the investigation in conducted by a committee of three member comprising two Higher Judiciary Judge and one legal expert.

In short, at present only in Nauru and Samoa, no one from the Judiciary is involved either in the investigation or adjudication of allegation against the Higher Judiciary Judges. The 16th amendment judgment has rescued us from joining this iniquitous club of countries.

The verdict has created a debate whether it is in contradiction with the Constitution of 1972. It has been stated that it is a deviation from it, while others have tried to show that the verdict only solidifies the spirit of the original constitution. What are your thoughts on this matter?

As established in many recent cases in the subcontinent, the basic structure of a constitution is not provision-specific; it is rather principle-specific. As reaffirmed in the 8th Amendment case, one basic principle of Bangladesh constitution is independence of Judiciary. In between the provision of investigation by parliament members (16th amendment) and investigation by the SJC comprising the most senior three judges of the apex court (current system), the latter definitely provides better safeguards to the independence of judiciary.

We have to keep in mind that every original constitution in the world gets amended. The question is whether the amendment is for strengthening or weakening the original constitution. The 1972 Constitution provision on removal of Judges was actually weakened by the 4th amendment of 1974. The Supreme Judicial Council system, first introduced by the 5th amendment of 1977, had rather strengthened independence of Higher Judiciary. It is in the post-SJC period when we got the historic judgments in some constitutional cases in which the Judiciary demonstrated itself as an independent entity. 

After the verdict, there has been criticism of the Judiciary and the Chief Justice from different individuals from the Executive—what is your legal opinion on the matter?

The bottom-line is that you can always criticise the judgment, but not the judges. The ministers and the political leaders of the ruling government have failed to put forward any rational or legal argument against the judgment. Some of them are misquoting or misinterpreting the observation of the Chief Justice or are making comments which are clearly in contempt of court. Just imagine—how can a minister previously convicted of contempt of court, or a sitting secretary of the government make derogatory comments about the CJ and other judges!

The Supreme Court in the verdict also made some observations about the current state of governance in the country. Could you elaborate and explain the issues it raised?

Making observations in a judgement, which technically is called obiter dictum, is a common norm in most judicial systems. The length or volume may vary—for example judgements in the US are generally much shorter than in most of the common law countries, while judgments in South Asian countries, in particular India, Pakistan and Bangladesh, are generally very long with many observations, narrations  and contextualisation. The question is whether those are relevant to the contentious issues or are connected with the arguments put forward during the adjudication.

In my view, the observations of the Chief Justice made in the 16th amendment judgment are relevant to the basic premise of the case. For example: the CJ has made a critical observation on the state of parliamentary democracy and the election procedure to opine that unless the nominations of candidates are properly done, unless the election is fair, and unless parliamentarians enjoy voting freedom, the Parliament cannot be entrusted with the responsibility of dealing with the removal of judges.

We may recall that in previous judgements on the 5th, 7th and 13th amendment cases as well, detailed observations were made on political issues, the state of democracy and constitutional history. Some of those observations in these cases were rather irrelevant and subjective. If someone is comfortable with those observations, what is the problem with 16th Amendment judgement? 

What are the implications of this current row between the Judiciary and the Executive and what is the way out of this apparent impasse that we are witnessing?

Implications are bad, and it could be worse in the days to come. The row has already exposed the weakness of all the three organs of the Government: intolerance of the Executive to the constitutional authority of the Apex Court if exercised against their vital interests, inability of the Judiciary in punishing contempt offences orchestrated by political will of the ruling party and the immaturity of the Parliament in reacting to the Apex Court judgment. When you look at the distortion, misinterpretation and misquotation of the judgment of the CJ, it raises questions about the intellectual integrity of some of our leaders!

The solution lies in bringing the 17th amendment, which would give the parliament the authority to propose removal of a Higher Judiciary Judge on the basis of specific allegations and which would give the Supreme Judicial Council the authority to investigate the allegation, basing on which the President would decide whether to remove a Judge. This proposed amendment would be a combination of the current system and the abolished 16th Amendment and might please both the Parliament and the Judiciary.

Source: http://www.thedailystar.net/

Updated On: August 31, 2017

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