The Supreme Court, on July 3, 2017, upheld a verdict of the High Court that declared illegal the 16th amendment to the Constitution which had empowered the parliament to impeach the apex court judges on ground of physical incapacity or moral turpitude. The Supreme Court termed the 16th amendment a blow to
independence of judiciary. The government on January 4 this year preferred an appeal against the verdict.
The SC appointed 12 amici curiae seeking constitutional interpretations relating to the matter. Appearing as amicus curiae, Barrister M Amir-Ul Islam put the following submission before the apex court opposing the 16th amendment. We are going to publish the full text of his submission in phases. Today we publish its second part:
5. I deem this opportunity to be the most appropriate forum as well as the occasion for a constructive and fruitful engagement among all the three organs of the state, particularly when the learned Attorney General appears in this case with his able team assisted by the research and drafting wing of the ministry to help build a consensus on these issues not in the spirit of Confrontation, but for seeking enlightenment as to how we can find the balance and harmony to be ensured in working of the Constitution containing a justice delivery system.
Supreme Court being the final arbiter as the guardian of the Constitution in determining law and the intent of Constitution in order to ensure equal justice and thus enjoying confidence not only from other organs of the state but also help other organs to be within the limits of power and authority within the Constitutional Rule of law generating confidence among the people by having coordination among three organs within the limits of their respective orbits and enrichment of the quality of justice delivery system for the people to seek refuge of the Court being the last resort for justice.
6. In search for the answer to the question raised in this case as to the mechanism for removal of judges of higher echelon of judiciary, it may be useful sharing the experience and prevalent practices in other jurisdiction with their respective problems & pitfall experienced by them as well, and sharing the opinion of experts and academics having written and researched on this topic culminating into various conventions.
A. Those collective and universal experience including
i) Those in our own history and background in the working of our own Constitution (i.e. in the process of our own amendments and their objective analysis) and the historic background in which they were done and what was the compulsion, if any behind those, starting from the Constituent Assembly in its maiden session after the victory in the war of liberation.
ii) Precedence and practices followed by other nations and civilization;
iii) Our own perspectives, and experience we have undergone during those challenging times when ill winds blew off the basic structure not only by undermining the Constitution purporting to subvert the Constitution, further undermining it’s institutions not once but on three major occasions occurring almost in each decade; and
iv) Our response and resistance and awakening experience to meet such calamity; and our togetherness and significant role of this Court acting as the guardian of the Constitution rising to the occasion; and Bar and the Bench collectively meeting those challenges, reinforcing the Constitutional integrity in order to help create an environment in which people could mobilize strength for reinforcing their original rights and restore those institutions through democratic process, enabling our people to play their role as the ultimate source of power which belong to them remain a glorious heritage of our system that works in harmony for restoring back the fundamental integrity of our constitution.
v) Our Courts have in the past played glorious role in upholding the Constitution, reinforcing those values for which people made their supreme sacrifice in the war of liberation “so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind.” (Preamble)
7. In order to deliberate on the ‘Independence of Judiciary’, Chapter-I (The Supreme Court) under Part-VI need to be analyzed in its entirety. It is most important therefore that the power for Judiciary, or Executive, or Legislatives, all of which originate from people and for their interest and benefit; while the judiciary in particular protecting and upholding those rights of the citizens guaranteed under Fundamental Rights contained in Part-III of the constitution, to be read along with those in part II under the head of Fundamental Principles of State Policy. The guidelines of the Preamble particularly emphasizes on the 3rd and 4th Paragraph: the oath of each member of the collective entity knows as “we the people……………”…. “Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation, a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”.
THE POWERS OF THE HIGH COURT DIVISION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS:
8. Those promises and commitments are further reinforced under Article 27(equality before law); incorporating the rule of law as Fundamental Right in Article 31 of the Constitution.
In case of any threat or violation to such right the Hon’ble High Court Division of Supreme Court has been fortified under Article 102 read with Article 44 of the Constitution as a guarantee for protection of those rights under part III. They are to be read in light of part II, enabling the Courts to enforce those principles to be read along with those fundamental rights. Fundamental Principles of state policy (Part II) plays the key role as a guide to interpretation to all laws and the Constitution including those under part III. The Hon’ble High Court Division has been given a very specific role to perform in exercising this plenary power not to be diluted in any manner, not even by the Appellate Division except by way of an appropriate appeal under Article 104 of the Constitution only against a judgment, decree and order, (does not include ad interim order) unless such order becomes oppressive in any manner and thereby falls within the realm of doing Complete Justice.
9. Before entering into the realm of argument, some important contents of Amendment of the Constitution, Basic Structure Independence of Judiciary, Separation of Powers, need to be discussed in this context and background stated herein before.
Amendment of the Constitution:
10. Constitution is the supreme law of the land. While drafting a constitution the framers intends the constitution to be the supreme authority and no organ is above the Constitution. Our experience tells us that in a changing world having uneven Society concept of equality in equal circumstance and their application gave rise to a vast area of jurisprudence.
Constitution being the reflection of solemn expression of will of the people of a defined territory, recognized as an independent state it must contain within itself the mechanism to adapt the changing aspiration of the people and embrace, adjust and adopt to the change necessary for further improving the efficacy and efficiency of the Rule of law for the benefit of people and their governance within the frame work of the Constitution. Such improvements are added not so much by amendments but it is to be made so effective through their application and thus expounding the Constitution which is distinct from lexicographic interpretation. The classic example of which is expressed in the case of Marbury vs Madison, (1803) 5 US 137.
11. Constitution holds a different position from other laws as we all know. All powers are derived from the supreme law, thus the procedure to change the provision of the Constitution is different as well. In the context of amendment, Constitutions can be divided into two categories i.e., (a) flexible, and (b) rigid. Professor K.C. Wheare in his book Modern Constitution (page-15) regarding the classification observed as follows: “Constitutions may be classified according to the method by which they may be amended. We may place in one category those constitutions which may be amended by the legislature through the same process as any other law and we may place in another category those constitutions which require a special process for their amendment.” Unwritten and Flexible Constitutions are amendable like ordinary legislations by obtaining simple majority in the Parliament, while it takes two-thirds majority in order to amend a written Constitution.