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 fifth part:
18. United Nations in 1985 formulated Basic Principles on Independence of the Judiciary in order to assist Member States in their task for securing and promoting the independence of the judiciary. The Principles were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolution Nos. 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The basic principles on Independence of Judiciary are as follows: “Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”
19. The Commonwealth Latimer House Principles (2003) on the Accountability of and the Relationship between the Three Branches of Government defined Principles governing Independence of Judiciary.
“Principle IV: Independence of the Judiciary:
An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.
To secure these aims:
(a) Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure:
equality of opportunity for all who are eligible for judicial office; appointment on merit: and that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination;
(b) Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place;
(c) Adequate resources should be provided for the judicial system to operate effectively without any undue constrains which may hamper the independence sought:
(d) Interaction, if any, between the executive and the judiciary should not compromise judicial independence.
Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior that clearly renders them unfit to discharge their duties...”
20. Independence of Judiciary is referred to in Articles 94(4) and 116A of our Constitution, which reads as follows:
“94. ... (4) Subject to the provisions of this constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.”
“116A. subject to the provision of the constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.”
21. In Masder Hossain’s Case, the Hon’ble Appellate Division explaining the dignity provided to the doctrine of independence of Judiciary in our Constitution observed as follows: “The independence of the judiciary, as affirmed and declared by Articles 94 (4) and 116A, is one of the basic pillars of the Constitution and cannot be demolished, whittled down, curtailed or diminished in any manner whatsoever except under the existing provisions of the Constitution, ….....we find no provision in the Constitution which curtails, diminishes or otherwise abridges this independence.”
22. In the case of Walter Valente Vs. Her majesty the Queen, [(1985) 2 R.C.S. 673], Supreme Court of Canada listed three essential conditions of judicial independence and these conditions were reflected in the Judgment of Masder Hossain Case. An independent, impartial, competent and ethical judiciary is essential to the rule of law. It is necessary for the fair and impartial resolution of disputes, for the interpretation of a written constitution and the clear, just and predictable application of the law, and for holding governments and private interests to account. In order to ensure the judiciary as be so fit well equipped and competent to perform these task, often in situations of considerable pressure requires a sound institutional structure to support the courage and integrity of individual judges.
23. A legal framework for that structure, must include: (a) the system by which judges are chosen and appointed; (b) the terms of their tenure; and (c) an independent and competent body to decide on facts amounting to misconduct after due process allowing the judge adequate opportunity for defense.
a. Security of Tenure:
The tenure of judges is one of the most important areas in which legal framework can support the judiciary in upholding the rule of law. Legal guarantees of security of tenure and appropriate remuneration serve to lessen the risks that judges face in holding powerful individuals and government bodies to account.
They do so by making it more difficult for external pressure to be brought to bear upon judges and reducing their exposure to conflicts of interest. Such guarantees therefore play a direct role in sustaining an independent judiciary, which is one of the most important elements of the rule of law.
The tenure is secured under Article 96 which was originally upto 65 years of age, since increased to (sixty seven) unless removed for incapacity or misconduct, keeping pace with the average life span in Bangladesh now 71 years taking into account the improvement in quality of life and health care, contributing to high longevity. This present tenure of Judges deserve to be extended at least upto 75 years for getting benefit of experience and wisdom they can contribute to justice delivery system, making further contribution and thus enrich our jurisprudence as they become more experienced and mature with wisdom. Though it is not subject matter for present deliberation, we are again time bound under the Constitution and often loose able and competent judges when they are in their best. This also needs rethinking. I raise this question for parliament to consider increasing the tenure of Judges. In England a judge of the Superior Court traditionally would enjoy the tenure for life and would retire when his companion judges would give a hint that (s)he is dodging too often while hearing a case.
It was also observed in Masder Hossain Case that, “The essentials of this security are that a Judge be removed only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure whether until an age of retirement, for a fixed term, for a specific adjudicative task, that is to secure protection against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.” (Paragraph 55)