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 publishing the full text of his submission in phases. Today we publish its sixth part:
b. Adequate Emolument: Judicial Remuneration should reflect the professional skill and responsibilities of a judge who should guard against financial inducements or conflicts of interest that might lead a judge to compromise his or her independence. Establishing independent bodies to review judicial remuneration at regular intervals, as a number of Commonwealth jurisdictions have done, represents best practice. Ideally such bodies should be established within a constitutional and statutory framework and all three branches of government should approach matters of judicial remuneration in a co-operative rather than a confrontational manner, as often is noticed between the government service and those holding judicial posts.
It is also possible to protect judicial remuneration in ways that with greater flexibility to respond to economic crisis. The minimum requirement is that if the holders of public offices are to have their salaries cut; judges should not to be singled out for disproportionate reductions.
In Masdar Hossain Case Hon’ble Appellate Division observed that,
“The essence of such security is that the right to salary and pension should be established by law or rule and not to be subject to arbitrary interference by the executive in a manner that could affect judicial Independence.” (Paragraph 57)
c. Institutional Independence: Venice Commission in its Report on the Independence of the Judicial System, observed that, “In the decision making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.”
With regard to immunity from external influences in the Masdar Hossain case it was observed that, “The Judiciary must be free especially from the Parliament and the Executive to decide on its own matters of administration bearing directly on the exercise of its judicial functions. The Judiciary must be free from actual or apparent interference or dependence upon specially the executive arm of Government. It must be free from powerful non-governmental interference like pressure from corporate giants, business or corporate bodies, pressure groups, media, political pressure etc.” (Paragraph 58)
In the special context of Bangladesh the Hon’ble Appellate Division included two other conditions of judicial independence.
While making the Constitution at its drafting stage questions were raised with regard to the appointment of Judges. Original proposal as presented in the first draft contained only Article 95 (1) and (2) (a) & (b). Allow me this [indulgence to share my experience in the drafting committee deliberation on this issue. Soon after the liberation the old East Pakistan Assembly Hall was cleaned up removing all the debrises & garbage and space was created in a make shift manner for sitting of the committee without any secretarial help]. Hence I resort to my memory as part of oral history. I raised the issue that (a) and (b) under Article 95(1) at best may serve the purpose of the eligibility. But for the purpose of appointing Judges in the highest judiciary we must have quality criteria with excellence & erudition along with the strength of character, quality and qualification to be ascertained by adopting the method and yard stick for measuring and assessing the person to be appointed as a Judge in a transparent manner. This can only be done by applying an objective criteria and yardstick whether the proposed candidates contain such strength in character and qualities needed for one to become a Judge of the Superior Court. They must be chosen by a competent body and it must be so provided in the Constitution itself. I further emphasized that our people have fought for Justice which so long denied to our people and they suffered such deprivation from time immemorial, suffered not only in deprivation of basic needs but also deprived of “Shubichar”. It remained a distant dream particularly for the weaks & “have nots” in every sphere of their lives. Weak and the poor have been deprived of justice not only in economic, social and political arena but also in the arena where ‘Justice’ is supposed to be dispensed in an even handed manner untouched by corrupt practices.
Judges of our highest Court therefore must be chosen through a process on the basis of meritocracy having ethical and moral competence fortified with courage and conviction for upholding the Constitutional values and having ability to dispense ‘Justice’ without fear or favour, free from the influence of state and corporate power, so that they can protect the weakest against the strongest in an environment where the law shall not bend, nor the judge would budge, nor succumb to any influence or template under whatever pressure or temptation they may be subjected to. I kept on insisting on this topic. Both our chairman Dr. Kamal Hossain and the secretary Dr. Munim belonged to the old School of thought based on good practices and convention and I was no exception either; but on this issue I was very emphatic and was able to carry the committee in principle;
but it was agreed that these aspects should definitely get priority but instead of putting such qualifications in the Constitution, let this matter be dealt by the future Parliament, making appropriate law in this respect, which I also concurred and thought reasonable and practical.
Article 95 ultimately underwent a change by introduction of Second Proclamation (Fifteenth Amendment) Order 1978 is an unique clause for making the Legislature so powerful in this regard that it can vary and supersede the existing requirement under Article 95 (2) (b). Another significance of this Article is that our Constitution is not rigid. It is flexible in order to ensure best quality and character for judges to such an extent that in this matter law to be made under 95 (2) (c) Parliament introduced additional qualification (in addition to 10 (Ten) years practice or service).
Not to talk about the absence of the law as mandated under constitutions for Parliament which has been in default; and people consequently are being denied that such process in selecting their Judges to be so qualified under that law is still missing. Parliament therefore must fulfill the obligations as ordained by the Constitution and that being in default, people are deprived of quality of justice. People are not so much concerned about the removal procedure as they deserve to have an objective and specific criteria for selecting judges in an objective and transparent manner.
On the contrary, citizens have been subjected to a regime to witness a non transparent and arbitrary appointment of judges in the past even without consulting the Chief Justice. Mr. Justice Shahbuddin Ahmed had to learn from the morning news paper, names of certain persons who were made Judges of which he had no earlier information. Some of them were not even known to him. On that day Bangladesh Bar Council was holding its Annual Conference in the Supreme Court premises where all the Presidents, Secretaries and other Senior leaders from all the District Bar Associations and their representative delegates were present. Dr. Kamal Hossain was presiding and I was conducting the meeting. Hon’ble Mr. Justice Shahbuddin Ahmed said that “Chief Justice is Mr. nobody” while it comes to appointing new judges in the High Court. After the Hon’ble Chief Justice finished his short speech, everyone was taken by surprise and I announced that we are going to establish that it is the Chief Justice who must not only be consulted but the Consultation must be an effective consultation and without his nod Judge could not take the oath. The Assembly of leaders of all the Bar unanimously endorsed this view.
All the prominent leaders of the Bar who were with us among other including Syed Ishtiaque Ahmed, Dr. Kamal Hossain, the then sitting President Kazi Golam Mahbub former President, Khandakar Mahbub Uddin Ahmed and other Senior members met Hon’ble Chief Justice and other companion judges. We urged them not to give oath to the Judges whom the Head of the Executive appointed arbitrarily and without any consultation with the Chief Justice.
We waited on deputation upon the Head of the executive. Lawyers irrespective of party affiliation gave their entire support for the cause and the time honoured convention was restored.
Ultimately the file was sent to the Hon’ble Chief Justice and an effective scrutiny and consultation took place. Chief Justice made a choice and ultimate list was finalized by excluding few from the list and the oath was given only after Hon’ble Chief Justice concurred.
Primacy of the Chief Justice’s opinion was thus established and reinforced; Mr. Justice Mustafa Kamal refers this in his Memorial lecture delivered in Dhaka University later published in form of a book, ‘Bangladesh Constitution: Trends and Issues’, Justice Mustafa Kamal ( 1994) by Dhaka University Press.