17 September 2017

http://dailyasianage.com/news/86039/16th-amendment-amenability-of-
-original-provisions-of-constitution
16th Amendment: Amenability of original provisions of constitution
M S Siddiqui

Bangladesh's original constitution adapted in 1972 provided an article 96(2) for the removal of a
Supreme Court judge by an order of the President in pursuant to a resolution of Parliament passed
by a two-thirds majority and only on the ground of proved misbehavior or incapacity.
Before exercise of this provision for removal of a judge, the Fourth Amendment to the Constitution
(1975) had written it off, making the judges removable without any legal process, that is, merely by
an order of the President. After the political change over, the first military regime extra-
constitutionally amended to introduce Supreme Judicial Council (SJC) for the judicial removal
process by the judges of the Supreme Court, which was later affirmed by the Fifth Amendment in
1979 by the Parliament. The SJC was to be consisted of the Chief Justice of Bangladesh and the
two most senior judges of the Appellate Division of the Supreme Court.

The Fifth Amendment that approved all law and rule promulgated by the military regime and also the
provisions relating to the SJC, was declared un-constitutional by the High Court Division in the Fifth
Amendment Case (2005) but approved the validity of the SJC, although it invalidated most
constitutional changes affirmed by the impugned amendment. The decision of the High Court has
been uphold by the Appellate Division in 2010. However, in its review decision of 29 March 2011, the
Appellate Division (AD) modified the main judgment of High Court (HC), subjecting its approval to
the SJC to be valid provisionally and until 31 December 2012.

The 15th amendment (2011) of the constitution by the Parliament had reviewed and thoroughly
modified the Constitution but instead of removing SJC, kept the SJC (not expressly). The Supreme
Court (AD) interpreted this as Parliamentary approval by 15th amendment. The Attorney-General
argued during hearing at HC that this modified judgment meant that the Court allowed time to "the
Parliament to make necessary amendment to the Constitution" and defend the 16th amendment was
as per decision of the AD in 5th amendment case.

It seems that all the amendments and proclamation were invalid except introduction of SJC at the
decision of the Supreme Court. This 'pick and choose' technique while adjudicating the validity of a
constitutional amendment probably suggests that the Court was inspired by its own value preference
as to the removal process. This raises the question if the court can invalidate an original
constitutional provision even though re-enacted by an amendment. This has been a unique scenario
that indeed questions the established constitutional theories.

The Parliament in the 16th constitutional amendment (2014) that restored an original constitutional
provision providing for the removal of Supreme Court Judges by a parliamentary resolution pursuant
to a proven misconduct. Unlike other amendments, 16th amendment was not in fact an amendment
of the Constitution. It is an act of restoration of an original provision of the Constitution through the
means of an Amendment.

There is a question, whether; A court cannot declare void an original constitution? There is a
distinction between Constituent Power of the Original People and Derived (Constituent) Power of a
parliament. Not that an original provision cannot be amended. The job belongs to parliament and
only for improvement.

There is virtually no instance globally of judicial invalidation of original constitutional provisions. It is

relevant here to note that there seems to be only one rare instance of judicial invalidation of original
provisions of the constitution, coming from Honduras regarding amendment of tenure of President.
Prof Didwanul Hoque of DU in a recent research paper argued that the court lacks authority to
invalidate an amendment restoring an original constitutional provision, and that claiming and
asserting such a power would run counter to the original constituent power of the people who
enacted the constitution. The analyses will have a critical reference to a similar case from Honduras.

The Honduran Constitution of 1982 limited presidential term and made the prohibition of President's
re-election an unamendable clause. The constitutional Court annulled the original constitutional
provisions that prohibited presidential re-election. Commentators critiqued this decision as "troubling"
and also as an instance of "abusive constitutionalism" by judiciary.
There is a debate going on in the study of Jurisprudence of a crucial question, how far a court can
go in invaliding an amendment or how it interprets the constitution in that exercise. Despite the trend,
the institution of judicial reviews generally and the judicial power to review constitutional
amendments in particular has been widely critiqued persistently by leading constitutional law
philosophers as anti-democratic.

The latest decision in this line comes from the Hong Kong High Court which on 14 July 2017 (that is
after the 16th amendment judgment in Bangladesh) held that "there is no question that [an original
provision] can be said to be unconstitutional". The petitioners argued that Article 104 of the Basic
Law (Oath to Members of Legislative Council) was illegal. The court argued that, "[t]his startling
proposition that a court can declare BL104, a constitutional provision itself, to be "unconstitutional"
simply cannot stand".

The Attorney-General of Bangladesh argued during hearing at High Court that the original article
96(2) of the Constitution was enacted by the Constituent Assembly in exercise of its constituent
power and the Sixteenth Amendment has simply restored that original provision, which cannot
therefor be considered invalid (Sixteenth Amendment Decision, above n. 5, at p. 36). As against the
argument that the Court lacked power to invalidate an original provision of the Constitution, the Chief
Justice reasoned that the institution of SJC became an unamendable basic feature of the
Constitution particularly after the insertion into the Constitution the eternity clause, art 7B, by the
15th Amendment. After listing a number of provisions that were to be treated unamendable, the
unamendability clause (article 7B) mentioned of "the provisions of Articles relating to the basic
structures of the Constitution". The legal experts were elsewhere argued that because of such open-
ended unamendability, art 7B is itself unconstitutional.

It may be refer to the decision of 8th amendment case, which established that it is the independence
of the judiciary what was a basic pillar of the Constitution, not any particular mode of judicial
removal, although that Court appreciated the legality of the SJC.

There are no set formulas of how to achieve and maintain judicial independence. Despite wide
commonality among the measures of judicial independence across the world, means and processes
of ensuring judicial independence are indeed society-specific. In the Sixteenth Amendment Decision,
the Court in reality engaged in an exercise of choosing which mode of judicial removal is more
suitable and conducive for judicial independence in the Bangladeshi context. This is a matter of
choice and judgment to be exercised by the people through their elected representatives. Both the
system of Supreme Judicial Council and the parliamentary process of judicial removal are
constitutional, provided that there is an objective legal process of proving the allegations of
misconduct or incapacity of the concerned judge.

What was not addressed by the Appellate Division is the fact that the impugned parliamentary
process of judicial removal is to be preceded by a positive legal determination of the guilt of the
concerned judge, where a peer-driven mechanism can be introduced. True that this was to be done
by an ordinary Act of Parliament (art 96(3)), but the Court did not wait till such a law is enacted.

Practically, the Appellate Division could have entered a dialogic model of judicial review by insisting
the Parliament to enact such a law providing for peer-driven trial of judges alleged to have
misconducted. Indeed, the Court (Per Siddique, J) gave a hint that the Parliament ought to enact
such a mechanism within the scope of 16th amendment. See at pp. 755-756 ("keeping the provision
as provided in Article 96(2) of the original constitution the legislature ought to provide the provision in
the Constitution for holding inquiry in respect of misbehavior or incapacity of a Judge by the three
senior most Judges of the Supreme Court").
One may not agree with the Court as regards the legality of the 16th amendment. But, to obey the
court-decision is a constitutional duty of the Government and citizens. Until this decision is reversed
in review, it continues to remain a valid piece of constitutional law.

The writer is a Legal Economist. E-mail: mssiddiqui2035@gmail.com