The recent judgment by the Supreme Court of Bangladesh on the 16th Amendment to our Constitution is praiseworthy and historic.
The amendment refers to Article 96 of the Constitution. The background is as follows:
1) The relevant part of Article 96 in the original Constitution read, "A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehavior or incapacity."
2) After the 4th Amendment it read as “অসদাচরণ বা অসামর্থ্যর কারণে রাষ্ট্রপতির আদেশ দ্বারা কোন বিচারককে তাঁহার পদ হইতে অপসারিত করা যাইবে;”
3) Due to the 5th Amendment it read, "There shall be a Supreme Judicial Council, in this article referred to as the Council, which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges:"
4) Thereafter in view of the 15th Amendment it read: “একটি সুপ্রীম জুডিসিয়াল কাউন্সিল থাকিবে যাহা এই অনুচ্ছেদে “কাউন্সিল” বলিয়া উল্লেখিত হইবে এবং বাংলাদেশের প্রধান বিচারপতি এবং অন্যান্য বিচারকের মধ্যে পরবর্তী যে দুইজন কর্মে প্রবীণ তাঁহাদের লইয়া গঠিত হইবে:”
5) After the 16th Amendment it reads more or less as of (1) above.
Finally, has come the judgment on the 16th Amendment to the Constitution.
The crux lies here. The 1972 Constitution could not perhaps comprehend the real impact of Article 70 of the Constitution that scared away the MPs from free voting. The MPs have ever since been voting on the party line.
Let us now look at the situation of Article 96 after the 4th Amendment of the Constitution. The system of government was changed from parliamentary form to presidential one. Obviously, some power or authority of parliament was diverted from the House to Bangabhaban, without realising its total impact. In order to democratise more the whole constitutional and governance gamut, came up the concept of the 5th Amendment to the Constitution.
The 5th Amendment introduced the Supreme Judicial Council (S.J.C). It was deemed imperative since the House was mono-cameral and not bi-cameral and the sway of Article 70 was predominant which impacted the independent view of the MPs.
The 16th Amendment to the Constitution was designed to go back to the 1972 Constitutional provisions of Article 96.
The Supreme Court has now given its historic verdict terming the 16th Amendment as unconstitutional, illegal and ultra virus the Constitution. Details of the judgment are yet to be known. However, it appears to have strengthen the case of the separation of the Judiciary from the Executive.
The present judgment of the Supreme Court is the right approach but not an end in itself. Power belongs to the people.
Democratic power process is cyclical, operated through the organs of legislation, judiciary and executives. The key issue is complementarity, compatibility and mutualism amongst the organs of the state.
The writer is a former Member of Parliament, State Minister, Ministry of Civil Aviation & Tourism and Textiles and President of South Asian Federation of Accountants (SAFA).