Tuesday, November 21, 2017

Appellate verdict on 16th amendment is flawed: Law Commission chief

  • Senior Correspondent, bdnews24.com
    Published: 2017-08-17 20:52:24 BdST

bdnews24

The Appellate Division’s verdict and observation cancelling the 16th amendment contain “flaws”, according to the chairman of the Law Commission.

“The theories the verdict was based on did not seem correct to me. The main verdict also seemed flawed. The observation is even more flawed,” ABM Khairul Haque, a former chief justice, said during an interview on Thursday.

But when asked to specify any objectionable part, he said the top court’s verdict must be accepted despite the differences in opinion.

Justice Haque was asked whether he was questioning the unanimous decision reached by seven top appeals judges.

“Yes, I am raising questions. I have that right. I already said that I’m bound by the judgment. But every citizen of Bangladesh has the right to have questions about it.”

The Law Commission chief sat for the interview with bdnews24.com besides two other media outlets at his office amid pro-BNP lawyers' demand for his removal for his earlier comments on the verdict.

The Appellate Division published the full verdict on the amendment on Aug 1. Chief Justice Surendra Kumar Sinha's observation on Bangladesh's politics, past dictatorships, electoral commission, corruption, governance and judiciary in the verdict has sparked sharp reactions.

The government, which had passed the 16th amendment in 2014, announced that it will get 'some unacceptable parts' erased from the verdict.

The decision to take away parliament's power to sack judges over misconduct and incapacity has, however, been hailed as historic by the BNP.

'Ready for criticism'

Justice Haque said the court should be ready for criticism if it terms MPs 'ignorant'.

He quoted from Lord Denning, known as the "People's Judge" of the UK in the 1950s - "Justice is not a clustered virtue, it must face the criticism of the people."

The former chief justice said, "I am one of the people…The judges should be tolerant."

"And how can the judges expect the members of parliament to be silent after using terms like 'ignorant' to describe them?" he asked.

"Dr Razzaque, Matia Chowdhury, and the others are ignorant then. If the judges say so, they must face the consequences," he added.    

'Counter-argument'

The Law Commission chairman said the Appellate Division, while arguing in favour of reviving the Supreme Judicial Council to sack judges, mentioned the Muslim Family Laws Ordinance, passed during the military rule in 1961.

"That's the weakness of his verdict. He brought things that cannot be compared now," Justice Haque said, in a clear reference to Chief Justice Sinha.

About the reason behind retaining the Muslim Family Law, he said the decision to maintain continuance of laws was taken when the declaration of independence was adopted, and those were legalised in the Section 152 of the Constitution.

He noted that the judges argued that some new issues were included in the Constitution through the 15th amendment. "So what? Those have been included, and those can be dropped any time."

He also thinks the reference of retaining 'Bismillah' in the preamble of the Constitution and Islam as the state religion, both added during a military rule, is 'irrelevant'.

"Of course, it was done illegally during military rule. We declared it illegal in the seventh amendment. Then why was it included through the 15th amendment?

"There is more - these two are not in their previous form, but changed. But after all, why is he giving these excuses? There is no option to give excuses in this law. These arguments are weakening the verdict," Justice Haque said.

About the use of the word 'guardian' in the Appellate Division verdict, the Law Commission chief said, "They (Supreme Court) are the guardians, but it doesn't mean the people are immature."  

The guardianship of the constitution, which is with the Supreme Court, "is not like the guardianship of an immature person", according to Justice Khairul Haque.

"No one of us is noble lord. You call us lord, that's why we are lords," he said.

"So the term guardian here does not mean the guardian of Wards Act. One-sixty million people are immature and they are the guardians - they don't have the guardianship in this manner. And no one will accept it even if it is said so.

"The people themselves are their guardians," he added.    

Referring to the preamble of the constitution, he said, "The people say it is their duty to preserve this constitution. If there is any guardian, it is the people themselves. The people are the final words. Please keep that in mind."   

"These 160 million people cannot come to parliament to make laws. In representational democracy, parliament acts as the guardian on behalf of the people," he clarified.

'Returning to basic form'

Justice Haque said related clauses were restored to their basic forms in the 5th, 7th, 8th, and 13th amendments.

"This is the first time a martial law provision has been adopted going beyond the original constitution," he said about the 16th amendment verdict.

"Justice Imman Ali spoke about another matter - whether it is contradictory to the original constitution. Then it would be beyond the constitution. But he lost track by the end.

"Did the 16th amendment violate the two sections that ensured the judiciary's independence? They didn't say anything. Because it didn't violate those. They would have said something if it did so," he said about the amendment.

'Judges made liable to chief justice'

Khairul Haque said, "They didn't get the point or didn't want to say that the judiciary's independence and liabilities are not the same thing. Everyone, even the number one citizen, the president, and the prime minister, are accountable in Bangladesh.

"According to this verdict, judges are accountable to the chief justice. Because the chief justice himself wrote it in his verdict.

"But the judges are liable only to the people, and being so, to their representatives. They cannot be liable to any other person," he added.

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