Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Wednesday, November 22, 2017 07:46:13 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

16th Amendment Case : A Judgment on Supremacy

By
09th-Sep-2017       
Comments
Share your thought
Post a comment »
Read all () »

Barrister M Qaium :
Appellate Division by its historic judgment on July 3rd 2017 upheld the judgment of the High Court Division dated 05.05.2016 striking down the 16th Amendment of the Constitution as unconstitutional. By 16th Amendment of the Constitution, Parliament assumed the removal power of the judges of the Supreme Court which was earlier dealt with by the Supreme Judicial Council.
People mostly concludes that the moot question was raised and settled in this case was 'whether the constitutional 16th Amendment has violated the basic structure of the constitution and thus void, illegal and unconstitutional being against the spirit of principle of separation of judiciary and its independence. People's concern was if the removal mechanism of the judges of the Supreme Court is given to the Parliament, whether the independence of the judiciary will be affected and/or hampered. Our Apex Court by its wisdom unanimously held that 16th Amendment of the Constitution is void, illegal and unconstitutional.  In doing so, the Apex Court necessarily discussed the events taken place in our political history of last seven decades (1947-2014) in general and 1971-2016 in particular in order to justify its verdict for protection of the independence of judiciary from the influence of other organs.
Judgment of the 16th Amendment case has reminded us all once again of the facts that we, the Peoples of Bangladesh, have chosen ourselves a 'written constitution' unlike West Minister form of democracy. Modern constitution is essentially a written constitution which can put a "balanced restriction" on unfettered, despotic and totalitarian power of the executive so that it cannot transgress the limit prescribed. Court gave us all a reminder that about a very simple fact that: Bangladesh has a 'written' constitution. Having a 'written' constitution means nothing but having a power to exercise, that power is essentially restricted in the sense that it is not unfettered or unlimited, and it is balanced in the sense that while exercising that power, all State organs shall not work in isolation rather they will combine their efforts together so that maximum benefits to the people are ensured.
I see this judgment from a different perspective. The issue of supremacy was brought into light and settled by the Apex Court though not much talked about. Some politicians, intellects and jurists borrowed the West Ministerial idea that parliament as representative of the people is supreme over other organs of the state. The apex court through this judgment has buried this idea of supremacy of Parliament and affirmed in its own language that "only people are sovereign and only the Constitution is supreme".
The idea of supremacy of the Parliament has never been a Bangladeshi one. It was originated in England in 1688 by reducing crowns prerogative powers; the supremacy of parliament was established. Since then legal sovereignty remains with the Parliament of United Kingdom. The British Parliament exercises sovereign legislative power, it has unfettered rights to make and unmake any laws. It is said that British Parliament can do anything except make a man woman and a woman a man. We must however be mindful of the facts that UK does not have an absolutely written constitution prescribing limit of the powers and authority of different organs; in contrast Bangladesh essentially has a written constitution. In a written constitution powers of the different organs of the state are prescribed and limited. No one or authorities under a written constitution will exercise their power/authorities beyond limit prescribed. In the judgment Supreme Court observed that "There is a misconception about the Parliamentary sovereignty or legislative privilege in a written constitution". Supreme Court went on to say that "only the people are sovereign and only the Constitution is supreme. All other institutions are merely the instruments or agencies to fulfill the greatest purposes enunciated in the Constitution. Our Constitution envisages not only a democracy of men but a democracy of institutions. The attributes of sovereign authority or unlimited power do not attach to any office or any institution. To claim sovereignty for the Legislature is directly contrary to the law...." Article 7 (1) of our Constitution clearly expressed that "All powers in the Republic belong to the, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution". No organ can claim supremacy over any other organs. When the Judiciary declares any law enacted by the Legislature to be unconstitutional, the Judiciary is not exercising any superior power, nor does it claim supremacy over parliament but simply acting in line with its constitutional obligation.
The written constitution of Bangladesh has placed Supreme Court in the position of the Guardian of our Constitution itself. Supreme Court will not therefore accept imposition of any inroad upon the Constitution. The criticism of Supreme Court from the politician legislature and executive is unfortunate as constitution itself envisages for exercise of such judicial review power by the Supreme Court. Supreme Court has just merely performed its constitutional sacred duty which Supreme Court bound to under the  constitution.
Following the judgment given in 16th Amendment Case it may be pertinent to discuss whether the Parliament may pass an Amendment of the Constitution or any legislation which is being struck down by the Apex Court as void and unconstitutional. Article 112 of the Constitution provides, all authorities, whether executive and judicial, in the Republic shall act in aid of the Supreme Court and from this point of view, the Parliament can not make any law by passing the binding effect of the judgment rendered by the Appellate Division. The Supreme Court of India in People's Union For Civil Liberties (PUCL) case held that 'the Legislature has no power to review the decision and set it at naught except by removing the defect which is the cause pointed out by the decision rendered by the Court and if this is permitted, it would sound the death knell of the rule of law'. The Legislature can not overrule or supersede a judgment of the Court except lawfully removing the defect or infirmity pointed out by the Court.
(Writer is a Barrister-at-Law of the Honourable Society of Grays Inn and Advocate, Supreme Court of Bangladesh. abdulqaium85@gmail.com)

Tariff
Add Rate

News Archive

Inside The New Nation

Editorial »

HC verdict is well meaning: Hospitals must appreciate


THE High Court ordered hospitals and clinics not to hold body of a deceased if his or her family fails to immediately pay the medical bill to release the body. It has also asked the Health Secretary and the Director General of the Directorate of Health Services to issue a ...

International »

Putin, Assad for political solution to Syria`s conflict


Reuters, Moscow  :Russian President Vladimir Putin hosted Syrian leader Bashar al-Assad to talk about the need to move from military operations to the search for a political solution to Syria's conflict, the Kremlin said on Tuesday.Russia is actively trying to build an international consensus around a peace deal for Syria, ...

Sports »

A scene from the opening ceremony of the Omicon Group 43rd National A Chess Championship held at Bangladesh Chess Federation hall-room on Tuesday.


Sports »

Sharapova named in India luxury housing fraud probe


AFP, New Delhi :Five-time Grand Slam champion Maria Sharapova is under investigation in India for cheating and criminal conspiracy after the collapse of a luxury housing project that she endorsed, police and a lawyer said Tuesday.The firm behind the development is alleged to have taken millions of dollars from homebuyers ...

Entertainment »

Janhvi dazzles at IFFI in ethnic wear


Janhvi Kapoor who is all set mark her Bollywood debut with Karan Johar’s Dhadak opposite Ishaan Khatter makes a dazzling entry at 48th IFFI 2017 in Goa. Janhvi was accompanied by her mother Sridevi and father Boney Kapoor. Janhvi looked elegant wearing Anamika Khanna lehenga choli. It is probably Janhvi’s ...

City »

Uphold image of Armed Forces: President


President M Abdul Hamid on Tuesday asked the members of Armed Forces to uphold their image at national and international levels by ensuing utmost professionalism. "Uphold the image of the armed forces . . . Help continue the country's ongoing development trend in the days to come," President's Press Secretary ...

Editorial »

Use of toxic tannery wastes in poultry feed


MEDIA reports said an increasing number of poultry feed mills using dangerously toxic tannery wastes laced with poisonous chemicals as raw materials remain the biggest threat to public health. They are moreover flouting is a ban of the High Court for producing and marketing the toxic feed for animals which ...

International »

Putin plan to rejuvenate Russian politics makes slow progress


Reuters, Moscow :Poised to run for a fourth term, President Vladimir Putin has started clearing out the old Russian political elite and says he's bringing in young people with "fire in their eyes."But a Reuters analysis shows that he has made limited progress so far.In the run up to March ...

Sports »

Participants run during the Delhi Half Marathon in New Delhi, India on Sunday. Ethiopia's Birhanu Legese and Almaz Ayana won the men's and women's elite categories, respectively.


Entertainment »

Bollywood congratulates Manushi Chillar on winning Miss World crown


After a wait of 17 long years, Indian model Manushi Chhillar has won the Miss World crown. Since yesterday’s announcement, many Bollywood celebs and public figures have congratulated her on winning the prestigious event. Here are some endearing messages from Bollywood celebs: The Megastar of Bollywood Amitabh Bachchan congratulated Manushi ...

Entertainment »

Runa Khan coming with her first movie


Sheikh Arif Bulbon :Most of her colleagues always appreciate the acting of Runa Khan. There is no other alternative or choice of her in TV plays. So she has acceptability among the directors. Viewers also like her acting. Runa will entertain the viewers by virtue of her acting skill with ...

City »

BNP Chairperson Begum Khaleda Zia cutting cake marking birthday of BNP Senior Vice-Chairman Tarique Rahman at her Gulshan office in the city on the early hours of Monday.


National »

GAFFARGAON: Vice-Chairman of the Central Committee of Muktijodha Sanghati Parishad Major (Retd.) Md Rezaul Karim, a veteran freedom fighter and an Awami League leader addressing a meeting on his participation in the coming National Election as a candidate from Awami League in the election area Mymensingh-10 (Gaffargaon & Pagla PS) Primary School field, Gaffargaon on Friday. Among others, freedom fighter Mofazzal Hossain, Auditor (retd.) Alhaj Abdul Karim and Ex Ward Member Saiful Islam also spoke in the meeting at Charalgi (Nidiar Char) .


Editorial »

Higher production capacity for power plants


THE state-owned power plants can't generate electricity to a minimum of their stated capacity as they lack improved technology, besides management failure to achieve the highest output as per a report in The New Nation on Sunday. The report quoting Bangladesh Power Development Board (BPDB) said its power plants can ...

International »

Hariri announces return to Lebanon as crisis simmers


AP, Paris :Lebanon's Prime Minister Saad Hariri said he will return home in the coming days from where he will declare a political stance for the first time since making a strange resignation announcement from Saudi Arabia that unleashed fears of a crisis in Lebanon.Hariri and his family met Saturday ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news