Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Thursday, February 22, 2018 11:22:40 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter
BREAKING NEWS:

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 »

Ekushey tells us to be free and fearless against injustice


THE Nation celebrates 'Amar Ekushey' today with due solemnity and colourful festivities to remember the Martyrs of the 1952 Language Movement. It is a landmark occasion and a day of awakening in the history of Bengali people that gave us the clear realization that we have our own language and ...

Cricket »

Captain of Bangladesh National Cricket (ODI) team Mashrafe Bin Mortaza handing over a crest of honour to Hafiz Yasin Arafat at the Bashundhara International Convention Centre in the city recently. Yasin Arafat became Hafiz-e-Quran in 86 days. He was a student of Tanjimul Ummah Hifz Madrasah of Cox's Bazar. Ahlul Huffaz Foundation Bangladesh arranged the reception programme.


Sports »

Medalists in the ice dance, free dance figure skating (from left) : Gabriella Papadakis and Guillaume Cizeron, of France (silver), Tessa Virtue and Scott Moir of Canada (gold) and Maia Shibutani and Alex Shibutani of the United States (bronze) pose during their medals ceremony at the 2018 Winter Olympics in Pyeongchang, South Korea on Tuesday.


International »

Trump backs improved background checks on gun buys


US President Donald Trump signaled support Monday for improving background gun checks amid mounting pressure for reform in the wake of the Florida school shooting, as the accused gunman appeared in court.Nikolas Cruz, charged with killing 17 people, sat silently with his head bowed during a procedural hearing in Fort ...

International »

Nepal wants to deepen ties with China: K P Oli


PTI, Kathmandu : Nepal's new Prime Minister K P Oli has said he wants to deepen ties with China to explore more options and get more leverage in his dealings with India "in keeping with the times". Mr Oli, widely regarded as pro-China, also said he wants to "update" relations with ...

Business & Economy »

M Fakhrul Alam, Managing Director of ONE Bank Limited and Rezaul Islam, General Manager of Bangladesh Bank sign a participatory agreement regarding use of JICA assisted Foreign Direct Investment Promotion Project fund recently. Governor Fazle Kabir, Deputy Governor Abu Hena Moh. Razi Hasan, Executive Director Ahmed Jamal of Bangladesh Bank, chief representatives of JICA Bangladesh office Takatoshi Nishikata and among other were also present on the occasion.


Entertainment »

Inspired by the journey of Deepika and Anushka: Nidhhi Agerwal


Nidhhi Agerwal who hails from Bangalore and is living independently in Mumbai currently believes Deepika and Anushka's journey to the top has inspired her a lot. Just like the other two Bollywood divas, Nidhhi also went through her part of the struggle to make it to Bollywood. The young actress ...

City »

Law enforcers intercepted women leaders and activists of Jatiyatabadi Chhatra Dal when they were going to visit BNP Chairperson Begum Khaleda Zia with fruits at Old Dhaka Central Jail on Tuesday.


Sports »

Medalists in the women's 12.5-kilometer mass start biathlon (from right) Belarus' Darya Domracheva (silver), Slovakia's Anastasiya Kuzmina (gold) and Norway's Tiril Eckhoff (bronze) pose during their medals ceremony at the 2018 Winter Olympics in Pyeongchang, South Korea on Sunday.


Entertainment »

I am very excited about working with Akshay Kumar: Parineeti


Parineeti Chopra, who will be sharing screen space for the first time with Akshay Kumar, says she is excited to work with the superstar in Kesari.The film, being directed by Anurag Singh, will see Akshay essaying the role of Havildar Ishar Singh, while Parineeti plays his wife."(I) am very excited ...

Editorial »

We welcome UK`s removal of ban on direct air cargo


THE UK government has fully withdrawn the two-year-long ban on direct cargo flights from Dhaka to London ending the plight of exporters, particularly garment exporters who were facing difficulty to make emergency shipment of samples and other cargo to buyers within the stipulated time. The British government said it is ...

City »

Buyers flip through the books at a stall of Amar Ekushey Book Fair on Bangla Academy premises in the city on Monday.


International »

Syrian forces to back YPG` in fight against Turkey


Al Jazeera News :The Kurdish YPG fighters claim they have reached a deal to allow Syrian government troops to enter Afrin in the northwestern part of the border town.Nuri Mahmoud, a spokesman for the People's Protection Units (YPG), told Al Jazeera on Monday that they are calling on the Syrian ...

Editorial »

Cleansing operation to stop leakage of question


QUESTION leakage during the ongoing SSC examination showed that the government has no power and the Education Ministry has no control over the corrupt people handling the question papers. So far questions of all 10 tests were openly available around the examination centers in Dhaka city and other places from ...

Sports »

Simidele Adeagbo of Nigeria reacts in the finish area after the final run of the women's skeleton competition at the 2018 Winter Olympics in Pyeongchang, South Korea on 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