IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

   PRESENT:

Mr. Justice Surendra Kumar Sinha, Chief Justice Mr. Justice Md. Abdul Wahhab Miah

Mrs. Justice Nazmun Ara Sultana

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali

Mr. Justice Hasan Foez Siddique

Mr. Justice Mirza Hussain Haider

CIVIL APPEAL NO.06 OF 2017.

(From the judgment and order dated 05.05.2016 passed by the High Court Division in Writ Petition No.9989 of 2014.)

Government of Bangladesh and others: Appellants.

=Versus=

Advocate Asaduzzaman Siddiqui and

others: Respondents. For the Appellants: Mr. Mahbubey Alam, Attorney General,

with Mr. Murad Reza, Additional Attorney General, Mr. Momtaz Uddin Fakir, Additional Attorney General, Mr. Biswajit Debnath, Deputy Attorney General, Mr. Motaher Hossain Sazu, Deputy Attorney General, Mr. Md. Ekramul Hoque, Deputy Attorney General, Mr. Kh. Diliruzzaman, Deputy Attorney General, Mr. Masud Hasan Chowdhury, Deputy Attorney General, Mr. Amit Talukdar, Deputy Attorney General, Mr. Sheikh Saifuzzaman, Assistant Attorney General, Mr. Bashir Ahmed, Assistant Attorney General, Ms. Mahfuza Begum, Assistant Attorney General, instructed by Mr. Haridas Paul, Advocate-on-Record. Mr. Abdul Matin Khasru, As Intervenor, Senior Advocate.

For the Respondents:  Mr. Manzill Murshid, Advocate,

instructed by Mr. M. Ashrafuzzaman Khan, Advocate-on-Record.

As Amici:  Mr. T.H. Khan, Senior Advocate, Dr.

Kamal Hossain, Senior Advocate, Mr. Abdul Wadud Bhuiyan, Senior Advocate, Mr. M. Amirul Islam, Senior Advocate, Mr.Rokanuddin Mahmud, Senior Advocate, Mr. Ajmalul Hossain, Senior Advocate,

Mr. A. J. Mohammad Ali, Senior Advocate, Mr. A.F. Hassan Ariff,

Senior Advocate, Mr. M.I.Farooqui, Senior Advocate, Mr. Fida M. Kamal, Senior Advocate.  

Date of hearing: 8th, 9th , 21st, 22nd, 23rd, 24th, 25th, 28th, 29th, 30th May, 2017

and 1st June, 2017.

Date of Judgment: 3rd July, 2017.

J U D G M E N T

Surendra Kumar Sinha, CJ: “We have upon

us the whole armour of the Constitution and walk henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration.”

The eloquent words quoted above were expressed by Justice Vivian Bose in a speech in 1954. He was one of the Justices, who for the first time took oath and assumed office in the Supreme Court of India on 26th January, 1950. The ‘flaming sword’ that Justice Bose contemplated is in article 142 of Indian constitution for “Enforcement of decrees, order of Supreme Court and orders as to discovery etc.” corresponding to article 104 of our constitution which reads as under:

“The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.”

It empowers this court in exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. No other court has this power. It has conferred the power deliberately on this highest court of the country to stress that obviously the fountain of justice under the constitution is the apex court and on some rare occasions when any enacted law diverts the true course of justice, power is vested in this court and this court alone, to make such orders as are necessary in the interest of justice. This is what the Founders of our constitution intended. This is the trust reposed by the Founding Fathers upon the highest court of the nation.

Similar views have been expressed by a sitting Justice of the Supreme Court of the United States, Justice Stephen Breyer, in his book, ‘The court and the world’ as under:

‘The Founders of our nation believed the constitution would work better if an independent group of Judges – not the President and the Congress – could decide whether the President’s action and the laws enacted by Congress would be consistent with the constitution.’ Similar consideration worked in the minds of Founders of the USA in reposing trust upon the highest court that the people expect Judges to decide matters independently. So, all the time in dispensation of justice, the Judges keep in mind the reason behind reservation of this power upon the highest court only. It is only to be exercised by the Judges of this highest court because they, above all others, were to be trusted; they could not be expected to do wrong. This is/was the faith that the constitution had on the Judges of the highest court of the country with any other group of Judges, administrators, or bureaucrats. The independence of judiciary and the ‘flaming sword’ that Justice Bose contemplated, the fount of justice can be administered freely without any pressure from any corner. Before I deal with the issue, it is necessary to consider at this juncture different aspects of the constitutional law.

The constitution will live only if it is alive in the hearts and minds of the people of a country. A written constitution, should be viewed as a ‘living tree’ though rooted in such factors, is also one whose branches should be allowed to grow over time through a developing common law jurisprudence of that same community’s constitutional morality. This is what observed by W.J. Waluchow, Queen’s University, Kingston, Ontario in a book called “A Common Law Theory of Judicial Review”. The author covered a broad range of disciplines-law, philosophy, political theory, constitutional theory and special interest- in his dissertation about the role of unelected Judges in a democracy- particularly the role of Supreme Court in shaping constitutional policy. The author sought to resolve the impasse over the question of judicial review of written constitution. He described two groups—one group which upheld, and the other, which criticized the Canadian Charter of Rights—he called them the ‘boosters’ and the ‘bashers’. For the ‘boosters’, the rigidity of the constitution was what made it valuable; for ‘bashers’, this was one of the chief ills of a written constitution. The author makes a convincing case of how this enables an approach to constitutionalism that is both authoritative and flexible. He says that the protection of rights must be left to the traditional institutional mechanism, which is necessarily the unelected judiciary.

According to Gwyer, C.J., a broad and liberal spirit should inspire those whose duty is to interpret the constitution; but this does not imply that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying omissions or of correcting supposed errors. A Federal Court will not strengthen, but only derogate from, its position; if it seeks to do anything but declare the law; but it may rightly reflect that a constitution of government is a living and organic thing, which of all instruments have the greatest claim to be construed ut res magis valent quam pareat i.e. it stands for trying to construe a law in a way to make sense, rather than to void it. The  law  should  be  given  effect  rather  than  be destroyed (1939) FCR 18,36(39).

The moot question that raised in this appeal that requires a clear answer from this court is whether the Constitution (Sixteenth Amendment) Act, 2014 has violated the basic structure of the constitution. It is indeed the crux of this appeal. Apparently, this question may look very harmless and straightforward, but in fact it is not that simple issue to answer. Rather the answer to this question involves some immensely complex and unfathomably deep issues and events which have taken place in our political history during the last seven decades (1947

-     2016) in general and during the last four and half decade in particular (1971– 2016). If it has been a simple challenge of a constitutional amendment, it would have been much easier to answer and give a verdict; but since this question has a long and chequered history, the answer should not be a short verdict containing only the core opinion of this Court.

The questions that have been raised in this appeal were surfacing on many occasions in our country but due to uncertainty and instability in our national life, no definitive answers have been given yet. The question which involves one of the fundamental debates common to any democratic polity is: if the removal mechanism of the Judges of the Supreme Court is given upon the Parliament, whether, the independence of the Judiciary will be affected and/or hampered. The first ever modern democracy in the history, the U.S. also went through this similar debate and it took hundreds of years to refine a sound politico-judicial culture which gives stability in exercise of state power. Even after 220 years of the foundation of their Republic, the debate is not over yet. But for the U.S., this unfinished debate does not mean incompleteness or chaos, rather every time they are creatively exploring different options for more coherent, sound and harmonious ways to devise, define and redefine their democratic institutions so that their society becomes more stable and capable of delivering the pledges inscribed in their constitution. This is a creative evolution of a political community which goes ahead with the life of that community with a healthy checks and balances mechanism called trial and error. But history also has some paradoxes. Not all political communities capable of withstanding the unpredictable wave of this creative trial and error in their political life. All cannot withstand this test of time because it is not only strong economy, not only skyscrapers, not only large and long over bridges and bridges that guarantee a country for its stability and flourishment rather, most importantly it requires a “collective political wisdom”.

Most unfortunate country in this world is that which possesses all as have been mentioned earlier but does not possess “collective political wisdom”. What it means by ‘economic prosperity’ for a nation is a relative notion which changes from century to century but what does not ever change is the notion of wisdom on which the invisible structure of the nation is built on. I will come to this point of “collective political wisdom” in later part of this judgment.

Unfortunately, in history often time comes when even the most senior, most veteran and most respected people of the society need reminding of some very basic and obvious facts which form the very ground or foundation of their existence. With all of my humility, may I give a kind reminder to many of my fellow citizens, especially who are in very high and responsible position of the Republic, about a very simple fact that: Bangladesh has a ‘written’ constitution. I have put special emphasis on the word ‘written’ intentionally. This word signifies a quantum leap in the evolution of the socio-political history of the humankind. Before advent of the age of written constitution, the political life of the human community was folk, rustic and truly medieval. The most crucial difference between a medieval kingdom and a modern Republic is that in the former the king is the lawmaker and lawgiver - the king is the Judge

-     the king also is in the charge of the execution. As opposed to that the politicians and political philosophers have constantly thought about establishing a system where the unfettered, despotic and totalitarian power of the King can be put under a “balanced restriction” so that he cannot transgress the limit. This is how the idea of modern constitution has emerged. Modern constitution is essentially a written constitution. A medieval king does not need nor does he care for a constitution, far less a ‘written’ constitution. Therefore, if we give a composite reading of the evolution of the political history of the mankind for last two thousand years, we will see a gradual but constant development in the field of political science. This development, amongst others, was about finding and devising instruments and ways to make the State more stable and flourishing.

And lastly people have devised the idea of having a written constitution. We should ask ourselves a very plain question— why our Forefathers departed from the stage of not having a constitution to having a ‘written’ constitution? The irresistible and obvious answer to this question is our Forefathers wanted to establish a State where exercise of all powers and authority are clearly stated in a sacred inviolable document and whoever exercises whatever powers in the State must not exceed his limit as it is already defined in the constitution. This is what I call a “balanced restriction”. Having a ‘written’ constitution is nothing but having a power to exercise, but 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.

Exercising power under a written constitution is as if working with a jigsaw puzzle. This is a tiling puzzle that requires the assembly of often oddly shaped interlocking and tessellated pieces. Each piece usually has a small part of a picture on it; when complete, a jigsaw puzzle produces a complete picture. The modern State machinery is undoubtedly complex, the separation of power is not absolute, therefore, it often overlaps creating a puzzling situation but through the design of the constitution, this also puts things in an orderly manner so that nothing remains separated or disintegrated forever.

Our country’s name is “People’s Republic of Bangladesh” and this Republic has a ‘written’ constitution. The foregoing paragraphs will help us to understand and appreciate the facts, factors and rationales that have been relied upon for reaching this verdict.

It is the common contention of Mr. Mahbubey Alam, learned Attorney General and Mr. Murad Reza, learned Additional Attorney General that the procedure for removal of the Judges is absolutely a policy decision which is the domain of the Parliament. The verdict by the High Court Division declaring Sixteenth Amendment  ultra vires the constitution is in violation of the principles of the separation of powers and, is therefore, illegitimate. Both of them stress upon the point that an unelected Judge is appointed by the Executive. He does not represent the people, rather he performs his judicial functions, and nothing more. They added that this unelected Judge took the role of a legislature in deciding the policy decision illegally invoking the power under article 102.

All judicial review— all manner of adjudication by courts— is itself an exercise in judicial accountability—accountability to the people who are affected by a Judge’s rulings. The accountability gets evidenced in critical comments on judicial decisions when a Judge behaves as he should be as a moral custodian of the constitution. Judges perform their functions — enhance the sprit of constitutionalism. They should realize the solemnity and importance of the functions reposed upon them by the constitution. “The ideal judge of today, if he is to be a constitutional mentor, must move around, in and outside court, with the constitution in his pocket, like the priest who is never without the Bible (or the Bhagavad Gita). Because, the more you read the provisions of our constitution, the more you get to know of how to apply its provisions to present-day problems.” (Before Memory Fades-Fali S. Nariman).

In 1776, America’s Founders gathered in Philadelphia to draft the Declaration of Independence, which dissolved the political ties that had bound the American people to Great Britain. A new nation was thus born, free and independent, the United States of America. Eleven years later, in 1887, after American Patriots had won the independence on the battlefield, many of them who had met earlier in Philadelphia, plus others, met there again to draft a plan for governing the new nation, the constitution of the United States. In 1789, after the plan had been ratified, the new government was established. Together, the Declaration and the Constitution are America’s founding documents. In the Declaration the Founders outlined their moral vision and the government it implied. Addressing ‘a candid world’ the Founders’ immediate aim in the Declaration was to justify their decision to declare independence. Toward that end, they set forth a theory of legitimate government, then demonstrated how far British rule had strayed from that ideal. The Declaration’s seminal passage opens with perhaps the most important line in the document. “We hold these Truths to be self-evident.” Grounded on that reason, ‘self-evident’ truths invoke the long tradition of natural law, which holds that there is a higher law, of right and wrong from which to derive human law and against which criticize that law at any time. (The Declaration of Independence and the Constitution of the United States of America).

Once a very relevant and interesting debate arose as to whether America is a fully sovereign nation, or merely a confederation of sovereign States allied for the purposes of common defense and foreign policy, did not begin with the Civil War, or, for that matter, with the quixotic challenge to American unity mounted by paleo-libertarians and neo- Confederates in more recent years, but goes back to the earliest years under the constitution. As Henry

Adams writes in his massive History of the United States of America during the Administrations of Thomas Jefferson, in the period preceding the election of Jefferson in 1800, Americans, particularly in the South and New England, were convulsed over the question “whether the nature of the United States was single or multiple, whether they were a nation or a league.”

Seeing the issue stated as baldly as that, and realizing that even back then people were asserting that the United States was nothing more than a “league,” instantly would bring the reader to the opening words of the constitution: “We the People of the United States …” “We the People” clearly signifies that the United States are one people, i.e., one nation. If the Founding generation had thought of themselves as an alliance of separate nations they would probably have described themselves as “We the People of the United States.” But they did not do that.

The same can be said for another key phrase in the Constitution:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; …

“Supreme Law of the Land” conveys the idea that this is one land, one country, not a league of separate countries.

Jefferson said, ‘We the people’ wrote the constitution, and only ‘we the people’ – that is, the legislature – had the right to interpret it. (Cited in Beveridge, Life of John Marshall, 3: 605–606). Kentucky Republican John Breckenridge, expanding Jefferson’s argument to the Senate commended that constitution had ‘intended a separation of the power vested in the three great departments, giving to each exclusive authority on the subjects committed to each’. The Legislature had the exclusive right to interpret the constitution as regards the law-making process and the Judges were bound to execute the laws they made. Let gentlemen consider well before they insist on a power in the judiciary which places the

Legislature at their feet. (Annals, 7th Congress, 1st Session, 179-180).

American Congress repealed the Judiciary Act, 1801 and replaced it by a new Judiciary Act, 1802, which effectively dismantled the Federal Judiciary and closed the Supreme Court for two years. The new law reset the number of circuit courts at six, eliminated more than a dozen judgeships, restored the number of Supreme Court Justices to six, and forced the justices to resume ‘riding the circuit’ to distant district courts. The Act eliminated the summer session of the Supreme Court. It would meet only two weeks, once a year instead of twice a year. By scattering the justices around the country the rest of the year, the new law would prevent Chief Justice Marshall from organising his colleagues into a powerful, co-hesive third branch of government. (John Marshall, P.196-7)

Jefferson, the President of America charged the Marbury verdict (Marbury V. Madison, 5 US (1 Cranch) 137 (1803) by saying that this is a decision by an unelected body like Supreme Court contained ‘the germ of dissolution of our federal government’. He called the court ‘irresponsible... advancing its noise-less step like a thief over the field of jurisdiction, until all such be usurped from the states’ after the judgment in Marbury. (Thomas Jefferson to Charles Hammond, August 18, 1821, Kaminski, Quotable Jefferson, 260-261). Thus, America’s Second President Jefferson questioned the finality of the court’s decision.

When Marshall returned to Washington, eleven of the Judges ousted by the Judiciary Act, 1802 asked congress for reinstatement and payment of past salaries. Their dismissals, they claimed, had violated their constitutional rights as Federal Judges to ‘hold their offices during good behaviour and ... receive...compensation.’ At Jefferson’s direction the Republican majority in congress rejected the demand, declaring congress, not courts, sole Judge of what was and was not constitutional. ‘Let them do. If the Supreme Court shall arrogate this power (claim of the Judges) to themselves and declare our law to be unconstitutional, it will then behoove us to act. Our duty is clear’. (Annals of Congress, II: 434-436). Two weeks later after hearing William Marbury’s Commission as a justice of the peace, John Marshall pronounced the most important decision in Supreme Court’s history.

Marshall effectively amended the constitution by assuming the power of judicial review for the Supreme Court, allowing it to void an Act of Congress it deemed unconstitutional. Nowhere in the American constitution had the Framers written ‘that a law repugnant to the constitution is void’ or given Supreme Court the power to void a law. In Marbury, the Supreme Court declared both the President and Secretary of State guilty of violating the constitution, and, for the first time, it voided part of an Act of Congress (John Marshall – P-210).

President Jefferson claimed in Marbury ‘Nothing in the constitution has given them the right.... to decide what laws are constitutional and what not.’ Such powers ‘would make judiciary a despotic branch.’ (Thomas Jefferson to Abigail Adams, September 11, 1804, 12:162).

In 1803, Chief Justice Marshall speaking for the constitution of the United States said, “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” After Marbury, the Supreme Court established it as supreme arbiter of the constitution and American laws and the Federal judiciary as the third co-equal branch of the Federal Government alongside the Executive and Legislative branches. 

Before the independence of India and Pakistan, there were three Round Table Conferences in England for the solution of Indian Independence problem. The conferences were followed by a White Paper which contained the proposals of the British government for an Indian constitution. After these proposals had been considered by a Joint Select Committee, a Bill based on the Joint Committee’s recommendations was introduced in the British Parliament in December, 1934, and after prolonged debate, it became the

Government of India Act, 1935, which came into force on 1st April, 1937 as a legal framework for a constitution of India. For the first time the Act introduced  a  Federal  form  of  government  and  it conferred full provincial autonomy on the Provinces subject to certain ‘safeguards’. As a corollary to a federal constitution, the Act established a Federal Court in India. Under the Act, provincial elections were held in 1937.

On 14th August, Pakistan and on 15th August, 1947 India got independence. On 29th August, 1947, the Indian Constituent Assembly appointed a drafting committee which presented a draft constitution in February, 1948. The Indian constitution came into force on 26th January, 1950. The other chapter about formation of Constituent Assembly and the drafting of constitution were plagued by power struggles by military and bureaucrats. (H.M. Seervai – Constitutional Law of India, Vol-1 P-9)

On 16th October, 1951 Liaquat Ali Khan, the first Prime Minister of Pakistan was assassinated. “A tussle for grabbing power among persons who held

positions of advantage in the Government thereupon ensued and under its weight the foundation of the State started quivering’ (Asma Jilani V. Government of Punjab, PLD 1972 SC 139). On 24th October, 1954 Ghulam Muhammad, hand picked Governor General by a proclamation dissolved Constituent Assembly and placed armed guards outside the Assembly Hall (ibid). In accordance with the opinion given by the Federal Court a new Constituent Assembly was elected and a constitution ultimately came into force on 23rd March, 1956. In the Constituent Assembly, Shiekh Mujibur Rahman, a member of the Constituent Assembly, made a historic speech pinpointing the discriminatory treatment exercised by the central government as under:

“Sir, I am only pointing it out to you. Sir, it is like this there are two hands to the body of Pakistan. One is West Pakistan and the other is East Pakistan. They are making one hand strong and the other hand weak. Sir, this policy is wrong and will ruin the country. In the Central Government Services, those who form 56 per cent population are not getting 5 per cent share. The East Bengal people are educated but they are not getting their share. Sir we do not blame the West Pakistan people. In fact we want autonomy for them also. If East Pakistan gets autonomy, the West Pakistan people will also get autonomy. We blame the ruling junta. These jagirdars, zaminders, these big landlords and ruling junta of West Pakistan has suppressed the people’s opinion of West Pakistan. They are so much suppressed, they cannot cry, they cannot demand, but the people of East Pakistan are politically conscious. They challenge anybody and everybody. They challenge Mr. Fazlul Haq, Mr. Suhrawardy, Moulana Bhashani; they challenge their leaders. They tell their leaders “You have done this wrong and we will not vote for you, but they have been suppressed, persecuted and they have been economically ruined. They have no land;

Sir, I have just come from East Pakistan and know the mind of the people there. I know that they have rejected this un- Islamic, undemocratic and dictorial Constitution, and it cannot be accepted by the people of Pakistan, Particularly the people of East Pakistan. These people are thinking that they will sit in Karachi like Mr. Pathar he will never go back to East Pakistan; he is domiciled here. So these people are also thinking that they will earn some money and make a house here. They

cannot go back because they are going against the demand of full regional autonomy which is the demand of the people. You can kill us, you can jail us. Sometimes we hear that our lives are in danger, but we are not afraid. We have been elected by the people on the basis of 21- point Programme on the basis of regional autonomy. They can betray but we cannot.”

(Quoted from the written argument of Attorney General)

Iskander Mirza did not allow a National Assembly to be formed under the constitution of 1956, assumed power and by Proclamation dated 7th October, 1958, abrogated the constitution, dissolved the National and Provincial Assemblies, imposed Martial Law throughout the country and General Muhammad Ayub Khan was appointed as Commander-in-Chief and Chief- Martial-Law Administrator. Iskander Mirza ultimately could not retain power and he was overthrown by Muhammad Ayub Khan and the country was put under Martial Law. Muhammad Ayub Khan was elected as President in 1965 by introducing a peculiar type of democracy, under the name ‘Basic Democracy’. The people knew that he became the President through a rigged election. In 1968, he was observing his so called decade of development but the common citizen was not touched by it, and thus very soon he saw his authority to govern was being vigorously challenged. The agitation of the people, coupled with the mass upsurge of 1969, reached to such an extent and the disturbances broken out throughout the provinces of Pakistan were so serious that it was not possible on his part to maintain law and order situation in the country. Ultimately, he could not continue at the helm of the affairs and handed over the power to Muhammad Yahya Khan, as Commander-in-Chief. He took oath pledging that he would be faithful to the constitution of 1962. Within a very short time of taking his oath, he again issued Proclamation on 26th March, 1969, abrogated the constitution, dissolved the National and Provincial Assemblies and imposed Martial Law throughout the country.

The next episode is very pathetic to the citizens of this country. Under the Legal Frame Work, Muhammad Yahya Khan ultimately gave election which was held in December, 1970. It was beyond imagination of the Pakistani Rulers, Awami League headed by Shiekh Mujibur Rahman could secure a clear majority in the National Assembly and Provincial Assembly of East Pakistan. This election was held for the purpose of framing a constitution for the entire country. Muhammad Yahya Khan ultimately did not hand over power to the elected majority leader of the entire Pakistan, Shiekh Mujibur Rahman; rather he waged a war against unarmed and innocent people and committed the most heinous genocide in the history of the modern world. He postponed the holding of National Assembly and massacred innumerable number of helpless Bangalees that led to the declaration of independence by Shiekh Mujibur Rahman on 26th March, 1971.

The liberation struggle continued for nine months and with the sacrifice of three million martyrs and honour of hundred thousand mothers and

sisters, we achieved our victory on 16th December, 1971.

In his written argument, the learned Attorney General has elaborately quoted the speeches of Bangabandu Shiekh Mujibur Rahman, Father of the Nation, given on 10th April, 1972 before the Constituent Assembly of Bangladesh - he also elaborately quoted from the speeches of Dr. Kamal Hossain, Syed Nazrul Islam, M. Munsur Ali, Asaduzzaman Khan, A.K.M. Kamruzzaman and Taj Uddin Ahmed. After a detailed discussion, debate and elaboration on many important points by the members, the constitution was adopted by the Constituent Assembly on 4th November, 1972 and it was published in the official gazette on 14th December, 1972.

In the preceding paragraphs, I have purposefully given a relatively detailed description of the trajectory of our combined political struggle throughout the Pakistani era which culminated in the establishment of a sovereign State of Bangladesh. Very unique as it may sound, yet it is the historical fact that this nation is probably the only nation on the face of the earth who fought a most gruesome battle to achieve a democratic constitution. India and Pakistan though born on (15th and 14th August 1947 respectively) pursued diagonally opposite political course to run their countries. Within less than two years India adopted its constitution in 1949, whereas, Pakistan adopted its first constitution after nine years of its independence in 1956. And this nine years were full of political treachery, horse-trading, usurping power by the individuals sitting at the top of the political hierarchy, killing of Prime Minister, arbitrarily dissolving Constituent Assembly so on and so forth. But this was not the end there. From 1947 to 1971 Pakistan adopted two constitutions, two Martial Laws, a peculiar political system called basic democracy and ruled by treacherous and ruthless rulers like Iskandar Mirza, Ayub Khan, Yahya Khan. In addition to a malignant political regime in Pakistan as stated above, that system was also extremely oppressive, there were inhuman economic disparity in the two wings of the country, rampant abuse of power by the law and order

Thus, if we are to summarize the long and dark two and half decades of struggle against the Pakistani rulers— we come to an unavoidable conclusion that as nation, we went through the toughest struggle to achieve a constitution. In fact, throughout the Pakistani era, all our struggles were aimed at a single purpose and that purpose was to achieve a democratic constitution. The Pakistani framework was unable to give this, and hence we “through a historic struggle for national liberation, established the independent, sovereign People's Republic of Bangladesh”. This is how I see the constitution of Bangladesh. The constitution that our Founding Fathers adopted in 1972 was not a spark of a moment— it was not an accidental achievement, rather it was the result of a prolonged and deep contemplation of this nation germinated over centuries. And this document is an excellent example of our “collective political wisdom.”

 The history and ethos of our independence and those of India, USA, South Africa and other countries of the globe are completely different. The independence of India, Pakistan, South Africa, Zimbabwe, Sri Lanka, Burma, Singapore, Malaysia and many other countries were achieved largely through negotiations. The independence of Bangladesh and that of United State of America (USA) were achieved through war. So, the constitution of each country has to be interpreted in the light of her own historical background and commitment of that struggle and sacrifices. This attitude towards interpretation is not optional rather mandatory, because our constitution emerged with a pledge, with a sacred promise made to the martyrs who laid down their lives for a “purpose”. While interpreting the constitution of Bangladesh, first and foremost, this purpose must be kept in mind and it must also guide the reasons and rationale of the court in giving meaning to any provision of the constitution.

The meaning of ‘we the people’ mentioned in the beginning of the preamble of the constitution of Bangladesh has a different meaning than that of the same phrase that has been used in the preamble of the Indian and American constitution and these constitutions have to be interpreted in that context. One may pose a question as to the meaning of the term of the constitution. Constitution may be defined as to body of rules and maxims in accordance with which the power sovereignty are habitually exercised. A constitution is valuable in proportion as it is suited to the circumstances, desires, and aspirations of the people, and as it contains within itself the elements of stability, permanence, and security against disorder and revolution. Ultimately it is valuable only to the extent that it is recognised and can be enforced. Although every State may be said in some sense to have a constitution, the term constitutional government is only applied to those whose fundamental rules or maxims not only applied to those shall be chosen or designated to whom the exercise of sovereign powers shall be confined, but also impose efficient restraints on the exercise for the purpose of protecting individual rights and

A constitution of a country is the supreme legal framework by which the State is organsied and run. To comprehend about a constitution of a country it is necessary to keep in mind, what were the objects which the Framers of the constitution set out to achieve through this document? What were the modest will to which the framers turned? What were the pitfalls the Framers tried to avoid?

At this juncture, I want to deal with the aspects of American’s constitution. In its preamble, it is stated “We the people of the United States,... do ordain and establish this Constitution...” These words did more than promise popular self-governance. They also embodied and enacted it— like the phrase “I do” in an exchange of wedding vows and ‘I accept’ in a contract — the Preamble’s words actually performed the very thing they described. Thus the Founders’ ‘Constitution’ was not merely a text but a deed-a constituting – ‘We the People do Ordain.’ This was the most democratic deed the world had ever seen in 1780s. In a Grand Parade held on July 4, 1788, in Philadelphia, Wilson delivered and argued for vote on the supreme law under which the people and their posterity would govern. By that date Americans had said ‘we do’ so as to guarantee that the constitution would go into effect. Writing as Publius in ‘The Federalist No.84, Alexander Hamilton explained in New York that ‘here, in strictness, the people …… retain everything (and) have no need of particular reservations. ‘WE THE PEOPLE ….., to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution…….’ Here is a (clear) recognition of ‘popular rights’. By ‘popular rights’ Publius meant rights of the people qua sovereign, including their right to revise what they had created. Following Virginia lead, new York used its ratification instrument to underscore its understanding of the Preamble’s principles; ‘All power is originally vested in, and consequently derived from, the people …… The powers of government

These assorted speeches, essays, and ratification texts emphasizing the ‘popular rights’ that ‘the people’ ‘retain’ and ‘reserve’ and may ‘resume’, and ‘resume’ exemplified what the First Congress had centrally in mind in 1789 when it proposed certain amendments as part of a general bill of rights. (The Bill of Rights; Creation and Reconstruction).

From a twenty-first-century perspective, the idea that the constitution was truly established by ‘the people’ might seem a bad joke. What about slaves and freeborn women? Later generations of the American people had surged through the Preamble’s portal and widened its gate. Like constitution, amendments are not just words but deeds-flesh-and-blood struggles to redeem America’s promise while making amends for some of the sins of Founders. In both words and deeds,

America’s amendments have included many of the groups initially excluded at the Founding. In the wake of the Civil War, ‘We the people’ abolished slavery in the Thirteenth Amendment, promised equal citizenship to all Americans in the Fourteenth Amendment, and extended the vote to black men in the Fifteenth Amendment. A half-century later, they guaranteed the right of women suffrage in the Nineteenth Amendment, and during a still later civil-rights movement, they freed the federal election process from poll taxes and secured the vote for young adults in the Twenty- fourth and Twenty-sixth Amendments, respectively. No amendment has ever back on prior voting rights or rights of equal inclusion.

Previously excluded groups have played leading roles in the amendment process itself, even as amendments have promised these groups additional political rights. Black voters, already enfranchised in many States, propelled the Federal Fifteenth Amendment forward; women voters helped birth the Nineteenth; and the poor and the young spearheaded movements to secure their own constitutionally protected suffrage. Through these dramatic acts and texts of amendment, ‘We the People’ of later eras have breathed new life into the Preamble’s old prose. (America’s Constitution, Akhil Reed Amar).

Mr. Murad Reza tried to persuade the court that by judicial pronouncement in Dred Scott V. Sandford blacks became citizens of the United States. His submission is partially correct, but if the American constitutional history is looked into it was not so easy to comprehend. Nothing was in the original constitution aimed to eliminate slavery, even in the long run. No clause in the constitution declared that “slavery shall cease to exist by July 4, 1876, and Congress shall have power to legislate toward this end.” Article I temporarily barred Congress from using its otherwise plenary power over immigration and international trade to end the importation of African and Caribbean slaves. Not until 1808 Congress was not permitted to stop the inflow of slave ships; even then, Congress would be under no obligation to act. Another clause of Article I, regulating congressional apportionment, gave States perverse incentives to maintain and even expand slavery. If a State freed its slaves and the freedmen then moved away, the State might actually lose Horse seats; conversely, if it imported or bred more slaves, it could increase its congressional clout.

Article II likewise handed slave States extra seats in the Electoral College, giving the South a sizable head start in presidential elections. Presidents inclined toward slavery could in turn be expected to nominate proslavery candidates. Article III vested all Federal Courts with judicial power of the United States. Article IV obliged free states to send fugitive slaves back to slavery, in contravention of background choice-of-law rules and general principles of comity. That article also imposed no immediate or long-run constitutional restrictions on slaveholding in Federal territory. Article V gave the international slave trade temporary immunity from constitutional amendment, in seeming violation of the people’s inalienable right to amend at any time, and came close to handing slave States an absolute veto over all future constitutional modifications under that article.

In the near term, such compromises made possible a continental union of North and South that provided bountiful benefits to freeborn Americans. But in the long run, the Founders’ failure to put slavery on a path of ultimate extinction would lead to massive military conflict on American soil-the very sort of conflict whose avoidance was literally the primary purpose of the constitution of 1788. (America’s Constitution, ibid)

“We the People of the united States ….” United how? When? Few questions have cast a longer shadow across American history. Jefferson Davis had one set of answers, Abraham Lincoln had another. And the war came. “The Preamble began the proposed constitution; article VII ended it. The Preamble said that Americans would ‘establish this constitution’; article VII said how the people ‘would establish this constitution”. The preamble said this deed would be done by ‘the People’; article VII clarified that the people would act via specially elected ‘Conventions’. The  Preamble  invoked  the  people  of  ‘the  United States’; Article VII defined what that phrase meant both before and after the act of constitution. The preamble consisted of a single sentence; so did article VII. The conspicuous complementarily of these two sentences suggests that they might have been placed side by side, but the Philadelphia architects preferred instead to erect them at opposite ends of the grand edifice so that both the documents’ front portal and rear portico would project the message of popular sovereignty, American style.(Ibid)

The preamble promised Americans more direct democratic participation in ordaining their supreme law than anyone had ever seen on a continental scale. Echoing the Preamble’s invocation of ‘the People’, article I promised something similar for ordinary law making. The House of Representatives would be elected biennially ‘by the People of the several States’. By 1787 American judiciary had began to rise in repute. The constitution guaranteed the President’s rights to hire and fire his cabinet subordinates but failed to guarantee any Supreme Court role in the appointment or removal of lower court Judges. While each congressional house could cleanse itself by expelling members who misbehaved, neither the Supreme Court nor the judiciary as a whole enjoyed comparable inherent power to clean the judicial house. (Raoul Berger, Impeachment; the Constitutional Problems, (1974), 127-34).)

Congress could impeach and remove Judges, yet Judges lacked counterbalancing authority to oust congressmen. In all these ways, implicating the essential power to fill up and empty out the branches, the judiciary was not just last but least. Article III featured a ‘court’ that it called ‘supreme’, but this adjective hardly meant that the judiciary outranked the Legislature and Executive. Rather, the word primarily addressed the hierarchy within the judiciary itself, placing America’s highest court above any lower Federal Courts that might be created. Thus each of article III’s first two sentences juxtaposed the ‘Supreme Court’ against other ‘inferior’ Federal Courts, as did earlier language in article I empowering Congress to ‘constitute Tribunals inferior to the Supreme Court”. Yet, even this ‘Supreme Court’ was given rather few constitutional tools to keep its underlings in line. (Ibid)

Article III thus offered the Federal Judiciary a uniquely protective package. “Good Behaviour” now meant what it said: A Federal Judge could be ousted from office only if he misbehaved, with adjudication of misbehavior taking place in a judicial forum.(Ibid)

In respect of Indian constitution, it is necessary to look into its legal Frame Work, that is to say, what were the objects which the Framers of the Constitution set out to achieve in their Draft Constitution? What were the models to which they turned? What were the pitfalls they tried to avoid? Dr. Ambedkar, the Chairman of the drafting committee, answered some of these questions when he moved that the Constituent Assembly should take the Draft Constitution into consideration. Indian constitution adopted the system of parliamentary form in preference to the presidential system adopted in the United States. This was the result of course which political struggle had taken place in India. Although the Indian constitution derives its legal authority from the Indian Independence Act, 1947, which conferred on the Constituent Assembly the power to frame the constitution, the Founders were influenced by the result of struggle for political freedom. Section 102 of the Government of India Act, 1935 gave statutory recognition to the fact that in times of war the Federal Government should have power to legislate even on subjects of the exclusive provincial legislation. Two other characteristic features of Indian constitution may be noticed here, and both of them have been taken over from the Government of India Act, 1935. The first relates to the legislative powers of the Chief Executive on the Union and in the States, and the second relates to the failure of the constitutional machinery. Section 42 of the Government of India Act, 1935, empowered the Governor General to promulgate Ordinances during the recess of the Federal legislature; and Section 88 of that Act empowered the Governor to promulgate

India was declared to be a Union of States. Legislative powers were divided between the Parliament of the Union and the Legislative Assemblies of each State. The executive powers of the Union were vested in the President acting in accordance with the advice of the Council of Ministers headed by the Prime Minister and accountable to the lower house of Parliament, the House of the People or the Lok Sabha. The executive powers of each State were vested in the Governor acting on the advice of the Council of Ministers headed by the Chief Minister accountable to the Legislative Assembly.

Article 124 of the constitution established the Supreme  Court  of  India  consisting  of  the  Chief Justice and other Judges. By article 131 the Supreme Court was given original and exclusive jurisdiction in any dispute between the government of India and State or between States involving any question of law or fact on which the existence of the extent of a legal right depends. By article 132, an appeal to the Supreme Court from a High Court lies in any civil, criminal,  or  other  proceedings  if  a  High  Court certifies that a substantial question of law as to the interpretation of the constitution is involved. By article 133 civil and criminal appeals lie from any decision of the High Court on a question of law, and with leave. In addition, by article 136 the Supreme Court may grant special leave to appeal from any decision ‘in any cause or matter passed or made by any court or tribunal in the territory of India’. By article 144, all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court. Thus, the Supreme Court was given extensive powers to interfere in any proceedings to secure justice.

The preamble of Indian constitution was amended in 1976, which affirms the resolve of the people of India to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens Justice, social economic and political, liberty of thought, expression, belief, faith and worship and equality of status and opportunity. Article 32 confers on every citizen the right to move the Supreme Court for the enforcement of fundamental rights.

The Supreme Court of India has been very innovative in the construction of the ambit of the Fundamental Rights. Article 21 of the constitution, which protects life and liberty ‘except according to procedures established by law’ was held to confer the right to legal aid which the court ordered the States to provide (Khatri V. State of Bihar, (1981) 3 SCR 145).

So far as the constitution of the People’s Republic of Bangladesh is concerned, I have already mentioned the historical background of our constitution and the preamble which aptly contains the reflection of the spirit of the national liberation struggle and the sacrifice of the lives of the people. In the preamble it is stated; ‘We, the people of Bangladesh, having proclaimed our independence …. through a historic struggle established independent, sovereign ….. which inspired our heroic people to dedicate themselves to and our brave martyrs to sacrifice lives in, the liberation struggle.’

In the preamble it also indicated the future principles of the State that ‘through a democratic process a socialist society, free from exploitation - a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social dignity, will be secured for all citizens.’ (emphasis supplied) It was also declared to safeguard, protect and defend the constitution and maintain the supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom.

 This preamble is completely different from those of other countries. I mentioned earlier that there is a bit similarity as regards the independence of our county with USA. Though in the preamble we notice the expression ‘We the people’ in other constitutions as well, but the connotation and denotation of the word ‘We’ is not same in all documents.

American independence was also achieved by sacrifice of lives, but in that preamble no such details have been mentioned as in ours. It simply mentioned “we, the people of the United States, in order to form a more perfect union, establish justice, insure, domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of Liberty to ourselves and our Prosperity, do ordain and establish this Constitution for the United States of America.”

The first word of the first sentence of the preamble of our constitution of the People’s Republic of Bangladesh is “WE”. The strength of a nation lies in this word and spirit of “WE”. This ‘weness’ is the key to nation building. A community remains a community unless all those who belong to the community can assimilate themselves in this mysterious chemistry of ‘weness’, the moment they are elevated to this stage they become a ‘nation’. And our Founding Fathers very rightfully understood, realized and recognised this quintessential element of nation building and this is why they wrote the first sentence of the constitution “We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and, through a historic struggle for national liberation, established the independent, sovereign People’s Republic of Bangladesh.”

These words mean that people are the source of all supreme power; People are the true achiever of the sovereignty and hence the constitution. The members of the Constituent Assembly were all people’s representatives. The preamble, therefore, indicates that the legal basis of our constitution is the people-the ultimate source of all power.

In the history of military no war was ever won with so small and meagre supply of arms, with so small numbers of trained fighters, as the people of Bangladesh did in 1971. We fought a ferocious military force equipped with all modern weaponry and trained personnel - we fought against them with courage and valour - what really gave us the advantage over them? Were it arms and weapon only? The answer is No. It was the stupendous courage of ‘We the people’ of this land - it was the readiness for supreme sacrifice if necessary and unsurmountable feeling of commonness for fellow people of this land that made us unconquerable by the Pakistani military power. And this unparalleled feeling for commonness has been rightly reflected in the very first word of our supreme social document - the constitution.

Our Founding Fathers keeping in mind of our struggle against the tyrannical rulers gave all powers of the Republic upon the people under article 7, which runs:

“7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the

people shall be effected only under, and by the authority of, this Constitution. (2)  This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.” Thus, if we carefully look into the philosophy of our political existence we unfailingly see that the citizens of our country are woven by a common thread called ‘we the people’. And the solemn expression of the will of the people is the supreme law of the Republic, i.e. the constitution. The triumph in 1971 was obvious because the feeling of ‘weness’ was unbreakable. There were numerous conspiracies to break this unity but the enemy utterly failed to inject even the slightest shred of doubt among us. Now that we are living in a free, independent and sovereign country, however, we are indulging into arrogance and ignorance which threaten the very precious tie and thread of ‘we’.

No nation - no country is made of or by one person. If we want to truly live up to the dream of Sonar Bangla as advocated by our father of the nation, we must keep ourselves free from this suicidal ambition and addiction of ‘I’ness. That only one person or one man did all this and etc. If we look at the example from USA’s town planning; they recognised the person who worked for their town planning. For abolition of slavery, Mary Todd, wife of 16th President Abraham Lincoln, got recognition. For the establishment of women rights there are other persons who got the recognition and they also remember with great acknowledgment of four Army Generals. But in our country a disease has infected us and the name of that disease is ‘myopic politicization’. This is a virus and unfortunately this has infected our political culture to such a length that many of our policy makers now are hardly able to see or envision a future meant for a nation, not for a person. Due to this rotting disease, they have personified each and everything. For their narrow and parochial party interest they have established a fake and ‘pseudo democracy’ taking the shameful unfair advantage of our constitution - a constitution written with the blood ink of our martyrs in 1971.

We must get rid of this obnoxious ‘our men’ doctrine and suicidal ‘I alone’ attitude. Not party allegiance or money but merit alone should be given the highest priority at all levels of national life and institution building. Person who is making tremendous sacrifice and humongous contribution for development and social progress must be recognised. And in doing so we must only see his or her contribution to this society not to his political colour or inclination. If we cannot get ourselves out of this narrow parochialism and cannot overcome the greed of party nepotisms, then this will be the biggest assault to the very foundation of our liberation war- and the rock solid idea of ‘We’ which brought us the long cherished independence and to immortalize this momentum, the word ‘we’ have been put in the very first sentence of our constitution as the very first word of this sagacious document. Lamer, CJ. of Canada once described preamble while interpreting judicial independence as “the Grand Indents Hall to the Castle of the Constitution”. (Provincial Court Judges (1997) 3 SCR 3).

Our preamble clearly spells the backgrounds, and objectives of this Republic. The Framers of the constitution clearly stated this philosophy, aims at objectives of the constitution and to describe the qualitative aspect of the polity the constitution is designed to achieve. (Anwar Hossain Chowdhury V. Bangladesh, 34 DLR(AD)1).

Therefore, the Framers of the constitution intended to bring about the result which the literal construction produces and the court while interpreting the constitution is required to search for a meaning in conformity with the spirit the objectives of the constitution as indicated in the preamble. It is because the substantive provisions have been spelt out to achieve the objects and purposes. The words ‘historic struggle for national liberation’ mentioned in the preamble clearly indicated that our Parliament would not do anything by way of amendment of the constitution ignoring the spirit of the sacrifice of millions of people. By the same time, we should not make any change in our historic document about the democratic process, fundamental rights, equality and justice, rule of law, which should predominate in the administration of the country. These basic principles should be institutionalized - not curtailed lest the sacrifice of martyrs would be nipped in the bud. This preamble was changed by the military rulers and by the constitutional Fifth Amendment Case, this court restored to its original position.

It brings in the concept of distributive justice which aims at the removal of economic inequalities and undoing of justice resolving from transactions and dealings between unequal persons in the society. Though the qualifying words ‘for national liberation’ ended with the ‘national independence’ it should not be comprehended that our national liberation or independence is over, rather it is quite the opposite

-       it is a continuing process to achieve the august goal for which our martyrs sacrificed their lives. The trial of the offenders of the crimes against humanity, genocide, war crimes etc. by the International Crimes Tribunal is the best example to show that the sacrifice of the martyrs is not over yet. Our independence will be meaningful when we can achieve ‘the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social’ equality for all citizens after eliminating those who did not believe in our historic struggle for national liberation and also those who wanted to mutilate our history of national struggle. This is what our preamble stands for and every time we interpret it, we must keep ourselves alert about the intrinsic link between the spirit of our historic struggle for national liberation and the scheme of our constitution which embody that spirit.

The characteristic feature of an undeveloped country is the stark reality between its economic and social state and the minimum aspirations of a mid- twentieth century State modelled upon the values and objectives of the developed countries of the west. All these countries have an overwhelming need for

rapid socio-economic change. Much of this must express itself in legal change in constitutions, statutes, and administrative regulations. Law in such a State of Social evolution is less and less the recorder of established social, commercial and other customs; it becomes pioneer, the articulated expression of new forces that seek to mould the life of the community according to new patterns. (Legal Theory – W. Friedmann – P429)

This is why Juan Williams in his book ‘We the People’ in Chapter VII under the heading “Liberty and Justice for all” stated that two centuries later Elenor Roosevelt opened a new chapter in US history by expanding the way of American’s think about who qualifies for the protection under the Founding Father’s idea of natural rights. As first lady from 1933-1945, she used the White House Belli Pulpid ‘to make the case that all human beings–both men and women, Jews as well as Christians, West Virginia core minors and Japanese, Internees during world war tour, blacks as well as white, refugees asylum and provides immigrants-are born with God given, natural right to personal liberty”. He further stated that the States of Eleanor Roosevelt works ratcheted earth in the post war era. Americans trump as a global military power in world war two elevated the nations of new heights of moral authority on issue of right or wrong, justice and injustice.

People everywhere wanted clear moral rules and how to treat each other in the aftermath of horrific human rights abuses committed by nazi fascists and terrorists. It was the key, everyone felt to preventing future works. As one of the first US delegates to the newly created United Nations, Mrs. Roosevelt began exporting the American concept of natural rights before her work on UN’s Universal Declaration of Human Rights - the world had never heard an argument for global action to protect all people because they have got given, natural rights. And no one had made the case that international action to defend those natural rights superseded claims of any sovereign government to set his own groups and do as it pledge with its citizen within its own boarders.

This is what I believe in expression ‘We the People’ mentioned in our preamble. There is no doubt that the elected representatives of Bangladesh Awami League led the liberation struggle, but people from all walks of life, like labourers, workers, fishermen, housewives, prisoners, educationalists, students, industrialists, intellectuals, Police, Army, Ansars, BDRs and supporters of other political parties participated, except few religiously fanatic ideologue and their evil companions. Our liberation war was not an isolated event rather it was an all engaging phenomena, turning each and everyone essentially a freedom fighter. Some of them directly fought face to face in the battle field - some of them supported with logistics - some of them encouraged them to achieve their goal - some of them travelled across the world to let people know of the horrific atrocities perpetrated by the military junta and their cohorts—some of them made the international community aware of the real picture so that they could support our cause— some of them collected money by different means to support the freedom fighters— some of them who could not cross the border gave shelter to the freedom fighter—some of them played dual role and secretly sent messages and information to the freedom fighters.

The dream of an egalitarian society based on welfare philosophy was excellently drawn in the preamble of our constitution. Our Preamble is truly a magna carta for this nation. Anybody who reads it will be touched with emotion and spirit of sacrifice and higher purposes of this State for which it was established. The preamble of our constitution being the dream of a war-born nation was so succinctly and perfectly depicted in those only two hundred and thirteen words that it is easily possible to visualize it as a masterpiece of a veteran artist. But the ink that has been used to draw this masterpiece is the blood of innumerable martyrs who sacrificed their lives for a noble purpose. The martyrs dreamed that the “FUNDAMENTAL AIM of the State Bangladesh, is to realize through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and FREEDOM, EQUALITY and JUSTICE, political, economic and social, will be secured for all citizens;” (emphasis added). But alas! This grand ideology was later defaced, distorted, ravaged and molested with the dirty hands of power-mongers, and lastly, this magnum opus of our nation (the constitution) was thrown away aside by the power-greedy politicians and military adventurists. Our hard-earned freedom was snatched away from us and our hundred years of struggle for democracy, rule of law and freedom from poverty and hunger was brutally suppressed.

One of the main reasons that we were able to achieve our independence within a short span of nine months time is that in true sense of the word it was a people’s war—all the citizens wholeheartedly engaged and supported the all-out effort for liberation. The engagement of the mass people and their unprecedented support for the war acted as great source of strength for the freedom fighters, the political leaders, and others who were directly involved in the frontlines of the war. In the history of the world hardly any nations had been able to achieve independence through a war of liberation within such short time. It had been possible because ‘we the people’ wanted it. It is ‘we the people,’ who established “Bangladesh” and it “is a unitary, independent, sovereign Republic to be known as the People's Republic of Bangladesh” (article 1). This “we the people” has been more elaborately and more expressively acknowledged in article 7 as quoted above.

 A creative approach has been adopted in our constitution while organizing the power structure of the State. Clause (2) of article 7 make it abundantly clear that, “This constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, be void.” (emphasis added) Now a very natural question may arise that in the constitution who has been given the responsibility to declare a law void in case it conflicts or is ‘inconsistent’ with article 7 of the constitution?  Has  this  power  been  given  to  the Executive? The answer is an emphatic ‘no’. Has this power been given to the Parliament? The answer is emphatically ‘no’. This heavy burden of scrutinizing constitutionality of any law made by the Parliament or the administrative body of the State has been rested upon the shoulder of the Supreme Court. For that matter the Supreme Court has been assigned with the power of ‘judicial review’ by the constitution itself.  

The most celebrated constitutional law case ever decided pivoted on one of the constitution’s most recondite provision - according to John Marshall’s opinion for the Court in Marbury V. Madison (1803) 5 US 137, part of Congress’s 1789 Judiciary Act attempted to do what the Judicial article did not permit-namely, expand the Court’s original jurisdiction. Marshall’s Court famously proceeded to disregard this part of the act, thereby exercising a power that later Americans would call ‘judicial review’. Most constitutional law casebooks begin with Marbury and lavish attention on the topic of judicial review.’

The power of judicial review was implicit in the Government of India Act, 1935, and had been frequently exercised by the courts of India. The power was, however, expressly conferred by the Indian constitution. Motilal C. Setalvad, in his book ‘My life – Law and other things’ stated that after Marbury’s decision explaining why such a function was the legitimate function of the judicial department, it was perhaps to avoid a controversy of this kind that Indian constitution makers had made express provision for judicial review.

Judicial review needs to be set in the context of mechanisms which seek to activate broader political accountability. The exercise of government power must be controlled in order that it should not be destructive of the very values which it was intended to promote (Lord Steyn, “The Weakest and Least Dangerous Department of Government”). There is a growing appreciation that the courts and Parliament have distinct and complementary constitutional roles so that the courts will no longer avoid adjudicating on the legality of a decision merely because it has been debated and approved in Parliament. (R V. Secretary of State Home Department (2001) EWCA Civ 789). Judicial review also goes some way to answering the age-old question of ‘who guards the guards?” by ensuring that public authorities responsible for ensuring accountability of government do so within the boundaries of their own lawful powers. (De Smith’s Judicial Review. P.6-7).

In this juncture it is apt to quote the observations of Prof. Schwartz, the Constitution of the United States, Vol –I:

“An organic instrument is naught but empty words if it cannot be enforced by the Courts. It is judicial review that makes the provisions of a constitution more than mere maxims of political morality.....” The universal sense of America has come to realize that there can be no constitution without law administered through the Supreme Court. When, in a real controversy, an appeal is made to law, the issue must be left entirely to the judgment

of the highest tribunal. This principle, in the phrase of an English constitutional lawyer, provide the only adequate safeguard which has hitherto been invented against unconstitutional legislation. It is, in truth, the sine qua non of the constitutional structure. So long, therefore, as the constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceedings the angry and irritating controversies between sovereignties, which in other countries have been determined by the arbitrariness of force. Again, speaking of the rule of law, Prof. Schwartz observed:

“Closely related to what has just been said is a third essential of the rule of law – that there are certain fundamental principles above the State itself, which the State, sovereign power though it be, cannot abrogate. Government action is valid only if it does not conflict with these principles. The principles in question are those we usually comprehend by the expression individual rights of the person. They are what an earlier age called ‘the natural rights of man’ and are the sort of thing guaranteed in the American bills of rights. ‘It must be conceded’, the Supreme Court has affirmed, ‘that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all time to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you chose to call it so, but it is nonetheless a despotism.”

In A.K. Kaul V. Union of India, (1995) 4 SCC 73, the Supreme Court of India observed that in ‘a written constitution the powers of the various organs of the State are limited by the constitution. The extent of those limitations has to be determined on the interpretation of the relevant provisions of the Constitution …. The task of interpreting the provisions of the constitution is entrusted to the judiciary which is vested with the power to test the validity of the actions of any authority functioning under the Constitution … in order to ensure that the authority exercising the power conferred by the constitution does not transgress the limitations imposed by the Constitution on the exercise of that power. This power of judicial review is therefore implicit in a written constitution and unless expressly excluded by the provisions of the constitution, the power of judicial review is available in respect of the exercise of powers under any provision of the Constitution.’

Without going through all landmark decisions in the judicial history on the question of judicial review some observations, remarks of a renowned jurist are apt to mention here. On the inaugural sitting of the Supreme Court of India, Harilal Kanai, Chief Justice of India, said, the court must be ‘quite untouchable by the legislature or the executive authority in the performance of its duties. Beyond this Judges should be, and perceived to be unmoved by the ‘extraneous considerations feared likely to influence them’. ((1950) SCR 1). Referring to the role of the court to interpreting the constitution; Chief Justice then concluded his speech on the question of its independence:

“The Supreme Court, an all-India Court will stand firm and aloof from party politics and political theories. It is unconcerned with the changes in the government. The Court stands to administer the law for the time being in force, has goodwill and sympathy for all, but is allied to none. Occupying that position, we hope and trust it will play a great part in the building up of the nation, and in stabilizing the roots of civilization which have twice been threatened and shaken by two world wars, and maintain the fundamental principles of justice which are the emblem of God.”

The journey of judicial review on constitutional amendments of India started from the First Amendment Act, 1951, which had inserted article 31B. In Shankari Prashad V. Union of India, AIR 1951 SC 458, the court held that to make a law which contravenes the constitution constitutionally valid is a matter of constitutional amendment and as such falls within the exclusive power of Parliament. The Shankari Prashad case was revisited in Sajjan Singh V. State of Rajasthan, AIR 1965 SC 845. The Constitution Seventeenth Amendment Act, 1964 had placed a still larger number of State enactments in the Ninth Schedule to obviate a challenge against them as being in violation of fundamental rights. This amendment to the constitution was upheld by a Bench of five Judges.

It was ultimately in Golak Nath V. State of Punjab, AIR 1967 SC 1643, where a Bench of eleven members considered whether any part of the fundamental rights guaranteed in the constitution could be abrogated or amended by constitutional amendment. The court by majority viewed that none of the fundamental rights were amenable to the amending power of article 368 because an amendment to the constitution was a law under article 13(2) and under that article, all laws in contravention of any of the fundamental rights in Part III of the constitution were expressly declared to be void.

Six years later in 1973, a larger Bench of thirteen Judges had to consider the validity of some of the later amendments, the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment of the constitution. The case was practically based on considering the correctness of the decision of Golaknath. (Kesavananda Bharati V. State of Kerala, AIR 1973 SC 1461).

In Kesavananda the following points were agitated:

(a)      “Parliament, in exercise of its amending power, cannot abrogate or abridge the fundamental rights. These were the basic human freedoms which the people of India had reserved for themselves while giving to themselves the Constitution;

(b)      In any event, Parliament, in exercise of its amending power, cannot alter or destroy the basic structure or the essential features for the Constitution;

(c)      A free and independent judiciary - without it, all rights would be writ in water;

(d)      The balance between the legislature, the executive and the judiciary - none of the three organs of the State could use its powers to destroy the powers of the other two, nor could any of them abdicate its power in favour of another.”

The Indian Supreme Court by a majority held that though Parliament can amend any part of the constitution in exercise of its amending power, it cannot alter the basic structure or framework of the constitution. (Golaknath was overruled). Though the judgment was clearly by a majority, it was apparent that the division was sharp- 6:6. Khanna, J. who was with the majority, did not accept that all fundamental rights enshrined in Part III were part of the basic structure. He said that the right to property was not. Except for this, he was in agreement with the rest of the majority opinion that the basic features of the constitution cannot be amended in such a way as to destroy or damage its basic structure …

The majority opinion was as follows:

“(1). Parliament’s amending power is limited. While Parliament has the

right to abridge any fundamental right or amend any provision of the Constitution, the amending power does not extend to damaging or destroying any of the essential features of the constitution. The fundamental rights are among the essential features of the constitution; therefore, while they may be abridged, the abridgement cannot extend to the point of damage to or destruction of the core of the fundamental rights. Thus, it was unnecessary to decide whether the Golaknath case was rightly decided or not, since after the 24th Amendment, Parliament has the power to abridge any fundamental right without damaging or destroying its core.

(2)     While the property of any person may be taken away on payment of an ‘amount’ which may not be the market value or constitute ‘compensation’ in the eye of the law, the amount or the principles on which it is based must have a reasonable relation to the property.

(3).      Article 31C is void since it takes away most valuable fundamental rights, even those unconnected with property.

And other six Judges held as under:

1)      The power of amendment is unlimited.

2)      On a fair construction of Article 31(2) as altered by the 25th Amendment, the

state’s right to acquire or requisition property on payment of an ‘amount’ must, according to some of these judges, be so exercised that the amounts is not illusory and does not constitute a fraud upon the right to property.

3)                  Article 31C is valid, even though it damages or destroys the essential features of the Constitution.”   

Since there was Division by six into six, Khanna, J. agreed with none of these 12 Judges and decided the case midway between the two conflicting views holding that (a) the power of amendment is limited; it does not enable Parliament to alter the basic structure of framework of the constitution; and (b) the substantive provision of article 31C, which abrogates the fundamental rights, is valid on the ground that it does not alter the basic structure or framework of the constitution.

Now turning to the point as to the interpretation of the constitution, there is no doubt that in interpreting a constitutional document the meaning and intention of Framers of the constitution must be ascertained from the language of that constitution itself; with the motives of those who framed it, the court has no concern. (In re 1938 (1939) FCR 18, 36, (39)). After quoting the observations of Lord Wright in James V. Common Wealth, (1936) AC 578 Gwyer CJ stated that “a Constitution must not be construed in a narrow or pendantic manner, and that construction most beneficial to the widest possible amplitude”.

 Professor Cross in his book on Statutory Constructions, 1976, has given a careful analysis of the expression “the intention of Parliament”. According to him, it is meaningless to speak of the intention of Parliament unless it is recognized that the expression is used by analogy but in no way synonymous with the intention of any individual concerning the general and particular affects of a document he prepares and signs. He adds that Parliament is treated as though it was an individual law maker, whose intention is to be ascertained from the language which he has used in making and promulgating the law. It is said, constitution must be construed as on the day after it was enacted. Dr. Wynes phrase ‘generic interpretation’ clearly brings out the true nature of this principle of interpretation. He wrote: -

‘…generic interpretation’ … asserts no more than that new developments of the same subject and new means of executing an unchanging power do arise from time to time and are capable of control and exercise by the appropriate organ to which the power has been committed … while the power remains the same, its extent and ambit may grow with the progress of history. Hence it will be seen that suppositions as to what the Framers might have done if their minds had been directed to future developments are irrelevant and that the question whether a novel development is or is not included in the terms of the constitution finds its solution in the application of the ordinary principles of interpretation, namely, what is the meaning of the terms in which his intention has been expressed?” (R. v. Brislan; p. (1935) 54C.L.R. 262).

Questions relating to extrinsic aids to construction have been increasingly engaging the attention of courts in India and England. Therefore, we must consider the recent trends in statutory interpretation before considering their impact on the interpretation of the constitution. The importance attached to ‘context’ in statutory interpretation, has gone hand in hand with an analysis of the phrase ‘intention of Parliament’ and of the factors that go to make up the whole legislative process resulting in an Act of Parliament. Once it is realized that the ‘intention of Parliament’ ‘is not a description but a linguistic convenience’ the whole legislative process assumes importance for statutory interpretation. This new approach emphasizes, first the realities of the legislative process; secondly, the close relationship between the draftsman of an Act and the court of construction; and thirdly, the practical grounds on which English courts limit the use of ‘travaux preperatories’ (preparatory work) as an aid to construction.

Sometimes the parliamentary debates are taken into consideration in interpreting a constitutional provision. In this regard Patanjali Sastri, CJ. ruled that speeches made in the Constituent Assembly in course of draft constitution could be used as aids for interpreting any article of the constitution. He observed that:

“… the use made by … Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian Statutes. The reason behind the rule was explained by one of us in Gopalan that “A speech made in the course of the debate on a bill could at best be indicative of the intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislator were in accord” or, as it more tersely pot in an American case-‘those who did not speak may not have agreed with those who did; and those who spoke might differ from each other”. (Trav-Cochin V.

Bombay Co. Ltd., 1952(SCR) 1112). Accordingly, in Kesavananda, it was observed that it is not necessary to refer to judgments which have relied upon speeches made in the Constituent Assembly without considering the question whether they were admissible for interpreting the Constitution. In that case Sikri, CJ. Hedge, Mukherjea and Chandrachud,JJ. held that speeches were not admissible extrinsic aids to the interpretation of the constitution. Keeping the above principles on the genesis of the constitutional law, let us look at the findings of the High Court Division.

The High Court Division upon analysing the views taken in the Exparte Sidebotham, (1880) 14 Ch. W. 458; Tariq Transport Company V. Sargotha Bhera Bus Service, 11 DLR (SC) 140; Mian Fazl Din V. Lahore Improvement Trust, 21 DLR (SC) 225; Legal Control of Government by Schwartz and Wade, page 291; R.V. Metropolitan Police Commissioner (1968) 1 All ER 763; Blackburn V. Attorney General (1971) 2 All ER 1380; R.V. Metropolitan Police Commissioner (1973) All ER 324, on the question of maintainability of the writ petition held that with the increase of governmental function, the courts in India and England found the necessity of liberalising the standing rule to preserve the rule of law and that the duty owed by the public authority was to the general public and not to an individual or to a determinate class of persons, and therefore, the writ petitioners have locus standi as they have sufficient interest in the performance of public duty.

On the question of public interest litigation, the High Court Division has considered the cases of Mumbai Kamgar Sava V. Aledulbhai, AIR 1976 S.C. 1455; S.P. Gupta V. President of India, AIR 1982 S.C. 149; Kazi Moklesure Rahman V. Bangladesh, 26 DLR (AD) 44; Dr. Mohiuddin Farooque V. Bangladesh, 49 DLR (AD) 1; Ekushey Television V. Dr. Chowdhury Mahmud Hasan, 54 DLR (AD) 130; Anwar Hossain Chowdhury V. Bangladesh, BLD (spl) 1; M. Saleemullah V. Bangladesh, 2005 BLD 195 and held that the horizon of judicial review is being expanded through judicial activism with the passage of time facilitating citizens access to justice; that a great duty is cast upon the lawyers for onward march of our constitutional journey to the desired destination; that the writ petitioners are very much concerned with the independence of the judiciary, inasmuch as, they are the stakeholders in the administration of justice without hindrance; that the concern expressed by the writ petitioners about the independence of higher judiciary and separation of powers among the three organs of the State is a public concern. I fully endorse the views expressed by the majority of the High Court Division and with a view to avoiding repetition, I have refrained from making any further opinion supplementing those of the High Court Division.

On the question of judicial accountability, the High Court Division has relied upon the Commonwealth Latimar House Principles and held that the Judges are accountable to the constitution and the law; that the proper procedures for the removal of Judges on grounds of incapacity misbehaviour that are required to support the principles of independence of the judiciary – any such procedures should be fairly and objectively administered; that the Westminster system of Parliamentary removal has not proved to be most popular among Commonwealth jurisdictions; that ad-hoc tribunals and permanent disciplinary councils are akin to the Chief Justice – led Supreme Judicial Council; that the relationship between the Parliament and the judiciary should be governed by respect for the Parliament’s primary responsibility for law- making on the one hand and for the judiciary’s responsibility for the interpretation and application of law; that it leaves no room for doubt that the task of administration of justice is entrusted to the Judges who are unelected people and thus the Judges exercise sovereign judicial power of the people and by the authority of the constitution; that being the

The High Court Division further held that the Parliament’s amending power of the constitution is not absolute and it cannot make any law in derogation of the provisions and the basic features of the constitution; that the Parliament cannot transgress the constitutional limitation and if it does so, it can be termed as colourable legislation; that amendment to the constitution should be made subject to the retention of basic structure of the constitution; that article 70 of the constitution has fettered the members of Parliament unreasonably and shockingly-it has imposed a tight rein on them-they cannot go against their party line or opposition and on any issue of the Parliament; that non-framing of any law pursuant to article 95(2)(c) of the constitution has virtually given an upper hand to the executive in the matter of appointment of the Judges of the Supreme Court; that unless and until articles 115 and 116 are restored to their original position, the lower judiciary will continue to remain under the sway and influence of the executive impinging upon the independence; that the constitution does not allow any judicial role by the Parliament and the role of each organ of the State is clearly defined and carefully kept separate with a view to maintaining its harmony and integrity; that the law to be promulgated by the Parliament under the amended article 96(3) is incongruous, inasmuch as, it being an ordinary law it will be subject to frequent changes by simple majority of the members of Parliament in the interest of the party in power jeopardizing the independence of judiciary; that Sixteenth Amendment has facilitated the political executives to control the judiciary; and that the amendment is also beyond the pale of amending power of the constitution in view of article 7B of the constitution.

Mr. Mahbubey Alam, Mr. Murad Reza, Mr. Ajmalul Hossain, Mr. Abdul Matin Khasru, supported the Constitution Sixteenth Amendment and submitted written arguments. Their arguments are almost identical. According to them the writ petition is not maintainable, that the writ petition is premature; that the judiciary as one of the essential organs of the Republic ought to be made accountable to the people; that the removal of the Judges should be left with the representatives of the people; that the Sixteenth Amendment has not curtailed the independence of judiciary; that this amendment has not violated article 7B of the constitution; that this amendment restored the original provision contained in article 96 and thereby it has not interfered with the basic structure of the constitution and that the High Court Division erred in its majority view in declaring the Constitution Sixteenth Amendment ultra vires the constitution.

Mr. Murad Reza raised the issue of writ petitioners’ locus standi to maintain the writ petition and also the maintainability of the writ petition. In support of his contention he has relied upon some cases which were considered by the High Court Division.

The Philosophy of Public interest litigation (PIL) has developed in recent decades and marks a significant departure from traditional judicial proceedings. It is an idea that was in the making for some time before its vigorous growth in the early eighties. It now dominates the public perception of the Supreme Court of Bangladesh and other courts of the region. This court is an institution not only for reaching out to provide relief to citizens, but even venturing into formulating policy which the State must follow including the Parliament’s domain to amend the constitution. Initially it was taken on the philosophy that most of the citizens were unaware of their legal rights, and much less in a position to assert them, and therefore, a public spirited person may seek judicial redress by interpreting the words ‘any person aggrieved’ not only individuals but also people as a collective and consolidated personality. The court has shifted from its traditional rule of standing which confines access to the judicial process only to those to whom injuries are caused or legal wrong is done and on the contrary, where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of

Bhagwati, J. of the Supreme Court of India quoted a passage from Professor Thio’s book on locus standi and judicial review (1982) ASC, P-189 and observed that the judicial function is that it is primarily aimed at preserving legal order by confining the Legislative and Executive organs of government within their powers in the interest of the public rests on the theory that the courts are the final arbiters of what is legal and illegal requirements of locus standi are, therefore, unnecessary in this case since they merely impede the purpose of the function as conceived here. He concluded his opinion by observing as under:

“We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realization of the constitutional objective”.

In the Supreme Court Judges case S.P. Gupta V. India, AIR 1982 S.C 149, it was observed as under:

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons is by reasons of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.” (S.P.Gupta V.

Union of India, 1981 supp SCC 87 at P.210). Thereafter a Constitution Bench of the Supreme Court in M.C. Mehta V. Union of India, AIR 1987 SC. 1086 has given a judicial innovation as to how the Judges could leave their footprints on the sands of the nation’s legal history as under:

“this court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy.”

I fully endorse the above view. In Anwar Hossain Chowdhury (supra), the importance of independence of judiciary was highlighted holding that the concept of independence of judiciary as part of the basic feature of the constitution, to secure rule of law, a lawyer is entitled to challenge the Constitutional Amendment for safeguarding the independence of judiciary. The High Court Division has assigned proper reasons in holding that the writ petitioners have locus standi to maintain the writ petition.

I find no reason to depart from the same. The Supreme Court of India traveled to the extent that if the court takes cognizance of a PIL, it will not allow the petitioner to withdraw the petition on his free will. In Sheela Varsi V. Union of India, (1988) 4 SCC 266 and SP Anand V. HD Debugoura, (1996) 6 SCC 734, it was observed “In PIL

cases the petitioner is not entitled to withdraw his petition at his sweet will unless the court sees reason to permit withdrawal. In granting permission the court would be guided by the considerations of public interest and would also ensure that it does not result in abuse of process of the law.” I fully endorse the views and find no reason to depart from the same principle, because in publicly important cases the Supreme Court being the guardian of the constitution after seizing the issue cannot remain a silent spectator even after noticing that there was violation of the constitution or the law. This Court always keeps in mind that PIL is not a litigation of an adversary character undertaken for the purpose of holding the government or its officers responsible for making reparation but it is a dispute which involves a collaborative and co-operative effort on the part of the State or its Officers, the lawyers appearing in the case and the court for the purpose of making human rights meaningful for the community or protecting the independence of the judiciary.

Mr. Murad Reza has made strong resentment towards the role of most of the learned Amici and submits that they have exceeded their power in expressing their opinions. I am indeed shocked at the manner the learned Additional Attorney General has criticized the learned Amici Curiae. In this connection, I will not be able to explain this point better than the opinions expressed by J.S. Verma, C.J. in a seminar on ‘The Constitutional Obligation of the Judiciary’ under R.C. Memorial Lecture (1997) 7 SCC 1, which are as under:

‘It must be said to the credit of the Bar, and this I say from personal experience over the years, the most busy lawyers who charge large fees which I often openly criticize, if called upon to appear as amicus curiae in any such matter, leave every other work and without charging a single rupee put in their best effort in a PIL matter. That credit is due to the Bar. That is the beauty of the justice delivery system and that goes to show that the legal profession has not yet become wholly mercenary. Professionalism remains and professionalism is the essential trait of any such service-oriented enterprise.’

In traditional adversarial system, the lawyers of the parties present points which are at issue to enable the court to decide for or against a party. In PIL there are no winners or losers and the mindset of both lawyers and Judges can be different from that in ordinary litigation. The court, the parties and the lawyers are expected to participate in resolution of a given public problem. (Dr. Upendra Baxi V. State of U.P. (1986) 4 SCC 106).

Mr. Manzill Murshid while adopting the arguments made in the High Court Division also submits that the writ petition is maintainable. He has also submitted about the background of the Sixteenth Amendment. According to him, the Supreme Court interfered with the Contempt of Court Act, 2013; the relevant provisions of the Durniti Daman Commission Ain, 2004 and direction to arrest the accused in Narayangonj’s sensational seven murder case that prompted the Parliament with a view to taking control of higher judiciary by amending the provisions of removal mechanism of Judges of the highest court. He also submitted that most of the members of the Parliament are involved in development works and their personal business. At times, they are affected by the order of the highest court of the country. Under the amended provision in any case, a member of Parliament can bring a motion against a Judge and discuss it in the Parliament and due to this reason, no Judge will be able to perform his duties independently. Ultimately the justice would be frustrated and administration of justice would collapse without any delay. In his submission he has mentioned the procedure for removal of Judges by Parliament in some other countries like USA, UK, India, Sri Lanka and drawn the court’s attention of the devastating effect of the Parliamentary removal system of Judges. He has also mentioned some countries where Judges are removed by Supreme Judicial Council/Tribunal etc. He has specially mentioned the removal procedure of Judges in Pakistan, Zambia, Fiji, Namibia, Singapore and Bulgaria. He has also mentioned the Appointment, Tenure and Removal of Judges under Commonwealth

Mr. T.H. Khan, Mr. M. Amirul Islam, Mr. M.I. Farooqui, Dr. Kamal Hossain, Mr. Abdul Wadud Bhuiyan, Mr. A.F. Hassan Ariff, Mr. Rokanuddin Mahmud, Mr. Fida M. Kamal and Mr. A.J. Muhammad Ali supported the judgment of the High Court Division declaring the Sixteenth Amendment illegal,  ultra vires the constitution and they have also submitted written arguments.

According to them the judgment the Fifth Amendment case approved and upheld the Supreme Judicial Council mechanism for removal of the Judges of the higher judiciary; that the impugned amendment is unconstitutional; that this amendment curtailed the independence of judiciary; that article 70 of the constitution has imposed a tight rein on the members of Parliament and therefore, they have no freedom to question their Party’s stance; that the Supreme Judicial Council mechanism reinforces the independence of judiciary and that the impugned amendment contravenes article 7B and the basic structures of the Constitution.  

Before I deal with the points raised by the learned senior counsel, it is pertinent to recapitulate the trajectory of various amendments made to the different provisions relating to the constitution for correct resolution of the issues involved in the matter which are as under:

e asc t mentioned in

101

uding article 150

102

103

u andy provision

104

badeveno cate of the

hrem  e Court;

105

itner ritory now