Bangladesh: Controversy of the Parliament Supremacy

Bangladesh: Controversy of the Parliament Supremacy

Ikteder Ahmed,

The supremacy of the parliament is acknowledged and accepted throughout the world, debated in no country. The parliament is synonymous to the people, not a substitute. The parliament directly represents the people.

The supreme law of the country, the constitution, is the creation of the Parliament. A creation can never be the bigger than the creator. The Supreme Court is the creation of the constitution. Thus is not above the constitution. The power of the Supreme Court is controlled and regulated by the constitution and law enacted by the parliament. The parliament and people are one entity. Thus parliament is conducted as per the will of the people. The power of the parliament is limited by the constitution and constitutional law. As there is limitation to the power of the people in the same way there is also limitation to the power of the parliament. But this limitation does not approve superintendence over the power of the parliament of any other organization created under constitution enacted by the parliament.

The parliament in the United Kingdom, the guardian of parliamentary democracy, is conducted by the constitutional law gradually developed over the last thousand years. Indeed there is no difference between constitution and constitutional law. In the matter of a written constitution, the constitutional law is recorded in a single book. On the other hand, an unwritten constitution is recorded in several books. Thus in the question of sovereignty of the parliament as to whether the constitution is written or unwritten, there is no difference on the standing of the both.

In the matter of interpretation of the constitution as per observation of Halsbury and Maxwell, the intention of legislature is prime and if there is indistinctness in the intention, the court can remove that but in that matter also acceptance or rejection of the interpretation of the court depends on intention of the legislature. The interpretation of any law made by parliament given by the court can never restrain supremacy of the law making power of the parliament. In the matter of enactment and interpretation of law, the supremacy of the parliament is acknowledged in every civilized and democratic country of the world.

The power of the three organs of the state namely – Legislature, Executive and Judiciary – are regulated by the constitution, law and rules. Although each of the organs is independent within its own sphere but is not above accountability. Each member of the Parliament elected through direct vote of the people is particularly accountable to the people of his own constituency and generally to the people of the country.  The cabinet headed by the Prime Minister is jointly accountable to the Parliament. Excepting Chief Justice the other Judges of the Supreme Court are appointed by the President on the recommendation of the Prime Minister and Chief Justice and removable by the President subject to certain conditions. The President is impeachable by the votes of not less than two-thirds of the total number of Members of Parliament on a charge of violating the constitution or grave misconduct.

As per provisions of 1972 constitution the judges of the Supreme Court were impeachable by the members of parliament on the ground of misconduct or incapacity. The Supreme Judicial Council System introduced through martial law proclamation in article 96 of the constitution got incorporated in the constitution through 5th amendment of the constitution. Subsequently although the Supreme Court declared 5th amendment illegal, the Supreme Judicial Council System introduced by the martial law proclamation was exonerated as the same is in favour of the judges. That is why the Supreme Judicial Council System continued to remain as part of the constitution subsequent to declaring illegal 5th amendment to the constitution by the Supreme Court.

The Supreme Judicial Council System is not consistent with democratic norms and practices. It is tantamount to holding of self trial, contrary to the worldwide acknowledged principle in the matter of justice that no one should be the judge of his own cause. Save and excepting Pakistan, in no other democratic country of the world this undemocratic system is prevalent. By the 16th amendment of the constitution the supreme judicial council system was abolished and parliamentary impeachment system was restored. But this time the Supreme Court declared the 16th amendment of the constitution illegal.

Pursuant to remarks by a judge of the Supreme Court on June 5, 2012 violating article 78(a) of the constitution the Speaker of the Parliament on the basis of unanimous discussion made in the Parliament gave a ruling on June, 18 2012 declaring that the said judge violated the constitution and left the matter at the discretion of the Chief Justice to take appropriate step against the concerned Judge. But today it is a matter of great regret that a bench constituted with special motive dismissed a writ petition filed challenging validity of the ruling and thereby delivered a judgment containing 38 pages declaring that the ruling of the Speaker in the matter of violating of constitution by a Judge is illegal and leaving the matter at the discretion of the Chief Justice to take step against the concerned Judge is ineffective.

In our legal system if any case is dismissed without issuing notice to the main aggrieved party as well as without hearing the said party, then in the dismissal order the court does not have the scope to write any other thing excepting the reasons assigned supporting the dismissal order. It is always instantaneous. But if we look into the full text of the judgment of the dismissal writ petition dated July 24, 2012 passed on August 27, 2012 it transpires that the judgment contains order supporting the relief sought in the writ petition which tantamount to making of the rule absolute. Is such order on dismissal petition without issuing notice to the aggrieved party, without issuing rule and without hearing consistent with law, rules and regulations and morality as well as ethics?

There is no obscurity in article 78(1) of the constitution. In the said article it has been specifically stated that the validity of the proceedings in Parliament shall not be questioned in any court. Now the question is as to whether the ruling given by the Speaker on June 18, 2012 is proceedings and if that is proceedings is there any scope to declare the same illegal? In the matter of civil and criminal cases all programs subsequent to filing of a case to giving of final decision by the court is called proceedings. In respect of parliament all programs ranging between initiations of discussion on any matter to giving of the decision on the matter by the Speaker is called proceedings. In respect of these proceedings the provision of article 78(1) is distinct. If there is any obscurity in any article of the constitution or in any section of any law then the court by way of interpretation can give redress to the same. In the instant matter the way the court has declared the ruling of the Speaker illegal and ineffective that has raised suspicion and doubt in the mind of many Members of Parliament as to whether in future they would be in a position to speak freely and independently in the parliament.

It has been stated in the judgment of the court that the ruling of the Speaker is not consistent with article 96(5) of the constitution. Now the question is, if the ruling of the Speaker is inconsistent, are the judges of the Supreme Court above all accountability? Do the parliament and Speaker as representatives of the people have no right to draw attention of the Chief Justice seeking redress to illegal act of a judge?

The Members of Parliament as public representative during sessions or Parliament can make discussion in public interest on any matter of public importance and in this matter pendency or non-pendency of suit in any court is irrelevant. Here pending means a case in which the Parliament does not have any involvement. Such as dispute relating to land or murder between Rahimuddi and Kolimuddi. The case in which the prerogative of the Parliament and Speaker is involved in that case if Parliament does not speak then where is the standing of the Parliament? In this respect the decision cited in AIR 1960 SC 1186 in the case of M.S. Sharma Vs. Sinha is relevant. In the said decision it has been held that “Parliament has the exclusive right to regulate its own internal proceedings and to adjudicate upon matters arising there. The validity of the proceedings within Parliament cannot be challenged in court even when Parliament does not strictly follow its rules of procedure as Parliament reserves the right to suspend any rule of procedure in respect of a particular business”. Another decision cited in the case of Bradlough V. Gossett, 12QBD 271 is also found to be relevant. In this decision it has been held that “Parliament has the exclusive power of interpreting a law so far as the regulation of its own proceedings within its four walls is concerned and the court has no jurisdiction to interfere with it”.

If a part of the people, a police constable, a pilot and an air hostess of a national airline Biman and people of any class or profession of the society, illegally and unconstitutionally are harassed by the court, does the parliament have no right to look into the same? A judge of the Supreme Court prior to taking seat of the judge solemnly affirms amongst other that he would preserve, protect and defend the constitution. If a judge of the Supreme Court in connection with a case makes an abusive remark, keeping a person standing before the court then to what extent it is consistent with article 35(5) and newly inserted article 7(a) (1) (b) of the constitution that is to be taken into consideration and if not consistent is there any scope to differ that there has not been only violation of the constitution but also taking place of commission of the offence of sedition.

The two judges with whom the special bench was constituted whose brother-in-law are they, what are their academic qualifications along with other judges, as to whether they were disqualified in the appointment examination of the lowest post of the Judiciary, do they fulfill the required qualifications for appointment as Judges of the Supreme Court to that effect if any enquiry is made then many unknown and sensational information will come out. Apart from that it is also required to be looked into as to whether there is scope to consider one profoundly wise when his success as barrister came at the sixth time. For appearing in the lowest post of the judiciary one is required to have second class in all examinations in between matriculation to graduation but if it is found that persons having one or more third class have got entry as Judges of the Supreme Court in that case to what extent fair play of justice would be ensured.

During 1996 – 2001 while the present government had been in power then, in relation to a contempt petition filed before the Appellate Division of the Supreme Court concerning a remark of the Prime Minister, the court like that of present writ petition, dismissed the petition and unfairly made comment about the honourable Prime Minister as wrong-headed and devoid of civility. That day the matter could not be resolved for lack of required majority but today where is the obstacle in resolving the matter? Today if we fail to resolve the matter the nation would have to pay for it in future. Thus there should not be any dispute with the Judiciary for safeguarding prestige of the Parliament the symbol of sovereignty of the people of the country. The three judges who are found to be guilty of violation of the constitution there is need of taking immediate step against them.

In the preamble of the constitution there is manifestation that we, the people of Bangladesh having proclaimed our independence on the 26 day of March, 1971 and, through a historic struggle for national liberation, established the independent, sovereign People’s Republic of Bangladesh. Again we find reflection of this manifestation in article 7(1) which says `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. The above discussion as made  in the parliament on 4th, September 2012 by Sheikh Fazlul Karim Selim, Tofail Ahmed, Mujibul Haque Chunnu, Moinuddin Khan Badal, Rashed Khan Menon, Hasanul Haque Inu, Suranjit Sen Gupta and others lay the basis to unequivocally say that sovereignty of the Parliament and independence of the Judiciary are not the same thing. The sovereignty of Parliament is synonym to people and on that view point Parliament exercises power to the true reflection of will of the people. On the other hand the Judiciary exercises its power within the framework of the constitution. The supremacy of the parliament is glory to the people while independence of the judiciary is a tool to remain as vanguard for upholding that glory.

Ikteder Ahmed is former judge and former registrar, Supreme Court