WHILE everyone is talking about the vacuum in the constitution of Bangladesh created after the decision of the Appellate Division made in the case of 16th amendment to the constitution with regards to the procedure that would be suitable to impeach a Supreme Court judge, let us look forward and find the ways out from this cloud of doubt. For this, we may have to look back at the case of Anwar Hussain v Bangladesh, popularly known as the 8th amendment case, which is a historic judgement in the constitutional history of Bangladesh.
As we know that the Appellate Division has upheld the decision of the High Court that provides that the 16th amendment to the constitution is illegal, in response to this, the government has expressed its concern that the constitutional provisions annulled by the parliament are not to be reinstated automatically and the court cannot be a replacement for the parliament.
In response to these concerns, the following discussion may be helpful to determine the matter of controversy:
The appellate court in its verdict in the 16th amendment of constitution case mentioned that ‘Since this amendment is ultra vires the constitution, the provision prevailing before the substitution is restored. The appeal is accordingly dismissed.’ Therefore, it clearly mentions that the court is authorising the restoration of substitution and accordingly Supreme Judicial Council and Clause 2, 3, 4, 5, 6 and 7 of Article 96 of the constitution are restored. Therefore, the apex court’s own mechanism for removing judges shall be initiated, and, with the amendment being scrapped. The said verdict continues to state that ‘it goes without saying that judges being human being may make mistakes, some of which are unintentional but with devastating effects on individuals. Those mistakes may be rectified through several layers of appeal and review’. It adds that ‘judges can be removed following a due procedure. They cannot be removed or punished for bona fide errors or for disagreeing on a particular interpretation of law.’
Therefore, the verdict is very clear on the point that how the impeachment of judges shall be done. Since the Supreme Judicial Council and Clause 2, 3, 4, 5, 6 and 7 of Article 96 of the constitution has been restored as stated in the verdict, therefore, the impeachment of the Supreme Court judges shall be done by the Supreme Judicial Council, composed of the chief justice and two next senior judges only.
The constitution also ensures the same as Article 111 of the constitution provides that the law declared by the Appellate Division shall be binding on the High Court Division.
Moreover, this is not the first time that Bangladesh is experiencing a judicial decision declaring a constitutional amendment as illegal. As discussed above, the 8th amendment of constitution case also evidenced the same dilemma and we see that the substitution was restored. In the 8th amendment to constitution case, the amended Article 100 of the constitution and the notification of the chief justice were challenged as ultra vires on the ground that the constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for if these pillars are dismissed or damaged, then the whole constitutional structure will be down. The judgement of the 8th amendment to constitution is the first judgement whereby the Supreme Court has struck off an amendment to the constitution made by the parliament.
Now the next option is filing a review petition with regards to the decision of the Appellate Division in the 16th amendment case as per Article 105 of the constitution, which provides that the Appellate Division shall have power, subject to the provisions of any act of parliament and of any rules made by that division; to review any judgement pronounced or order made by it. Unless the decision is thereafter revised by the Appellate Division, it shall be binding universally.
Another principle that should also be considered in this matter is the principle of res judicata. Res judicata is a principle of universal application, which provides that a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.
The Code of Civil Procedure 1908 provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
This principle applies to civil suits, criminal proceedings, writ petitions, execution suits, etc. The underlying principle of that doctrine is that there should be finality in litigation. The essential condition for the applicability is that the subsequent suit or proceeding is founded on the same cause of action on which the former suit was founded. It is a debatable point whether the doctrine of res judicata should be interpreted liberally or strictly. However, keeping in view its basis and objective, which is based on public policy, it can be reasonably asserted that the doctrine of res judicata should be interpreted liberally.
Therefore, since the matter has been settled by the Appellate Division of the Supreme Court, there is no place for doubt and, hence, the restoration of Supreme Judicial Council and Clause 2, 3, 4, 5, 6 and 7 of Article 96 of the constitution is confirmed. And accordingly, the impeachment is to be done as it used to be done before the enactment of the Constitution (Sixteenth Amendment) Act 2014.
Tasmiah Nuhiya Ahmed, an advocate, works as a research assistant (law) with the Bangladesh Institute of Law and International Affairs.
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