Civil Appeal 6/2017

799 Pages·2017·2.07 MB·English

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,
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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
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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.
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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
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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
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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
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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
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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
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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
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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