People have more confidence in judiciary now, says chief justice

Chief Justice Surendra Kumar Sinha has said the public confidence in the judiciary is now higher than it has ever been because of its work despite hurdles.

Staff Correspondentbdnews24.com
Published : 24 May 2017, 08:21 PM
Updated : 24 May 2017, 10:58 PM

According to him, the people's trust in the judicial system is more than 90 percent now. He says the judiciary is 100 times better than any other organisation in Bangladesh.

The chief justice made the observations at one stage of arguments with Attorney General Mahbubey Alam during the sixth day of hearing on the state appeal against the High Court verdict that had declared illegal the 16th amendment to the constitution.

That amendment, passed on Sept 17, 2014, allows parliament to remove top court judges by a two-thirds majority on grounds of incompetence and misconduct. The High Court verdict on the amendment was issued last year.

The attorney general argued on Wednesday that the amendment was brought to return the Bangladesh constitution to its original 1972 form.

He said the rule to remove judges through Supreme Judicial Council, passed during the martial law of Ziaur Rahman, is a 'shame' in the nation’s constitutional history.    

"We want to erase only what was done through martial law," Alam said.

At Tuesday's hearing, the attorney general said the power to remove judges is vested on the president now since no law with regards to the issue exists now.

Chief Justice Surendra Kumar Sinha at a reception by Bangladesh Women Judges Association at Dhaka’s Judicial Administration Training Institute on Saturday.

Justice Sinha had told Attorney General Alam in the beginning of Wednesday's hearing: "If you go beyond the Constitution to explain the president's power, it will be painful."

"You have given many examples of England, which is the only civilised country in the world, where the elections, transition of power take place on an unwritten constitution. There is absolutely no aberration.”

The chief justice went on that David Cameron resigned as prime minister after losing the referendum on Britain leaving the European Union.        

"How high their thoughts are!"

The attorney general disagreed with the chief justice on the matter.

He said England cannot be called a civilised because its history is one of looting. "It has protected its citizens by robbing the others," he said.

The chief justice then said he meant democracy, rule of law, fundamental rights of citizens, human rights and other such things protected by England when he described the country as civilised.

Later, the attorney general said there should be a public hearing with the justice-seekers to find out what was happening in the court.

The most senior judge of the seven-strong appellate bench, Justice Abdul Wahhab Miah, then said the attorney general could file a complaint with the chief justice if he had any specific allegation. "Have you filed any complaint until now?"

Chief Justice Sinha interjected, "I don't know what was it like before, but I can proudly say that the people's confidence in the judiciary has risen over 90 percent after I took charge.”

He said he visited a court in Chittagong's Banshkhali some days ago and was surprised by the number of justice-seekers there.

"I can firmly say that the judiciary is 100 times better than any other organisation in Bangladesh," he said.

But the attorney general again said he could not agree with the chief justice on all these matters.

"It's natural that you cannot agree," Justice Sinha said.

"The number of judges in this court should be raised. I wanted to appoint skilled, competent judges, but that has not happened. No judge was appointed in the past one and a half years. It will be like this if what you want happens."

At one stage of speaking about democracy and the rule of law, Justice Sinha said lawmakers in India obeyed court verdicts on appointment of judges and not a single word was uttered in parliament about it. While in Pakistan, the MPs and other politicians did not say anything when their Supreme Court ordered investigation into Prime Minister Nawaz Sharif's family wealth. 

“We are always critical of Pakistan but see what happens there and what reaction is there in our country after court rulings."

Attorney General Alam also said at the hearing that the issue of Supreme Judicial Council was not included in the 15th amendment because the then technocrat law minister, Barrister Shafique Ahmed, wanted the Supreme Court judges to get some benefits.    

Chief Justice Sinha disagreed.

"He (Shafique Ahmed) was elected president of the (Supreme Court Bar Association) twice. He is a very respectable gentleman. The relation between the judiciary and the executive was very good during his tenure. Do not make such comment about him and do not undermine the Supreme Court.

“And, since you are talking too much about technocrat ministers, why have you kept this provision (on technocrat ministers)? Think before using words. Bear in mind that there is tit for tat," the chief justice said.

He added that there was no scope of undermining Shafique Ahmed, the person who played the key role in constituting the International Crimes Tribunal.

"War crimes trial is a political issue,” replied the attorney general. “It was in the prime minister's (Sheikh Hasina) electoral manifesto. There is no scope of undermining the prime minister's role here. It (war crimes trial) would not have happened if it was not for her."   

"Why are you bringing in the prime minister here?" asked the chief justice.

The High Court had issued the verdict declaring the 16th amendment illegal following a writ petition filed by nine lawyers. 

Lawyer Manzill Murshid stood for the writ petitioners during the hearing on the appeal against the High Court verdict.

Referring to Tuesday's hearing, Murshid said the attorney general gave a wrong explanation of the 1972 Constitution.

"Two members of this Bar (who were members of the committee that drafted the 1972 Constitution) said that there was no prior experience when the Constitution was drafted in a newly independent country. The power to remove judges was vested in parliament at the time," he said.

"The Father of the Nation Bangabandhu Sheikh Mujibur Rahman brought changes through the fourth amendment to the constitution he made. It was the decision of Bangabandhu that the authority to remove judges should not be with parliament. The Father of the Nation amended himself had the constitution in light of his experience. Then the process to remove the judges was determined through (bringing) the Supreme Judicial Council."   

Murshid also said the attorney general's argument that the issue of removing judges was dropped from the 15th amendment due to haste was not correct.

He argued that a high-level committee was formed before the introduction of the 15th amendment. The committee had held detailed discussions with all stakeholders for one and a half years. The prime minister herself had given a speech about that amendment. She had rejected the proposal to repeal the Supreme Judicial Council system at the time.

"The prime minister had said that the judiciary is independent. The judiciary cannot be trespassed on. It proves that it was a conscious decision by the government to not include any provision on the Supreme Judicial Council in the 15th amendment," he said. 

Murshid said the attorney general undermined parliament by arguing that it had rushed to pass the amendment.

He also said 'the threat' to return the power of sacking judges to parliament was made when ideas like 'issuing summons for secretaries, refusing bail for MPs' were created.

He said the 16th amendment was brought about by misleading the prime minister in pursuance of those ideas.

He argued that Australia, Namibia, Pakistan, Bulgaria and many other countries have Supreme Judicial Council.

Speaking about Article 70 of the constitution, Murshid said this article prevents public opinion from being reflected in parliament.

"MPs cannot express their opinions independently because of this article. They fear losing membership of parliament if they go against the party line," he said.

Chief Justice Sinha, too, in Tuesday's hearing mentioned Article 70 that forbids MPs from voting against the party line in parliament as the threat of losing their seats looms over them.

He questioned the rationale for entrusting members of parliament with the powers of removing judges from their jobs.

Political parties that do not have faith in their own MPs are empowering them to remove the judges, Sinha observed.

After Wednesday's arguments, amicus curiae Barrister M Amir-Ul Islam started presenting his statement.

The hearing was adjourned until Thursday.