Shakhawat Liton

The hope for effective separation of the judiciary from the executive branch of the state seems to have waned as it is now clear that the upcoming constitutional amendment will not restore two related articles to their original 1972 positions.

The Supreme Court in a landmark verdict on the constitution’s fifth amendment sought restoration of articles 115 and 116 to their original positions for a meaningful separation of the judiciary from executive branch.

But the constitutional amendment bill placed in the parliament on Saturday did not make any proposal to restore the two articles to their original positions, as the government seeks to retain its control over the lower judiciary, sources said.

Rather, the changes brought to these two articles by the constitution’s fourth amendment and martial law proclamations are set to remain unchanged according to the proposals approved by the cabinet.

The bill was prepared in line with the recommendations of the parliamentary special committee on constitutional amendment.

Articles 115 and 116 deal with appointments to lower courts, and control and discipline of the lower judiciary.

The original article 116 vested the control of the lower judiciary in the Supreme Court, maintaining conformity with the fundamental principles of state policy stipulated in the constitution.

The control including the power of postings, promotions and granting of leaves, and of disciplining the persons employed in judicial service, and the magistrates exercising judicial functions, were vested in the Supreme Court.

The Supreme Court had also a major role to play regarding appointments to the lower judiciary as the original 1972 constitution stipulated that district judges would be appointed by the president on recommendation from the Supreme Court, and all other civil judges and magistrates exercising judicial functions would be appointed by the president in accordance with the rules made by himself or herself in consultation with the Public Service Commission and the Supreme Court.

But the constitution’s fourth amendment passed in 1975 brought drastic changes to articles 115 and 116 pushing the matter in the opposite direction.

The amendment vested the control over the lower judiciary in the president who was also empowered to make the appointments, in effect allowing the executive branch to control the lower judiciary.

Later, a martial law regime led by Ziaur Rahman in 1978 amended the constitution through a martial law proclamation inserting a new phrase in article 116 that returned to the Supreme Court some little power regarding control and discipline of the lower judiciary.

According to this change which was later ratified by the fifth amendment passed in 1979, the president was supposed to exercise the power to control and discipline the lower courts in consultation with the Supreme Court.

But that change is no more in the constitution with the nullification of the fifth amendment by the Supreme Court.

However, it will be revived if the parliament passes the proposals made in the bill on the matter.

“Independence of the judiciary, which is one of the basic features of the constitution, will not be fully achieved unless the articles [115 and 116] are restored to their original position,” the Appellate Division of Supreme Court said in its verdict about the constitution’s fifth amendment.

“It is our earnest hope that articles 115 and 116 of the constitution will be restored to their original position by the parliament as soon as possible,” it added.

The parliamentary special committee on constitutional amendments initially agreed in principle to restore the two articles to their original positions, giving out a ray of hope for effective separation of the judiciary from the executive branch.

But later, it backtracked from its position as the government did not agree with the move, sources close to the special committee said.

Finally the special committee recommended maintaining the changes to article 116 brought by the constitution’s fourth amendment and marital law proclamations. It did not say anything about article 115.

Contacted by The Daily Star on June 18 over the phone, Law, Justice and Parliamentary Affairs Minister Shafique Ahmed however claimed the independence of the judiciary will be maintained in the upcoming amendment to the constitution.

He said now it is not possible to restore article 115 to its original position as a set of other rules are attached to its amended version, and appointments to the lower judiciary are being made according to those rules.

On restoration of article 116 to its original position, the law minister said now everything is being done in consultation with the Supreme Court. “The law ministry is now providing secretarial support. Nothing more than that,” he claimed.

The lower judiciary was officially separated from the executive branch on November 1, 2007 following the Appellate Division’s directives.

Laws were amended and new rules were framed for that purpose as well.

However the constitution was not amended to ensure effective separation.

As a result the executive branch still controls postings and promotions of judicial officials, albeit “in consultation with the Supreme Court”.

Against such a backdrop, the Appellate Division came up with the recent direction for restoring articles 115 and 116 to their original 1972 positions.

Source: The Daily Star – 27.06.2011