The Fifteenth Amendment to the Constitution made on Thursday in the Parliament will not ensure the absolute independence of the judiciary, as an observation made by the Supreme Court was ignored.
Law minister Shafique Ahmed, speaking about the reasons for, and objectives of, the Constitution (Fifteenth Amendment) Bill 2011, said that the Bill proposed restoration of the basic character of the original Constitution framed in 1971.
However the Bill, passed by the Jatiya Sangsad, did not restore the original Articles 115 and 116 of the Constitution, which deal with the appointments to, and control and supervision of, the lower judiciary.
The Appellate Division of the Supreme Court, in its verdict that declared the Fifth Amendment to the Constitution void, which necessitated the Fifteenth Amendment, observed that the original Articles 115 and 116 should be restored.
The highest court observed in its verdict, 'However, we are of the view that...unless Articles 115 and 116 are restored to their original position, independence of the judiciary will not be fully achieved.'
'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,' said the verdict.
The Bill, however, contains no amendment to Article 115, which absolutely empowers the president to appoint judges to the lower judiciary.
Although the Bill replaces the existing Article 116 by a new one, the text of the Article has not been changed.
The existing Article 115 reads, 'Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.'
The original Article said, 'Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President — (a) in the case of district judges, on the recommendation of the Supreme Court; and (b) in the case of any other person, in accordance with rules made by the President in that behalf after consulting the appropriate Public Service Commission and the Supreme Court.'
The original Article was substituted by the existing Article by the Fourth Amendment in 1975.
The existing Article 116, the text of which remains unchanged, in its new form says, 'The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.'
The original Article said, 'The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the Supreme Court.'
It was changed through the Fourth Amendment by substituting the term 'President' for the term 'Supreme Court', empowering the president with absolute supervisory authority over the lower judiciary.
The existing provision of consultation with the Supreme Court was added by the Fifth Amendment, partially restoring the independence of the judiciary.
In its verdict the court said that the Fifth Amendment made 'partial restoration of the independence of the judiciary' which was 'curtailed by the Fourth Amendment'.
Sources in the parliamentary special committee on Constitution amendment said that the committee had initially agreed in principle to restore the two original Articles in line with the Supreme Court's verdict.
It, however, backtracked from its position as the government did not agree with its move, said the sources.
Finally the special committee recommended retention of the changes to Article 116 brought about by the constitution's Fourth Amendment and marital law proclamations. It did not say anything about Article 115.
Law minister Shafique Ahmed, however, on Thursday claimed that the independence of the judiciary would be ensured by the amendment.
Now it is not possible to restore Article 115 to its original position as other rules are related to the existing Article, and appointments and control of the lower judiciary are being made according to those rules, he said.
At present everything relating to the lower judiciary is being done in consultation with the Supreme Court and the ministry is providing secretarial support only, he claimed.
The lower judiciary was made independent of the executive branch on 1 November, 2007 following the Appellate Division's directives, which entailed amending the Code of Criminal Procedure and framing four sets of rules.
The Bill replaces the existing Article 95(1) by a new one, which says, 'The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President after consultation with the Chief Justice.'
The existing article says, 'The Chief Justice and other Judges shall be appointed by the President.'
A new Article 95(1) was substituted for the original Article by the Fourth Amendment. The amended clause had said, 'The Chief Justice and other Judges shall be appointed by the President.'
The Bill replaces the existing Article 96, which deals with the tenure and removal of the Supreme Court's judges, with a new Article.
The proposed Article 96, however, stipulates similar provisions, including the provision of the Supreme Judicial Council, stipulated in the existing Article.
The Bill substitutes the existing Article 99 by a new one, which will disqualify the Supreme Court judges from holding any office of profit in the service of the republic that is not a judicial or quasi-judicial office after their retirement or removal, but qualify a retired or removed High Court judge to plead before the Appellate Division.
It amends Article 103, allowing an aggrieved person to appeal to the Appellate Division, without any permission, against any High Court verdict that 'has confirmed a sentence of death or sentenced a person to death or to imprisonment for life'.
Source : New Age
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