Constitutional court: Bangladesh perspective

[Abridge of his was published on  18 0ctober 2012 in the Financial Express, Bangladesh)

Matters related to a constitution may judicially be decided in two ways. One is by the Supreme Court itself at the same time being a constitutional court (Under this system it is the High Court that acts as the court of original jurisdiction for such matters) while other is the separate constitutional court being the court  of first instance and final resort, independent of Supreme Court. At present, more than one-thirds of 194 member states of United Nations have constitutional courts to look into the matters related to the texts of the respective constitutions. In Asia, the system exists, among others, in Indonesia, Thailand, Myanmar, China, Taiwan, Uzbekistan, Kazakhstan, Mongolia, Iran, Azerbaijan, Korea and Russia. In case of Bangladesh, it is the Supreme Court that is currently playing the role of constitutional court. Making 5^th, 7^th and 13^th Amendments null and void, inter alia, are landmark decisions of our Supreme Court in 2010 and 2011. The first historic verdict came in 1988 when Supreme Court declared the 8^th Amendment in part (setting up six permanent Benches of the High Court Division outside the capital by amending article 100 of the Constitution) unlawful and ultra vires the constitution.

Today, in the light of the overall standing of Bangladesh with a parliamentary democracy in force since 1991, creation of a constitutional court appears to be more logical and pragmatic for the reasons in specific that (a) it may act as a defender and interpreter of the texts of the constitution and its basic structures pointedly against unconstitutional act(s) of parliament. It is almost beyond doubt that most of the amendments to the constitution were made to suit the very instant purposes of the party/alliance in power on different occasions. This is really shocking for us all that our lawmakers and political leaders by and large feel free to act in their own perspectives instead of taking note of the necessity of time, space and dimension to ensure free and fair atmosphere to flourish democracy in its multi-dimensional modes and manners. Interests of the people and the country are for the most part ignored in practice; (b) such separate and independent entity of constitutional court from the fold of Supreme Court may definitely alert other public bodies to be away from taking such steps while making delegated legislation in respective hemispheres; and (c) this may also be a Himalayan presence before those who may dare to get involved in the usurpation of power unconstitutionally showing thumbs to article 7A.

A constitutional court deals primarily with constitutional law. Its main authority is to rule on whether or not laws that are challenged are in fact unconstitutional, i.e. whether or not they conflict with constitutionally established rights and freedoms.

Many countries do not have separate constitutional courts, but instead delegate constitutional judicial authority to their supreme court. Nonetheless, such courts are occasionally also called "constitutional courts"; for example, some have called the Supreme Court of the United States "the world's oldest constitutional court" because it was the first court in the world to invalidate a law as unconstitutional (Marbury v. Madison), despite it’s not being a separate constitutional court. 

It is Austria that established the world's first separate constitutional court, conceptualized by Hans Kelsen, in 1920 (though it was suspended, along with the constitution that created it, from 1934 to 1945; before that, only the U.S., Norway, and Australia had adopted the concept of judicial review through their supreme courts.

The judgments of the court are founded on the constitution, which is the supreme law of the land. They guarantee the basic rights and freedoms of all persons. They are binding on all organs of government, including the parliament, the presidency, the police force, the army, the public service and all courts. This means that the court has the power to declare an Act of Parliament null and void if it conflicts with the constitution and to control executive action in the same way.

While interpreting the Constitution, the court is needed to focus on international human rights law and may consider the law of other democratic countries. The Constitutional Court is the highest court in the land for all constitutional matters, while the Supreme Court of Appeal is the highest court for all matters which do not involve the interpretation of the constitution. The Constitutional Court has final authority to determine which matters are constitutional matters and which are not.

A constitutional court does not hear evidence or question witnesses. It does not decide directly whether accused persons are guilty or whether damages should be awarded to an injured person. These are matters for the ordinary courts. Its function is to determine the meaning of the Constitution in relation to matters in dispute. One consequence of this is that the court works largely with written arguments presented to it by the parties. The hearings of the court are intended to address particularly difficult issues raised by the written arguments of the parties.

The hearings of the court are, in most of the cases, open to the public and the press. No cameras or recorders are ordinarily permitted. The public is invited to attend all sessions. Ordinary rules of decent dress and decorum apply

The Supreme Court of Japan has been described as the most conservative constitutional court in the world. Since its creation in 1947 the court has struck down only eight statutes on constitutional grounds. By way of comparison, Germany’s constitutional court, which was established several years later, has struck down over 600 laws. The majority of the Japanese Supreme Court’s rulings of unconstitutionality have, moreover, been less than momentous (significant).The high point of judicial review in Japan is probably a 1976 decision rejecting a legislative apportionment (distribution) scheme, yet the Court refrained in that case from ordering any remedy.

In Indian perspective necessity of constitutional court is getting stronger day by day. Chief Justice of India KG Balakrishnan in an interview to the Hindu on 09 January 2010 on the occasion of marking the completion of three years in office on January 13, proposed the creation of a new ‘constitutional court’ to deal exclusively with matters relating to the Constitution, inter-State water disputes, and disputes and crimes of a ‘federal’ nature. He also held the proposed court could be the country’s third appellate one and pointed out that in South Africa there is a separate constitutional court with nine judges. Similarly the government could consider, though not in the immediate future, creation of an exclusive constitutional court here.

In Pakistan the issue of creation of a constitutional court is now almost on the top of the burning issues of the day where both the ruling and opposition political parties appear to be of the same mind and thought. Accordingly, PPP is believed to be contemplating a constitutional amendment to curtail the Supreme Court’s powers to interpret constitutional issues, and set up a new federal judicial body to deal with such matters. The proposed judicial body is likely to have the same powers as the Supreme Court when it comes to hearing constitutional petitions, like the one that caused the disqualification of Yousaf Raza Gilani.

Information Minister Qamar Zaman Kaira recently noted that establishing such a body was part of the Charter of Democracy (CoD)—a political deal between the PPP and opposition Pakistan Muslim League-Nawaz (PML-N) back in 2006 when the top leadership of both parties was in exile.

The PML-N, however, understood that while it recognized its commitment to favor the establishment of a constitutional judicial body, it would not support it at present for two reasons.

First, PML-N Information Secretary Senator Mushahidullah Khan said, the PPP must have done this at the beginning of its tenure four years ago.

“The timing makes it suspicious and not acceptable to us,” Khan said.

Second, the senator added, the move appears to have mala fide intent since it comes at a time when the executive-judiciary confrontation is at its peak.

Of the four major allied parties, at least two appear to be reluctant to endorse the government’s plan.

Therefore, the matter is still in a process of getting shape of policy between or among the political parties who have representations in National Assembly. Furthermore, the move to establish a separate Federal Constitutional Court (FCC), conversely, may aggravate the executive-judiciary tussle.

Convincingly speaking, if constitutional court is introduced in Bangladesh, it would definitely be a enterprising walk on all accounts, and have a far-reaching impact on many courts because it involves necessary amendments to several articles, clauses and sub-clauses of the constitution and the question of independence of judiciary in our unitary structure is also crucially important as a whole. It is high time for concerned quarters to look at the issue from a purely realistic point of view. To our utter surprise, nobody dares to touch it pragmatically and constitutionally. Everybody prefers to follow an evasive policy. If so is the case then the hunting question is who will bell the cat? Yes, it is parliament on which depend the life of the executive branch and the law-making of the land and then depending on these laws Judiciary takes and performs its role as interpreter in their entirety.

[Dr. Sinha M. A. Sayeed, Chairman of Leadership Studies Foundation, and Columnist, e-mail-- sinha_sayeed611@yahoo.com]