[This was published in two
installments in Dhaka Courier respectively on 19 October and 09 November 2012]
The very intent of this write-up,
which is conceptually and contextually an extension of the author’s earlier
piece under the same title published in the Financial Express on 23 June 2012,
is to show and highlight the countries where the role of the Chief of judiciary
called Chief Justice is also extended to the domain of leading a government and
state under certain circumstances defined and determined by the respective
constitutions. Hence, there is nothing in the article to view obliquely the
verdict of the Appellate Division of the Supreme Court of Bangladesh on the Constitution
(Thirteenth Amendment) Act of 1996, declaring it void and ultra vies the
Constitution followed by the cancellation of the amendment by the Constitution
(Fifteenth Amendment) Act of 2011.
Functions of a Chief Justice in a
modern state are not merely confined to the four walls of Judiciary and in the
context of time, space and dimension such ambit has in the meantime crossed the
so-called line of demarcation of the highly-talked-about concept of separation
of powers since there is a consensus in politics and political science that
strict separation of powers between or among the three branches of government
both theoretically and practically is neither possible nor desirable. Truly
speaking, government is an organic whole and, hence, there must be necessary
coordination and overlapping between or among its three wings for the greater
interests of state and people whether the state is developed, developing or
underdeveloped. But in all cases maximum cautions are to be taken and ensured
so that such necessity may not have any leakage and loophole, which may put the
holder of the office of the Chief Justice (or Judges) in such a position that
may cause serious damage to the overall image, prestige and goodwill of the
office of Chief Justice otherwise. Hence, comes here a proposition that the
door of the Highest Court
should not be closed for an indefinite period of time or forever when its
services are urgently needed for the interest of the nation otherwise.
Out of such spirit and reality in
proper perspectives, yes, constitutional conventions or provisions have for now
been made available in a number of countries in the contemporary world so as to
enable the Chief Justice of the land concerned (or in her or his absence, in
some cases, senior most Judge of the Supreme Court) to take over as Acting Head
of State in the normal course of functions or Head of Care-Taker Government
(during the period of elections to Parliament in particular). Few examples may
be illustrative in this regard
Presidential line of succession in Srilanka, as specified by the
Constitution is:
Prime Minister, in absence of her or
him Speaker of the Parliament, in absence of her or him the Chief Justice;
The British Sovereign is also the
Sovereign of certain other Commonwealth
Realms meaning a sovereign state within the Commonwealth of
Nations that has Elizabeth 11 as
Head of State. At
present there are 15 Commonwealth Realms--- Antigua and Barbuda, Australia, the
Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New
Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines,
the Solomon Islands and Tuvalu. Each of these nations is a separate monarchy;
the Sovereign therefore holds sixteen different crowns. In each nation, the
Sovereign is represented by a Governor-General, who is bound by conventions
just like the Sovereign is. The Governor-General, therefore, only acts on the
advice of ministers. The local government, not the British government, advises
the Governor-General.
In the Commonwealth Realms the Administrator of the Government (often
shortened to Administrator) is
the person who, though acting in a gubernatorial capacity, is not given the
title of Governor (or Governor-General or Lieutenant-Governor). In crown
colonies, the person is normally known as the Officer Administering the Government.
The process for selecting
Administrators is not uniform within the Commonwealth, but in most
jurisdictions the default Administrator is the Chief Justice or another senior
member of the judiciary.
In most of the sovereign realms
Chief Justices are included in the Governor-General’s line of succession. For
examples, it’s a constitutional convention in Canada
that in absence or incapacitation of Governor General, the Chief Justice of
Canada will take over as Administrator (Acting Governor-General of Canada), or
in his absence the senior puisne judge of the Supreme Court of Canada
The Chief Justice of Australia often acts as the Governor-General's
deputy, especially at ceremonies such as the opening of Parliament after an
election;
In the Commonwealth of Australia the Administrator, usually called the Administrator of the Commonwealth, is
by convention the longest-serving state Governor.
In the states of Australia,
executive authority generally passes to the Lieutenant-Governor, and in the
absence of the Lieutenant-Governor, to an Administrator, who is by default the
Chief Justice of the Supreme Court or the next most senior justice. In many
states the Chief Justice is the Lieutenant-Governor.
In New Zealand
the Letters Patent provide for an order of succession if the Office of
Governor-General is vacant or the Governor-General is incapacitated, outside
the country or otherwise unable to perform his or her duties.
This "acting
Governor-General" is known as the Administrator of the Government.
First in line of succession is the Chief Justice followed by the next most
senior member of the New
Zealand judiciary.
The Administrator is required to
take an oath similar to the Governor-General and may exercise all of the powers
of the Governor-General
The Brazilian Federal Constitution establishes that a Vice-President
succeeds as President of the Federal Republic of Brazil when the elected
President is out of the country or dies, resigns or is removed from office or
is suspended due to impeachment proceedings. The other officers in the line of
succession are the President of the Chamber of Deputies, the President of the
Federal Senate, and the President of the Supreme Federal Court, in that order, but
those other officers do not succeed to the presidency as a Vice-President
would. Instead, they merely serve as Acting President.
Chief
Justice of Bolivia
is the third in the presidential line of succession after the President of
Senate and Speaker of the Lower House of Parliament in accordance with the
relevant provision (s) of the Constitution of Bolivia.
The Presidential line of succession,
as specified by the Constitution 2010 in the article 129 of the constitution of
Dominican Republic is Vice-
President and President of the Supreme Court of Justice.
In Ireland
the presidential line of succession is that in a vacancy or where the President
is unavailable, the duties and functions of the office are carried out by a Presidential Commission, consisting of
the Chief Justice, the Ceann Comhairle (speaker) of the Dáil, and the
Cathaoirleach (chairperson) of the Seanad. Routine functions, such as signing
uncontentious bills into law, have often been fulfilled by the Presidential
Commission when the President is abroad on a state visit. The government's
power to prevent the President leaving the state is relevant in aligning the
diplomatic and legislative calendars.
Technically each president's term of
office expires at midnight on the day before the new president's inauguration.
Therefore, between midnight and the inauguration the following day the
presidential duties and functions are carried out by the Presidential
Commission. The constitution also empowers the Council of State, acting by a
majority of its members, to "make such provision as to them may seem
meet" for the exercise of the duties of the president in any contingency
the constitution does not foresee. However, to date, it has never been
necessary for the council to take up this role.
Vacancies in the presidency have
occurred three times: on the death of Erskine Hamilton Childers in 1974, and on
the resignations of Cearbhall Ó Dálaigh in 1976 and Mary Robinson in 1997.
The office of Vice-President in Argentina was established by the 1853 Constitution
for the purpose of providing a succession in case the President is unable to
complete its term. The Argentine Constitution (art. 88) entitles the
Vice-President to exercise the role and duties of the President, both in the
case of a temporary absence and in the case of a permanent absence due to
health reasons, death, resignation or removal.
In the absence of both the President
and the Vice-President, the succession is regulated by the Law 20,972 ("Acephaly Law’). It provides that the
Executive Power must be temporarily exercised (without assuming the title of
President) by the provisional President of the Senate. In his or her absence,
by the President of the Chamber of Deputies and In the absence of both, by the President of the Supreme Court.
Chief Justice of Haiti
comes next to the Vice-President of Haiti in line with the succession of
President of Haiti.
In Suriname
the executive line succession flows from the president to the Vice- President
to the Speaker of the House to the President Pro-Tem of the Senate to the Chief
Justice of the Supreme Court.
Careful attention may be drawn to
the landmark constitutional provisions In India,
the largest multi-party democracy in the world, where the President’s
(Discharge of Functions) Act 1969 of India,
first of its kind in the history of the republics of Commonwealth, notes
that in case of vacancies of both the offices of the President and Vice
President of India, Chief Justice or in his absence senior most Judge of the
Supreme Court of India shall take over as Acting President of India. The
section 3 of the Act reads as follows:
3. Discharge of Presidents functions contingencies.
·
1)
In the event of the occurrence of vacancies in the offices of the President and
the Vice-President, by reason in each case of death, resignation or removal, or
otherwise, the Chief Justice of India or, in his absence, the senior most judge
of the Supreme Court of India available shall discharge the functions of the
President until a new President elected in accordance with the provisions of
the constitution to fill the vacancy in the office of the President enters upon
his office or a new Vice-President so elected begins to act as President under
article 65 of the constitution, whichever is earlier
·
2)
When the Vice-President, while discharging the functions of the President,
dies, resigns or is removed or otherwise ceases to hold office, the Chief
Justice of India or, in his absence, the senior most Judge referred to in
sub-section (1) shall discharge the said functions until the President resumes
his duties or a new Vice-President is elected as aforesaid, whichever is
earlier.
(3) When the Vice-President
* (a) While acting as President,
or
·
(b)
While discharging the functions of the President, is unable to discharge the
functions of the President owing to absence, illness or any other cause, the
Chief Justice of India or, in his absence, the senior most Judge referred to in
sub-section (1) shall discharge the said functions-
·
(i)
In the case referred to in clause (a), until a new President elected as
aforesaid enters upon his office or until the Vice-President acting as
President resumes his duties, whichever is earlier;
·
(ii)
In the case referred to in clause (b), until the President resumes his duties
or the Vice-President resumes his duties, whichever is earlier.
(4) The person discharging the
functions of the President under this section shall, during, and in respect of,
the period while he is so discharging the said functions, have all the powers
and immunities and privileges as may be determined by Parliament by law and,
until provisions in that behalf is so made, such emoluments, allowances and
privileges as are specified in the Second Schedule.
In pursuance of this the then
sitting Chief Justice of India Mr. Hidayatullah took over as Acting President
of India on 20 July1969 being ex-officio Chief Justice of India in the wake of
the Acting President V.V. Giri’s resignation from the office of the
Vice-President of India and continued till the Presidential Elections were held
and a newly elected President assumed office on 24 August 1969.
Interestingly enough, 17th
amendment to the Constitution of Pakistan
accorded the Supreme Court of Pakistan a unique power to act as arbiter to
decide the finality of the dissolution of National Assembly of Pakistan by the
President. In 2003, the
newly elected National Assembly, validating the Martial law regime of General Pervez
Musharraf passed the
Constitution (Seventeenth Amendment) Act, 2003. This amendment, inter alia, in
order to give weight to the office of the President revived the sub-clause (b)
in clause 2 in the article 58 of the Constitution of Pakistan in an amended
form with a cheek on the use of President’s ‘Reserve power’ or discretion to
dismiss the Prime Minister (also calling for a new election) subjecting it to
the Supreme Court’s approval or veto within thirteen days of the dismissal. In
the language of the Constitution it reads as follows:
‘The
President in case of dissolution of the National Assembly under paragraph (b)
of clause (2) shall, within fifteen days of the dissolution, refer the matter
to the Supreme Court and the Supreme Court shall decide the reference within
thirty days whose decision shall be final".
Despite
storm of criticisms at home and abroad, it was also hailed by many as a kind of
sustainable approach for
creating a balance of power between President and Prime Minister with the
Supreme Court of Pakistan as the final watchdog. As a part
of its electoral promise PPP Government scrapped it by the Constitution
(Eighteenth Amendment) Act of 2010, although, in the overall political
landscape of Pakistan, the role of the Supreme Court of Pakistan, especially
the role of the current Chief Justice Iftikhar Muhammad Chaudhry,
one may agree or not, still appears to be formidable or remains so otherwise
for reasons, known or unknown. Some even claimed that the amendment initiated a harmonious balance
between the three organs of government within the fold of parliamentary system
in Pakistan’s
perspective and it should indeed be weighed as new approach to parliamentary system of government
Article
37(2) and (3) of the
Constitution of Greece (The Fifth Revisionary Parliament of
Hellenes) state:
·
The
leader of the party having the absolute majority of seats in Parliament shall
be appointed Prime Minister. If no party has the absolute majority, the
President of the Republic shall give the leader of the party with a relative
majority an exploratory mandate in order to ascertain the possibility of forming
a Government enjoying the confidence of the Parliament.
·
If
this possibility cannot be ascertained, the President of the Republic shall
give the exploratory mandate to the leader of the second largest party in
Parliament, and if this proves to be unsuccessful, to the leader of the third
largest party in Parliament. Each exploratory mandate shall be in force for
three days. If all exploratory mandates prove to be unsuccessful, the President
of the Republic summons all party leaders, and if the impossibility to form a
Cabinet enjoying the confidence of the Parliament is confirmed, he shall
attempt to form a Cabinet composed of all parties in Parliament for the purpose
of holding parliamentary elections. If
this fails, he shall entrust the President of the Supreme Administrative Court or of the holding
parliamentary elections. If this fails,
he shall entrust the President of the Supreme Administrative Court or of the
Supreme Civil and Criminal Court or of the Court of Auditors to form a Cabinet
as widely accepted as possible to carry out elections and dissolves Parliament.
In line with this a
non-political caretaker government headed by Justice Panayiotis Pikramenos, the
President of Council of State (the Supreme Administrative Court of Greece) was installed in Greece
on 17 May 2012.
The failure of Greece's
wrangling political parties to form a coalition government in the wake of the
stalemated May 6th elections has led President Karolos Papoulias to put the
country in the hands of a caretaker administration until new polls on June
17th. Its duration accordingly ended after the election with the constitution
of new Parliament and government on 20 June 2012.
In Bangladesh perspective ASM Sayem, then Chief Justice of
Bangladesh, was made President and Chief Martial Law Administrator on 6
November 1975 after the exit of President Khondaker Mostaq, who assumed the
office of the President after the change-over of 15 August 1975 through the
assassination of the father of the nation Bangabandhu Sheikh Mujibur Rahman and
in 1982 former Justice of the Appellate Division of the Supreme Court
Ahsanullah Chowdhury was made CMLA when Martial law was declared for the second
time in independent Bangladesh. In both the cases Judges, sitting or former,
were used by the military regime behind the scene.
On 06 December1990 Shahabuddin
Ahmed, then Chief Justice of Bangladesh, took over as the Acting President of
Bangladesh to head a Non-Party, Neutral CTG for creating a just and congenial
atmosphere for holding free and fair elections to the 5th Parliament
conducted by the Election Commission independently. This happened because of
the seven points consensus formula between or among the political parties in Bangladesh.
Later, after the elections, Constitution (Eleventh amendment) Act of 1991 was
made to confirm and validate the Chief Justice Shahabuddin’s taking over and
discharging functions as the Acting President of Bangladesh and his reverting
to the office of the Chief Justice of Bangladesh.
On 28 March 1996 a Non-Party,
Neutral Care-Taker Government was passed and put into operation by the
Constitution (Thirteenth Amendment) Act, 1996 where provisions were made under
article 58C (3) and (4) of the so that former Chief Justices or in case of
non-availability of any past CJ last retired Judges of the Appellate Division
of the Supreme Court of Bangladesh available would be in a position to head the
Con-Party, Neutral CTG during the period of elections to Parliament.
In both of the cases, sitting CJ and
past CJs or Judges of the Appellate Division of the Supreme Court were
entrusted with the office of the Head of state or head of non-party, neutral
CTG without intervention by the military. But in the context of Bangladesh
discharge of functions as Head of non-party, neutral CTG(under Parliamentary
System of Government, which was introduced by the Constitution (Twelfth
Amendment) Act, 1991) by the past CJs generated a lot of perplexing questions
about their fairness and impartiality, which was fomented mainly by the reasons
(a) Judiciary became victim of politicization and (b) suppression and
supersession of seniority started taking place on political ground and
allegiance instead of merit, competence and integrity as a whole. The matter
became ugliest one when it was experienced that the ruling party preferred such
supersession in the Appellate Division targeting the office of the head (Chief
Advisor) of the Non-Party, Neutral CTG for which the overall standing and image
of Judiciary, especially of the Supreme Court met with an acute crisis. From
this very standpoint, when the Constitution (Thirteenth Amendment) Act of 1996
was declared unlawful and ultra vires the Constitution by the seven-member full
bench headed by the Chief Justice ABM Khairul Haque on 10 May 2011, the matter
of the involvement of the past CJs or past senior Judges of the Appellate
Division of the Supreme Court as Chief Advisor of CTG was also seriously taken
care of.
In its brief verdict the Supreme
Court said, "The Constitution (Thirteenth Amendment) Act, 1996 (Act 1 of
1996) is prospectively declared void and ultra vires the Constitution."
"The election to the Tenth and
the Eleventh Parliament may be held under the provisions of the above mentioned
Thirteenth Amendment," it said.
"The parliament, however, in
the meantime, is at liberty to bring necessary amendments excluding, the
provisions of making the former Chief Justices of Bangladesh or the Judges of
the Appellate Division as the head of the Non-Party Care-taker
Government," the verdict added (Daily Star, May 11,
2011).
Following this
verdict of the SC Hasina administration that acquired a brute majority of 230
seats in the 9th Parliament, instead of preferring the retention of
and continuance with the system of CTG for another two terms, straightway
scrapped the Constitution (Thirteenth Amendment) Act of 1996 that contained the
provision for Non-Party, Neutral CTG by the Constitution (Fifteenth Amendment)
Act of 2011. This issue has been put at rest keeping CTG for another two terms
covering 9th and 10th Parliament through the publication
of the full judgment on 18 September 2012 after the passage of sixteen months
from the very day of the declaration of the short judgment on 10 May 2011. Here
our concern is involvement of Judges or Chief Justices in CTG, not the on the
focus of CTG otherwise.
There is no
‘final word’ in politics. So, despite all the negative stands of Hasina-led
Grand Alliance Government, if there ever comes any CTG in line with the verdict
of the Supreme Court that shall definitely be framed excluding the provisions of making the former
Chief Justices of Bangladesh or the former Judges of the Appellate Division of
the Supreme Court as the head of the CTG. BNP-led
opposition inside and outside the current 9th Parliament meanwhile
also welcomed such exclusion, although they remain rigid in their demand for
the restoration of CTG for another two terms as outlined by the Court. With
this, unlike other democratic countries in the world, use of the highest
offices of Judiciary either as head of state(There is now no visible scope to
place the Chief Justice or any Judge, past or present, of the Appellate
Division of the Supreme Court as head of
CTG, if any or as Chief Martial Law
Administer (CMLA) in Bangladesh perspective since usurpation of power by the
armed forces has also been declared unlawful and punishable by the Court and
necessary provisions to this effect have been added to the relevant articles
and clauses by the Constitution(Fifteenth Amendment) Act, 2011.
Nevertheless,
to speak the truth, a significant asking hunts even the very mind of a layman
that ‘if the blast of politicization appears to be factors under today’s
prevailing circumstances then what will happen when the overall phenomenon
shall get changed tomorrow putting the Judiciary on the non-political
foundation in the proper sense of the term where the role of the Chief Justices
or Judges of highest Court, past or present, in particular shall be recalled
with pride and gratitude?
So, the
teaching and lesson of logic, fairness, truth and justice remind us again of
the maxim ‘where there is a head there must be a headache’. Therefore, chopping
off head is not a solution because if there is no head, there cannot be an
existence of life but where there is life, head and headache there must be
activity, which is a condition precedent for any sustainable entity. Law is
dynamic and living by nature and, hence, interpretations of law in its various
modes and fashions entailing literal, golden and mischief rules plus
teleological approach should also be in line with this reality. Certainly, with
due care for and attention to the ongoing definitions of ‘contempt of Court’,
which is now exclusively a matter,
concern and jurisdiction of the Court, let us feel free to encourage our
icons in the Judiciary so that they may go ahead of time and thus stand by the
nation like a philosopher, friend and guide. Let us be stick to the proposition
that the impartial, fair and transparent image of the persons in the
administration of Justice may also be needed otherwise if the nation and the
state feel so urgently. Yes, this very door should not be closed sine die
leaving the population in distress and dismay. Since people are the source of
all powers and article 7 has pointedly contained and upheld this truth going
beyond any ambiguity and be wilderness, let then this supremacy of the people
be reflected as and when required for their greater interest. This is not
merely a question of heading CTG rather it is a question of ‘filling in the
blank’ in time of a necessity as are made obtainable in other democratic
orders.
Therefore, a
plain asking crops up further is there any possibility or scope to open a door
to revisit the issue of involvement of past Chief Justices or past Judges if
the very matter is placed for ‘Review”?
Answer is no because (a) this does not fall within the ambit of review at all
and (b) full judgment made it obligatory by means of a direction that such
government should be composed of MPS.
Finally, will
the boarder interpretation of this verdict include Judges’ or Chief Justices’,
past or present,’ involvement in other areas of the administration? It should also be made clear without a fail
and delay. One should not be forgetful of the great adage that ‘justice may
be blind but judges are not’. If the reverse ever takes place then justice has
every possibility to lean towards becoming vigilant that may give birth to lot
of complexities in case of being carried out blindly. Therefore, the question
is who will ring the bell? Is it Judiciary or Parliament? Or is it President who upon a request by the
Prime Minister may seek an opinion of the Appellate Division of the Supreme
Court by a reference under article 106? Whoever it is, there must be a
solution. Let there be light, more and more light in the life and firmament of
the Judiciary in Bangladesh.
No comments:
Post a Comment