Lower Judiciary Control: Does president exercise powers 'unconstitutionally'?

Chief justice Surendra Kumar Sinha's remarks that the constitutional provision empowering the president to control posting, promotion, and discipline of lower court judges contradicts the basic structure of the constitution are very significant and should be taken seriously.

While speaking at a programme at the Supreme Court Bar Association on Saturday, he also said the present article 116 of the constitution that provides the president with the powers is "unconstitutional".

He hoped the parliament would scrap the provision and restore the original article of the constitution in this regard.

The chief justice's remarks merit serious considerations. Those who have taken oaths under the constitution to preserve, protect and defend the constitution and are also involved with the exercise of the powers to control the lower judiciary would do well to pause and ponder the chief justice's remarks.

 At present, President Abdul Hamid, Prime Minister Sheikh Hasina, Chief Justice SK Sinha, Law Justice and Parliamentary Affairs Minister Anisul Huq, and judges of the Supreme are among others who exercise such powers.

Article 116 of the constitution states, "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."

A simple reading of the above article suggests that the president exercises the powers only in consultation with the Supreme Court. And this may mean the prime minister, head of the government, has nothing to do with this as there is no reference to the premier in the above article.

But the reality is different. Article 116 cannot be read in isolation from the article 48 (3) that clearly says: "In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister."

Even in these two cases, the president's discretionary power is very nominal because he has no option but to appoint the leader of the majority party in parliament as the prime minister.

And in case of the appointment of chief justice, the president is expected to appoint the senior most judge of the Appellate Division.

The president therefore needs advice from the prime minister under article 48 (3) to exercise the powers of article 116.

Independence of judiciary is one of the basic structures of the constitution. This has been resolved in a number of judgements delivered by the SC in past and there is no dispute over it.

The original article 116 of 1972 constitution had empowered the SC to have full control over the lower tier of judiciary.

It was aimed at establishing an independent judiciary by keeping it free from interference by the government. And it was in line with the fundamental principle of the state policy in article 22 which speaks for separation of judiciary from the executive branch of the State.

But the fourth amendment in 1975 brought drastic changes to the constitutional provisions flipping the process in the opposite direction, by allowing the executive branch to control the lower tier of the judiciary.

The Supreme Court was denied the power to have control over the lower courts' judges including promotion, postings and disciplinary actions.

Instead, the president, who was all-powerful head of the government after the country adopted the presidential form of government through the fourth amendment, was given all these powers.

The martial law regime led by Gen Ziaur Rahman brought some changes to the constitution. His regime amended article 116 introducing a provision which said in exercise of his powers to control and discipline of persons employed in the subordinate courts, the president will consult with the SC.

These things remained unchanged even after restoration of parliamentary democracy in 1991.

Successive political governments since 1991 have done nothing to ensure separation of judiciary from the executive branch of the government.

Meanwhile, the Supreme Court delivered a landmark judgment in 1999 putting down a set of guidelines for the separation of judiciary from the executive.

Both AL and BNP-led governments in the past prayed for extension around two dozen times to implement a Supreme Court verdict to separate the judiciary form executive. This allowed admin officials to hold trials by exercising the judicial powers.  

During the past caretaker government, the lower judiciary was officially separated from the executive branch on November 1, 2007 following the SC's directives in the case known as "Masdar Hossain's Case".

Laws were amended and new rules were framed for that purpose as well. However, the constitution was not amended to ensure effective separation.

The SC on several occasions urged the government to restore the original article 116 for effective separation of the judiciary from the executive.

But when the constitution was amended in 2011, nothing much was done to ensure effective separation of the judiciary.

The AL-led government preferred to retain control over the lower judiciary by incorporating afresh in the constitution the provision introduced by the martial law regime-led by Gen Zia.

This provision, which was made through martial law proclamation and validated in the Fifth Amendment, ceased to effect as the Supreme Court scrapped the constitution's Fifth Amendment in 2010.

Nothing changed in the end. The president retains the authority. In the presidential form of government, the president could have exercised the powers on his own. After restoration of the parliamentary form of government, he needs advice of the prime minister to exercise the authority to control posting, promotion and discipline of lower court judges. He also consults with the Supreme Court.

What does the present situation mean? Do the people, who have taken the oath to preserve, protect and defend the constitution, now exercise the powers of article 116 against the basic spirit of the constitution? If so, isn't the amendment to the article 116 of the constitution flawed?

It seems there is another loophole. The current constitutional provisions provide the SC with conflicting authority to have control over the lower judiciary.

Article 109 of the constitution says the High Court, a division of the SC, will have superintendence and control over all courts and tribunals subordinate to it. But the SC is consulted by the president when the head of the state exercises his powers of article 116. This gave birth to, according to the chief justice, the so called "dual rule". This system, as the CJ said on October 30, is hampering the judicial work and increasing litigants' sufferings.

The government policymakers, without delay, should give a careful thought to the matter to remove the anomalies in article 116 as expected by the chief justice to remedy the present situation.

It has been settled globally a few hundred years ago that a country can not have a healthy democracy without ensuring effective independence of the judiciary. If we want a vibrant democracy, we have no alternative to a fully independent judiciary. An independent judiciary plays a significant role in fighting corruption, ensuring good governance and upholding human rights. The sooner the government policymakers realise this, the better it is for the nation.