Need for Constitutional court

A complex yet sensitive issue concerning the suitability of the Supreme Court (SC) as the guardian of the Constitution of Bangladesh, has apparently come under the lens of scrutiny amidst the ongoing discourse on the recent decision of the High Court Division (HCD) of the Supreme Court (SC) in the 16th Consitutional Amendment case. As we know, the case has retracted parliament's power to remove the judges of the SC. However, this issue is neither about the competence of the SC's to be the custodian of the constitution nor the strengths or the depths of the interpretation forwarded by the SC itself in invalidating the 16th Amendment of the Constitution. Instead, it focuses on the question: whether or not the SC was in a position to decide the issue of removal at all. From the legal perspective, the SC has the power of judicial review under Article 102(2) of the Constitution, hence, the SC had the jurisdiction to try the matter.

If construed  differently, according to Kawser Ahmed, the language of Article 102(2) may raise a question as to the authority of the SC to judicial review. However, the question is not that whether the SC is empowered to judicial review, rather it is about the suitability of the SC as the adjudicating body in a case where there is an apparent conflict of interest. Moreover, as per the principle of Nemo Judex in Causa Sua (no-one should be a judge in his own cause), the SC was supposedly not in a position to adjudicate the matter where the matter in dispute was related to removal of judges of the SC. Against this backdrop, even if the SC's decision in favor of the Supreme Judicial Council was the best possible options for the removal of judges, but here the end does not entirely rationalise the means that it is the Judges of the SC who decided which forum is appropriate for their removal.

In this context, some will seek a solution to this problem through appeal in the Appellate Division (AD). Nevertheless, this endeavour might also be frustrated in the appellate stage due to the very nature of the case which may place this apex court and its judges in a discomfited position. Therefore, in this situation, it is not pertinent to ascertain who (the Parliament or the SC) is right; rather it is imminent to explore neutral avenue to decide the matter independently and impartially without having any strings attached. This neutral and independent avenue can be created by way of establishing an independent judicial body, i.e. a constitutional court (a separate body from the SC) which will be empowered to decide all constitutional matter which include, inter alia, deciding an issue regarding constitutional validity, judicial review of administrative action, enforcement of fundamental rights, etc.

While one may see this a far-fetched idea, but the idea of constitutional court is not a new phenomenon. In fact, it traces back to the time of Hans Kelsen, who propounded a theory that introduces a concept of an independent constitutional court with the power of constitutional review within a single judicial body. In the contemporary world, most of the countries of Western Europe like Italy, Germany, Poland, France witnessed a great success by establishing a separate constitutional court to uphold their constitutional mandates and rule of law. Moreover, almost all the new democracies in Eastern Europe (except Estonia) have a separate constitutional court besides the higher judiciary.

Among the above mentioned countries, some of the notable instances of the independent constitutional court can be found in Russia, France. The Constitution of Russia introduces two patterns of court system: (i) ordinary court system comprising the Supreme Court of Russia and other subordinate courts; and (ii) constitutional court system allowing the Constitutional Court of Russia to deal with matters concerning conformity with the Constitution independently. Thereby, Russia has developed constitutional review as a concept which is different from judicial review.

Apart from Russia, France established the Constitutional Council (in 1958) as the highest constitutional authority through the Constitution to interpret the fundamental meanings of the constitution, procedure, legislation, and treaties. Since then, the Constitutional Council has been considered as a separate, independent authority apart from other subordinate and superior court. These instances demonstrate that a separate constitutional court is not just a thematic notion rather an effective avenue to deal with constitutional matters; one that can also prove to be effective in Bangladesh. 

In the context of the 16th Consitutional Amendment case, it is undeniable that a momentary state of distrust and unreliability between the core organs has occurred, which is not healthy for any State with liberal democratic ideals, specially the one like Bangladesh. Hence, if the key organs do not work in concert with one another, the constitutional aspirations of establishing an ideal and liberal society will remain an empty rhetoric. As such, while it is understandable that the establishment of constitutional court may require some time to become operational, however, that does not preclude its indispensability to resolve stalemate situations like in one that arise between the parliament and the judiciary of Bangladesh.           

The writers are Lecturers at the Faculty of Law, Northern University Bangladesh.