।। G.M. Quader ।।
Constitution of Bangladesh in its present shape consists of Beginning verses, a Preamble, Eleven Parts and Seven Schedules (out of that second schedule is omitted). It has articles from 1 to 153 serial and some corroborate additional articles identified in conjunction with alphabets.
The Second Para of the Preamble mentions about the fundamental principles of the Constitution. It says, “Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives, in the national liberation struggle, shall be the fundamental principles of the Constitution.”
Article 109 refers to Superintendence and control over courts and says, “The High Court Division shall have superintendence and control over all courts and tribunals subordinate to it.” (Part VI, The Judiciary, Chapter I-The Supreme court)
Article 116 refers to control and discipline of subordinate courts and 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.” (Part VI, The Judiciary, Chapter II-Subordinate Courts)
Under a careful scrutiny it becomes evident that article 116 contradicts article 109 above. Article 109 provides for ‘Superintendence and control’ responsibility to High Court Division over all other subordinate courts and tribunals. Article 116 vests similar function to the President.
In addition, article 116 has allowed President the authority for taking certain definite actions necessary for establishing effective control over lower courts. President has an obligation to consult with Supreme Court. But only being informed or expressing their views which may not be accepted does not provide Supreme Court enough leverage to be effective. It is a well known fact that responsibility without authority is meaningless. Only authority can establish control and allow performing responsibilities successfully. To perform similar responsibilities, President has been clearly vested with authority and High Court has not. So, in presence of article 116, it is not possible for High Court to be effective in establishing superintendence and control over its subordinate courts as is envisaged by article 109. President is well in charge in these matters.
Article 48(3) states, “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:”….( Part IV, The Executive, Chapter I-The President)
Provision of Article 48 (3) as mentioned above specify that for all matters excepting appointment of Prime Minister (PM) and Chief Justice (CJ), President shall have to act as per advice of the PM. So, President being in charge for all the subordinate courts having the authority of control and discipline of all persons employed in judicial service and magistrates exercising judicial functions, in effect allows the PM to do the same.
Article 55 (2) is “The executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister.” (Part IV-The Executive, Chapter II- The Prime Minister and the Cabinet). This means PM is the chief of executive. So, putting subordinate courts under the control of PM is the same as placing it under executive branch which is the ultimate outcome of article 116.
Above contradicts with one of the fundamental principles of State Policies, Article 22- ‘Separation of judiciary from the executive’. It says, “The State shall ensure the separation of the judiciary from the executive organs of the State.” (Part II- Fundamental Principles of State Policy)
Constitution is the outcome of a long struggle for liberation which ultimately culminated to war of independence and the creation of “People’s Republic of Bangladesh”. Innumerable people suffered, made supreme sacrifice and had to contribute whatever way possible but could never be pushed away from their determination to achieve the desired goal. Constitution provides the fundamental legal guidelines to be followed in overall governance. It is essential that this should represent the hopes and aspirations of people. There could be amendments to the constitution under changed circumstances. That too should reflect the desire of public. But, in case there is inconsistency in Constitution, it can make the nation wandering and drifting towards an unwanted course. To avoid that possibility, contradictions if any in the Constitution, should be resolved if necessary in line with expectations of citizens.
The writer, a former minister of commerce and minister of civil aviation and tourism, is MP and the current chairperson of Jatiya Party. Email: gmquader24@gmail.com
