South Asia’s judiciary against the tyranny of the executive

On 3rd June, a seven-judge bench of the Supreme Court of Bangladesh, in a stinging blow to Prime Minister Sheikh Hasina’s attempt to establish one-party rule in the country, declared the 16th Amendment to the Constitution of Bangladesh that empowered the parliament to impeach apex court judges, as null and void. Upholding a previous High Court judgment, Chief Justice Surendra Kumar Sinha dismissed the appeal of the Government. In what appears to be a case of scandalising the judgment of the Supreme Court, Attorney-General Mahbubey Alam expressed his “frustration” over the judgment and invoked the 1971 freedom of struggle and Bangabandhu Sheikh Mujibur Rahman’s sacrifice to question the judgment. Samuel Johnson in 1775 is stated to have said that patriotism is the last resort of the scoundrels.

Authorising the executive or parliament to dismiss judges at the whims and fancies of the ruling party is fraud and destroys the independence of the judiciary, the only guarantee against totalitarianism. South Asia is replete with instances where political leaders, especially those with dictatorial tendencies, sought to interfere with the independence of the judiciary.

It was President General Parvez Musharaff who suspended and detained the Pakistan’s Chief Justice Iftikhar Muhammad Chaudhury on 9th March 2007 after Justice Chaudhury refused to resign on charges of undefined ‘misconduct’. Entire Pakistan was mobilised by the civil society groups, human rights activists, media, students and especially the lawyers’ community. On 20th July 2007, the Supreme Court of Pakistan restored Iftikhar Muhammad Chaudhury as the Chief Justice of Pakistan and dismissed the charges against him.

On 3rd November 2007, President Pervez Musharraf declared a Provisional Constitutional Order, which declared a state of emergency and suspended the Constitution of Pakistan and further dismissed Chief Justice Chaudhry along with sixty other judges for refusing to take oath under the Provisional Constitutional Order. However, a seven-member bench of the Supreme Court issued a restraining order on the same day, barring the government from implementing the emergency rule and urging other government officials not to help the regime. Finally, Pervez Musharraf had to step down as President of Pakistan on 18th August 2008.

The only fault of Sri Lanka’s Chief Justice Shirani Bandaranayake was to rule that the Divi Neguma Bill violated the constitution and cannot become law unless first approved by all nine provincial councils. On 13th January 2013, Chief Justice Bandaranayake was impeached by the Sri Lankan Parliament and then removed from office by then President Mahinda Rajapaksa despite a three judges bench of the Supreme Court ruling on 1st January 2013 that the Parliamentary Standing Committee (PSC) had no power to investigate allegations against the Chief Justice and the impeachment was therefore unconstitutional. On 7th January 2013, the Sri Lankan Court of Appeal had also quashed the findings of the PSC that held the former chief justice guilty. It was only after President Maithripala Sirisena assumed the office that Chief Justice Bandarnayake was reinstated on 28th January 2015.

Even in the largest democratic country, India, Prime Minister Narendra Modi-led National Democratic Alliance, which was the largest beneficiary of the independence of the judiciary that monitored the investigation into major scams of the United Progressive Alliance government, sought to muzzle the judiciary through the 99th Constitutional (Amendment) Act. In a historic ruling on 17th October 2016, a five-judge Constitution Bench of the Supreme Court led by Justice J S Khehar declared the 99th Constitutional (Amendment) Act and the National Judicial Appointments Commission as ‘ultra vires’ of the constitution. The quashed Constitutional Amendment Act and the NJAC Act had proposed that appointments of the judges in the higher judiciary be done by a six-member body, headed by the Chief Justice of India, and including two senior-most judges of the Supreme Court, the Union Law Minister and two eminent persons, who would be selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.

Maintaining the status quo, the Supreme Court of India observed that the primacy of the judiciary in judges’ appointments was embedded in the basic structure of the Constitution. The two decades collegium system prescribes appointment of judges by a panel comprising five senior-most judges of the Supreme Court and High Courts, with the power to confirm appointments despite opposition, if any, from the government.

The sensitivity of selecting judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts,” said Justice Khehar.

The judgment in as trivial as revoking the Nepal Government’s appointment of a new Inspector General of Police for violations of the existing processes and regulations led the Nepali Congress and the Communist Party of Nepal (Maoist Centre) to move an impeachment motion against Chief Justice Sushila Karki of Nepal on 30th April this year. Justice Karki was accused of encroaching prerogatives of the executive by quashing the appointment of the Police Chief. Chief Justice Karki had given a number of judgments that irked the political parties including overturning a presidential pardon recommended for Bal Krishna Dhungel, a leader of the CPN (Maoist Centre) who had been convicted of murder, and a government decision to withdraw criminal charges against individuals accused of serious crimes during Nepal’s civil war.

South Asia is dealing with political leaders such as Sheikh Hasina who have no qualms to make their rule in perpetuity obvious and willing to allow any excesses to remain in power and/or leaders like Bal Krishna Dhungel whose hands are soaked in blood. Unless independence of the judiciary is upheld by the judiciary itself, political leaders will not hesitate a bit to take away all the powers.  In countries like Maldives where the judiciary has failed to assert its independence but serves as the handmaiden of the government of the day; democracy, rule of law and the country itself continue to suffer.

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