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STRAIGHT LINE

The Court and the Parliament

Muhammad Nurul Huda
The seeds of the doctrine of separation of state powers were sown in earlier times. This reflected the need for government according to and under the law. In other words, there was a requirement for some degree of separation offunctions between the institutions of the state.***
THE Daily Star reported that the current parliamentary session may witness a heated discussion on a recent High Court verdict delivered in response to the Speaker's dubbing the comments of an HC judge as a violation of the constitution. To put things in perspective, Speaker Abdul Hamid said in Parliament, on lune 18, that the HC judge had violated the constitution by making "derogatory remarks" about the latiya Sangsad and its Speaker. Later, on July24, Justice Hasan Foez Siddique and Justice A.B.M. Altaf Hossain in a judgment said the Speaker's observation had no legal effect and was baseless in the eye of law. The origin of the row can be traced to May 29 last when the Speaker told the House that the courts were neutral and independent but it looked odd when they took quick decisions to solve their own problems while people had to wait for years for justice. He added that the day would come when people would stand against the courts. Consequent to the above the HC justice observed on June 5 that the Speaker has committed an offence tantamount to sedition.
Mr. Suranjit Sengupta, MP, a senior parliamentarian said: "The verdict on July 24 hurt the MPs' sentiment. So it is difficult to prevent them from speaking on it." He also said that while the judiciary is independent the parliament is supreme and sovereign and all concerned should take note of that.
In fact, the honourable members of parliament have already spoken and in very strong language. In a heated debate the lawmakers accused two High Court judges of violating the constitution and demanded that they be removed for delivering a controversial judgment on the Speaker's June 18 ruling. The members of parliament have questioned the very competence of the High Court justices.
Terming the Speaker's ruling a legislative judgment, Mr. Suranjit Sengupta, MP said that a Supreme Court judgment can be reviewed, but not a legislative judgment. He added that "if the Speaker's ruling does not exist as per the Court's verdict, parliament does not exist either. If parliament does not exist, the judiciary too does not exist and neither do the judges."
So a question arises as to which organ is supreme and sovereign, what is the constitutional position? The fact is that the constitution itself is framed and approved in the parliament and all the state organs are creatures of the constitution. Then again the apex judiciary interprets the supreme document, that is, the constitution. It is quite relevant to note that when a dispute arises regarding a point of law the matter is referred to the Supreme Court for clarification. The president of the republic solicits the considered view of apex judiciary in contentious subjects. The president, the head of the state, is administered the oath of office by the head of judiciary. Under the circumstances one may like to know if the mentioned legislative judgment in the form of Speaker's ruling can be invalidated by the judiciary.
Academically speaking, quite an interesting scene is unfolding wherein two vital organs of the state have differing views on questions of legality.
For general readers who are not well-versed in law it may be relevant to know that the seeds of the doctrine of separation of state powers were sown in earlier times. This reflected the need for government according to and under the law. In other words, there was a requirement for some degree of separation of functions between the institutions of the state.
Beyond our shores, in the birthplace of modern parliamentary democracy, "the queen in Parliament is the sovereign law making body within the United Kingdom. Formally expressed, Parliament comprises the queen, House of Lords and House of
Commons."
The judiciary in UK is "that branch of the state which adjudicates upon conflicts between state institutions, between state and individual and between individuals. It is the feature of judicial independence which is of prime importance both in relation to government according to law and in the protection of liberty of the citizen against the executive.''
It is interesting to note that the executive quite often appoint judges as chairmen of tribunals of enquiry. This is unsurprising because judges are equipped by training and experience to review evidence with impartiality and rigour and to present findings in a logical manner. However, to place judges in the position where criticism is likely to ensue is to create the possibility that their independence and impartiality would be damaged.
Some academic constitutional authorities either deny, or minimise, the relevance of the doctrine of separation of powers under the United Kingdom's constitution by commenting that "if there is a separation of powers, it is unclear what it is that is separated, since the notions of 'legislation,' 'adjudication,' and 'execution’ have not proved capable of precise definition."
Interestingly, it has been judicially asserted by Lord Diplock that "it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers: parliament makes the laws, the judiciary interprets them."
Sir John Donaldson MR stated: "It is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of parliament over the judicature."
In UK "the concept of separation of powers offers the judiciary a protective device both for the protection of the independence of the judiciary and against allegations of judicial intrusion into matters more appropriate to parliament or the executive. The reluctance of judges to be drawn into such matters is reflected particularly strongly in relation to matters of the royal prerogative and parliamentary privilege."
Mahmudul Islam, Senior Advocate, Supreme Court of Bangladesh, observes in Constitutional law of Bangladesh: "Judiciary is within its jurisdiction to bring back Parliament and the executive from constitutional derailment and give necessary direction to follow constitutional course by making or amending laws or rules. When there is a constitutional deviation in legislative measures, the Court can declare such legislative measures to be ultra vires, but cannot give a direction to repeal or modify it."
The separation of powers is a principle respected under the constitution which exerts its influence on each of the fundamental institutions of the state. The government has appealed against the High Court observation in question and the matter is slated for hearing on September 30. Wisdom perhaps lies in the comments of Speaker Abdul Hamid who, at the end of discussions in parliament, observed: "I hope that everybody will be able to live in their respective positions with due dignity and rights."
The writer is a columnist of The Daily Star.