The basic structure doctrine is one which preserves the principles of the Constitution that effectively devises the ways in which the nation is expected to build itself. However, at the end of the day, the basic structure doctrine is one of abstractive value. While it should be recognised that principle of the independence of the judiciary speaks not only to one of the basic structures of the Constitution of Bangladesh, but also to a principle enshrined in many constitutions across the world, it ought to be noted that at the end of the day the application of the principle is based on abstraction and is a principle that was presumably in the mind of the constituent assembly during the construction of the constitution itself.
In the event that a recommendation regarding the confirmation of a Justice of the Supreme Court (High Court Division) proposed by Chief Justice of Bangladesh to the Hon’ble President of the People’s Republic of Bangladesh is not fully affirmed, there are a number of things to consider. To address this matter, it is important to analyse the text of the Constitution that delineates these powers to the office of the President.
In Article 51 of the Constitution, the matter is effectively defined. The President is not answerable to the Court in the exercise of his duties. Among his duties, according to Articles(s) 94, 95 and 98, is the duty to confirm the appointment of judges to the High Court Division of the Supreme Court. If we are to follow the letter of the law, the prescription of Article 51 is clear in that the President is not answerable to the Court in the exercise of this duty. However, per Article 48, the President is expected to act in accordance with the advice of the Prime Minister. Additionally, this provision prescribes that this advice is ultimately privileged communication that the Court has no authority to investigate. As such, the President is allowed to act in accordance with his conscience and wisdom to choose to affirm only those they deem fit to execute the duties for which they are appointed. Therefore, by Constitutional authority, it is the prerogative of the President to act as they deem fit in the execution of such duties.
While it is noteworthy that in disregarding the recommendation of the Chief Justice in appointment of judges, there is the potential for threat to the independence of the judiciary, it is also equally true that the Constitution in its grand wisdom permits this specific effect. It is, however, important to recognise two facts. First, the preservation of judicial independence is a fundamental and basic structure of the Constitution, and deserves the utmost reverence. However, the mode that this preservation could take place is ultimately debatable. Second, the letter of the Constitution, which by virtue of Article 7 is supreme to all, is thus superior to any abstract principle. Assuming that the constituent assembly was aware of the principle of judicial independence when articulating the functions of the office of the President and the functionality of the Supreme Court, and the office of the Chief Justice, the letter of the Constitutional text must be assumed to be the intended will of the Constitution. In effect, considering that no part of the Constitution is deemed inferior to any other (a principle opined on by H.M. Seervai in his seminal text on the Constitution of India), it is important to realise that the basic structure doctrine, or the abstraction of the principle of judicial independence, cannot take precedence over the prescribed text enshrined in the Constitution.
To this effect, it is presumed that the constituent assembly, in its wisdom, was cognizant of this basic structure, but still enshrined Article 48, which enshrines that the advice of the Prime Minister on which the President relies in the execution of his duties, including the appointment of judges, is privileged communication, not to be investigated by any court. Hence, this court, or any other, is unable to challenge any such decision. However, by virtue of Article 52(2), any such decision may be referred to a Court, or any such body as the parliament deems fit, by the parliament. Considering the text of Article(s) 48 and 52(2), the privilege communication may be investigated only if the parliament deems it to be appropriate.
So, in the event that a recommendation of the appointment of an individual to the Supreme Court (High Court Division) is disregarded, the office of the Chief Justice has no other recourse but to merely seek clarification from the office of the President. In such a case, the office of the President is not bound to respond in detail, but in the event that they do not do so, the office of the Chief Justice is fully within their authority to refer the event to the Parliament and seek an investigation into the matter. Only if the Parliament deems such an investigation to be fit, they may choose to enquire this matter with the office of the President.
In maintaining this course of action, three core benefits are accrued. First, the letter of the Constitution is not undermined by a possible interpretation of a principle that is abstracted on to the Constitution itself. Second, the integrity of the office of the President is preserved, while paying heed to the need for judicial independence. Finally, this returns the ultimately power of arbitration of the matter on to the Parliament, in recognition of parliamentary sovereignty – effectively returning the power of such arbitration to the representation of the collective will of the people of Bangladesh.
Ultimately, this is a compromise. This does still create avenues for judicial independence to be impeded by the whims of the office of the President and potentially, the office of the Prime Minister, who ultimately may have political motivations. However, the Constitution as it stands, is superior to any will or vision any other body may strive towards. Hence, any decision on the matter must be in accordance with the existing provisions of the Constitution. Perhaps a revision of the procedures regarding such matters is well due; but at this juncture, the letter of the Constitution must prevail.
ABOUT THE AUTHOR
Ahmed Shafquat Hassan is PhD Candidate at Durham Law School. He was a Research Associate at the Centre for Peace and Justice, BRAC University and a member of the Global Advisory Board for Mazletov, a youth-led public policy think tank. Shafquat is a LLM (International Law and Governance) graduate from Durham University. His primary focus is on constitutional law and human rights protection.
