This interview was first published on the New Age

Prof. Dr. Sarkar Ali Akkas is the Professor and founding Dean of Faculty of Law, Jagannath University. After completing graduation and post graduation on law from University of Rajshahi with stellar records, he served at the Judicial Service for a few years, and completed his PhD on Independence of Judiciary from Wollongong University of Australia. The role of judiciary is one of the key areas of his research, and depth of his intellect is reflected in a number of judgments in Bangladesh and India (including the 16th Amendment case) where the courts quoted from his works.

  • What is your general response to the 16th Amendment case verdict?

Prof. Akkas: Whatever the good or bad side of this judgment is, I feel that the debate emerged by this judgment is more important. This pertinent debate shall take us to such direction where it will be easier for us to resolve and rethink our constitutional problems and issues.

  • Many argue that the Supreme Judicial Council is automatically restored by virtue of the judgment. Can the Court directly restore any provision of the Constitution which was repealed by the Parliament? Does this practically place the Judiciary and the Legislative in a confrontational position?

Prof. Akkas: At the end of the judgment, the court itself stated that the provision of Article 96 shall be restored. Therefore it has been restored by the order of court. But in my opinion, the provision would automatically be restored even if the court did not give such order. For this, the parliament does not need to have a law enacted for restoring Supreme Judicial Council. You may ask why. The reason is, the supreme judicial council was previously there in our constitution until the parliament replaced it through the constitutional amendment. When the Supreme Court scrapped the amendment, in my view it automatically reinstate the provision of the supreme judicial council as it was before.

  • Even after post Masdar Hossain situation, Govt. i.e. the Executive still has effective control over the lower judiciary. In your opinion, should the Parliament have any kind of control over the Supreme Court as envisaged in the original constitution?

Prof. Akkas: As a matter of fact, the Supreme Court should have control over both the tiers of our judiciary, be it lower court or the Supreme Court. But the control should not be an exclusive one. Whenever exclusive control comes in one hand, a greater risk of misusing power arises.  In my view, the existing structure where the subordinate judiciary is controlled by both the Supreme Court and law ministry is somewhat reasonable, although some may term it as ‘double rule’. There is indeed a need of some regulations to prescribe the extent of control that might be exercised by each of them but the control must be exercised by both sides, although a balance has to be ensured. It might be argued that this approach might contradict with the notion of separation of powers, but there is a saying in political science that complete separation of powers is neither possible nor practicable. So a complete separation of subordinate judiciary from the executive may not be practicable. I think there must be a balance between the two.

  • The ruling party politicians did not object the issue of Supreme Judicial Council during the Fifth Amendment case in 2011. How do you assess the statements of the politicians now who are protesting against the judgment?

Prof. Akkas: The popular narrative that the government which did not object about retaining supreme judicial council back in 2011 cannot object the same now seems irrational to me. People learn through their experiences. An issue which is been seen from a particular angle today, might be seen in an entirely different form tomorrow. Then again, I am not asserting that that the amendment was flawless. Legislature intended to revert back to the original provisions of the 1972 constitution, which was scrapped by the SC. Unfortunately all the discussions regarding the verdict are mostly circled around some observations in the judgment, which I think keeps us apart from thinking on point to resolve constitutional issues and predicaments.

  • Will the ongoing culture of political criticism of the judgment hamper the rule of law and separation of power? How can this culture of unchecked open statements by the Ministers and general people regarding a verdict can be controlled?  

Prof. Akkas: Constructive criticism should be welcomed as long as it is related to the essence of the judgment and not destroying the dignity and respect of the Supreme Court. The practice of constructive criticism of court orders and judgments is prevalent in many countries. I reckon the judiciary should rather welcome constructive criticism to reassess its own decisions and consider any possible corrections (if any), as no one is above mistakes. But the culture of savagely vilifying an individual judge or the judiciary as a whole savagely in malicious intention is unacceptable.

  • Is there any part of the judgment that you think should be reconsidered for the sake of greater good of the country? Do you think the Appellate Division should exercise the Review power in any manner?

Prof. Akkas: In my view, immaturity of parliament has been shown as one of the main factors behind scrapping the amendment, and article 70 of the Constitutions is described as the main reagent. But I was taken aback not by finding any certain and firm observations on article 70 in this judgment, which should have been discussed and explained. I think after the 15th amendment of the constitution, article 70 has become more workable, as the only option for vacating the seat in parliament is reduced to voting against party, whereas previously abstaining from voting would amount to vacation of the seat. Therefore, an MP can now abstain from voting in the parliament without the fear of losing his seat. Furthermore, a proposed bill in the parliament doesn’t necessarily mean the Party itself, rather it represents the Govt. It enables the MPs to smoothly object against any bill brought to the parliament. A crucial aspect of the verdict could have been the interpretation of “voting against party”. Sadly, we do not see such constructive and critical discussion.

  • Four out of the seven judges refrained from commenting on article 116 under which lower judiciary is kept under the control of the government. Being the proponents of judicial independence, some of the judges kept silent on the issue of article 116. How do you evaluate this? Do you think that the overall independence of judiciary has been indirectly overlooked in this judgment?

Prof. Akkas: The matter in issue was exclusively article 96, not article 116. It seems that article 116 came in the scene when the chief justice mentioned this in his observation while talking about independence of judiciary. I think the other judges kept silent because the state was not given the opportunity to put forward their arguments. However, the hue and cry for independent judiciary without some effective measures seems like an anecdote to me. The foundation of judiciary is based on public confidence, and it helps the judiciary to boast upon integrity and independence, and also inspires the judges from any misconduct. One of the challenges for independence of the judiciary is the practice of reemployment of retired judges. For the sake of judicial independence, the practice of reemployment of retired judges must be stopped. When a sitting judge senses a possibility of reemployment in an office of profit, his sense of independence might take a different turn. I think it is high time we stopped this unhealthy exercise, if we really care about independence of judiciary in accordance with the basic structure of our constitution.

  • In the midst of this ongoing rift between judiciary and the executive regarding the removal of judges, can you suggest any formula where both the parties can participate in removing a judge?

Prof. Akkas: I already have mentioned that neither side should hold exclusive power regarding removal of judges. Besides, the process of supreme judicial council is not flawless, because this forum is exclusively comprised of the judges. The issue of evaluating the judges by the judges themselves might not seem very transparent. Let me give you an example of the Commission on Judicial Performance of California (CJPC). This is an independent state agency established by the state constitution, which is responsible for investigating complaints of judicial misconduct, incapacity and discipline of the judges. The CJPC is comprised of eleven members including three judges, two attorneys, and six representatives of citizens, where the citizens are selected and appointed by the governor, senate committee and speaker of state assembly. This seems to be a very transparent and participatory process. Interestingly, this CJP has jurisdiction over former judges for conducts prior to retirement or resignation.

Another example is the judicial service commission of New South Wales, Australia. As an independent statutory corporation, this commission works as the part of the judicial arm of government. Upon receiving complaints against any judge, the commission starts investigation. If there is substantial proof in favor of the complaint, then it is forwarded to the Conducts Division, a division comprised of judges. This forum also holds its own investigation and then submits a report to the parliament. Then the parliament decides the fate of the judge by voting and adopting resolutions. If the removal of the judge is decided, the Governor orders and executes the removal. In this mechanism, every organs of the state cooperate with each other simultaneously, which yields better result. In my view, we can opt for any of these two options.

  • The legislature wants to revive original article 96 back in the constitution, but it shows reluctance to original article 116. Conversely, the judiciary seeks to pursue original article 116 but drags away from original article 96. How do you assess that?

Prof. Akkas: Non-confidence is the main reason here. Sadly, neither the judiciary nor the executive have enough confidence on each other. The prior bitter experience may be the reason behind such non-confidence. There would be scenario like-both party want to go back to original constitution or neither party wants. But we don’t see that.

  • How do you see the urgency of removal procedure of judges by the parliament where there is still a vacuum of law regarding appointment of judges? As stated in the judgment – ‘that non-framing of any law pursuant to article 95(2)(c) of the constitution has virtually given an upper hand to the executive in the matter of appointment of the Judges of the Supreme Court’- how do you evaluate this statement ?

Prof. Akkas: This is very important topic to be discussed in our legal arena. Even the judgment could not make it clear.  What Article 95 says – it says- a person cannot be qualified for appointed as a judge unless he is a citizen of Bangladesh ‘and’ has been an advocate for ten years of the SC [95(2)(a)], or has been in judicial service for ten years[95(2)(b)],  or has such qualifications as may be prescribed by law for such appointment as a judge of SC[95(2)(c)].

Each of these additional qualifications after the main qualification -‘citizen of Bangladesh’ is an independent one. Look at the word ‘Or’, not necessarily ‘And’ is there. The word ‘or’ is kept there so that besides advocates and judicial officer(s) a third party can also become a judge of Supreme Court. The third qualification is not prescribed by our parliament yet. But there is a misconception among legal experts that the law which is to be enacted under Article 95(2)(c) shall be an additional one prescribing qualifications to be assessed with the prior qualifications as stated under (a) or (b). This is wrong conception. Article 95(2)(c) is denoting us to a new and independent qualification which may be prescribed by the parliament through a law.  Even our SC in this judgment could not get out of this misconception. Article 95(2)(a) says about lawyers, Article 95(2)(b) says about subordinate judges and Article 95(2)(c) is talking about new qualification which the parliament may prescribe through a law!  This may be ‘researching’ in legal arena, law ‘teaching’, for examples in Nepal a legal researcher can be a judge, in some other countries including Nepal and Sri Lanka a law teacher can also become a judge. Article 95(20(c) is talking much about qualification (new) and less about appointment. Yes, Government can make any policy or law prescribing the appointment procedure independently of this Article 95(2)(c). But Article 95(2)(c) has nothing to give an upper hand to the executive in the matter of appointment of the Judges of the Supreme Court.