SC for amendment to ensure efficacy

The Appellate Division of Supreme Court seeks restoration of two articles of the 1972 constitution, for making separation of the state's judiciary from the executive branch effective.
The lower judiciary was officially separated from the executive branch on November 1, 2007 following the Appellate Division's directives in a case known as "Masdar Hossain's Case".
Laws were amended and new rules were framed for that purpose as well. However the constitution was not amended to ensure effective separation.
Upholding the High Court's verdict that declared the fifth amendment to the constitution illegal, the apex court is now saying, "It is our earnest hope that articles 115 and 116 of the constitution will be restored to their original position by the parliament as soon as possible."
Independence of the judiciary, which is one of the basic features of the constitution, will not be fully achieved unless the articles are restored to their original position, the court stated.
The original articles had vested the control of the lower judiciary in the Supreme Court, maintaining conformity with the fundamental principles of state policy stipulated in the constitution.
But the fourth amendment in 1975 brought drastic changes to the articles pushing the matter in the opposite direction, by allowing the executive branch to control the lower judiciary.
Many changes brought to the constitution by the fourth amendment were dismantled during the first martial law regime. But the changes brought to the two articles remained intact.
When his attention was drawn to the Appellate Division's expectation, Suranjit Sengupta, co-chair of the parliamentary special committee for constitutional amendment, said they are examining everything including this point.
"It will be placed before the committee that will decide on the matter," Suranjit, also chief of the parliamentary standing committee on law justice and parliamentary affairs ministry, told The Daily Star yesterday.
The special committee on Thursday assigned its chief Syeda Sajeda Chowdhury, and Suranjit to thoroughly examine and analyse relevant verdicts of the High Court and the Appellate Division in consultation with the law ministry and the Law Commission, for their consistencies and inconsistencies with the constitution.
After the official separation of the judiciary from the executive, hundreds of executive magistrates, who are also administration cadres, lost their judicial authority, as the order empowered only judicial officers to exercise judicial functions.
But the executive branch still controls postings and promotions of judicial officials, albeit "in consultation with the Supreme Court".
Against such a backdrop, the Appellate Division came up with the recent direction for restoring articles 115 and 116 to their 1972 positions.
"It may be noted here that among the twelve directions given in Masdar Hossain's case one was to the effect that parliament will in its wisdom take necessary steps regarding this aspect of independence of judiciary," the apex court stated.
In the ruling, the court also cited observations made by Justice Abdul Matin, who said, until and unless articles 115 and 116 of the constitution are restored to their original state, separation of the judiciary will remain a distant cry, and music of a distant drum.
Former attorney general also a constitutional expert Mahumudul Islam in his book titled "Constitutional Law of Bangladesh" discussed the articles as well.
About the original article 115, he said the 1972 constitution stipulated that district judges would be appointed by the president on recommendation from the Supreme Court, and all other civil judges and magistrates exercising judicial functions would be appointed by the president in accordance with the rules made by himself in consultation with the Public Service Commission and the Supreme Court.
About the original article 116, he said the control including the power of postings, promotions and granting of leaves, and of disciplining the persons employed in judicial service, and the magistrates exercising judicial functions, were vested in the Supreme Court.
"These provisions were in conformity with article 22, which incorporated the fundamental principles of state policy of separation of judiciary from the executive. Article 22 simply provides that there shall be separate judicial service free from the executive control," Mahmudul Islam wrote.
But the fourth amendment pushed the matter in the opposite direction by providing for control of the lower judiciary by the executive, he added.
The amended article 115 says, "Appointment of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the president in accordance with rules made by him in this behalf."
As a result, the president no more requires a recommendation from the Supreme Court for appointment of a district judge, nor is he required to consult the Supreme Court and the Public Service Commission in framing rules to exercise his powers under article 115, observed the former attorney general.
Meanwhile, the president performs all his functions, except appointing the premier and the chief justice, on advice of the prime minister, who is the chief of the executive branch.