Reviewing The Views
The sovereignty debate
Whose sovereignty is it any way?
In the recent past, we experienced a healthy debate over the issue of sovereignty of parliament. While the Chief Justice did not claim that the judiciary was sovereign, he significantly made a point that parliament was not sovereign. The Chief Justice further asserted that the judiciary was not answerable to parliament. These sparking remarks were made and the attendant debates and talk-show-discussions emerged when the relevant parliamentary committee asked the Registrar of the Supreme Court to speak up on a questionable appointment in the subordinate judiciary. The judiciary reacted promptly against this invitation, although they reportedly responded positively to an earlier call from the parliamentary committee that wanted to have the judiciary's view about the judges' privileges.
Neither the parliamtray committee nor the Chief Justice wanted to mean what they actually told: the Committee did not intend to hold the judges accountable for what they do, and the Chief Justice was not meaning that the judges were beyond accountability and parliament was under their control. Who is sovereign in a democracy - parliament or the judiciary (Supreme Court)? In Bangladesh, by applying legal language, we often say that parliament is non-sovereign. While this is perhaps not a good way of expression, this refers to the fact that parliament's constitutional power to legislate has its own limitations; it can not breach the Constitution while legislating. In the famous Anwar Hossain Chowdhury Case (1989), we had the doctrine of basic structure entrenched to the effect that parliament cannot even amend the Constitution by destroying one or more of it basic premises. Critics may view this decision as a judicial usurpation of parliament's power or as an illegitimate exercise of constitution-making by the judiciary. This can, however, be viewed as the discovery of a protective wall against political maneuver and onslaughts on the constitution or the 'identity' of the nation. Here, we can recall the reasoning forwarded by Justice Shahabuddin Ahmed in the above case. The judge poignantly observed that people's sovereignty is susceptible to assailment and denial under many devices by the holders of power. Aware of the political realities prevalent in society, Justice Ahmed rightly thought that such a limitation on parliament's amending power is “an effective guarantee against frequent amendments of the Constitution in sectarian and party interest”.
The Diceyan doctrine of absolute parliamentary sovereignty has faced its demise in the UK, the motherland of the doctrine, because of, among others, its enactment of the Human Rights Act 1998. The world over, the myth of unqualified parliamentary sovereignty has now been largely exploded by the growing concept of the rule of law or constitutional supremacy. The claim of parliamentary supremacy is an affront to the modern concept of constitutionalism in that it precludes any effective judicial control on an encroaching parliament. The legal, social and moral foundations of the rule of law require and entitle judges to enforce the Constitution. This does not however mean that the judiciary is absolutely supreme. The Supreme Court is of course supreme in its sphere, but it is never infallible, let alone being without any control.
In any democracy, it is actually the people who are sovereign, not any organ of the state. This spectacularly superior constitutional norm is ingrained the Constitution of Bangladesh in the form of constitutional sovereignty (supremacy) in article 7. Each organ, be it the judiciary or parliament, has its role defined in the Constitution, although there are gray areas or fields of cooperation commonly occupied. Admittedly, from these perspectives the Chief Justice commented that judges are not accountable to parliament. Former Chief Justices (e.g., Justice Latifur Rahman) also made similar extra-curial remarks, stressing that judges are accountable only to the Constitution and the laws of the country and to none else. This kind of 'unaccountability' is indeed the strengths of the judges. Nevertheless, despite its 'legal' correctness, the current Chief Justice's remark that Parliament is non-sovereign and the judiciary is not accountable to parliament is un-pragmatic, questionable and susceptible to misunderstanding, which may ultimately lead to chasm and mistrust between the judiciary and parliament.
Even in established democracies, parliament has its due role in overseeing the integrity of the judiciary and judges, of course not as a master but as constitutional coordinator. Many judiciaries around the world are required to publish 'good governance' reports annually, which are discussed in parliaments. While judicial efficiency or wisdom is not a matter for control, judicial integrity certainly is. Say, for example, expenses by lower courts are subject to routine inspection from the audit department of the government - a process which invariably involves interactions between the judges/magistrates and the executive officials. In a plain assessment, this may seem to be an area of interference. This is indeed accountability to the legal processes. Mention may also be made of the system of parliamentary approval of judicial appointments and of parliamentary impeachment of 'unqualified' or 'corrupt' judges. It would be not out of place to mention that there is currently a move to reinstall in the Constitution the system of parliamentary removal of defaulted judges, a move which some former judges have refused to endorse.
Having said all this, it must also be acknowledged that, although the three branches of the state are coordinate branches, standing not in the rank of hierarchy, the judiciary enjoys a unique position to enforce the Constitution when other branches are found beyond constitutional bounds. This uniqueness of the judges' stand comes from the fact that they are unelected, that is, free from electoral accountability. Brennan, J. of the USA once famously observed: “Insulated as they are from political pressures, and charged with the duty to enforce the Constitution, courts are in the strongest position to insist that unconstitutional conditions be remedied, even at significant financial cost” [Rhodes v Chapman 452 (1981) US 337, 359]. However, it is undeniable that other two branches of the state have wider democratic credentials, and there has to be judicial deference to them when the deference is 'due'. Also, in order to increase democratic-and-constitutional legitimacy for their constitution-enforcing role, judges have to live with the people's expectation that they should act responsibly and judiciously and without frustrating the constitutional balance and the essential legal certainty.
For the greater sake of constitutionalism, judges should both speak and act strategically and pragmatically. Silence may sometimes prove more creative that buzz words. When Alexander Hamilton wrote his Federalists Paper in order to convince those delegates in the American constitutional convention who were potentially against judicial review power, he described the Supreme Court as the weakest of the state organs with a role to pronounce merely “judgment” on a dispute, having no power to take any “active resolution whatever.” This was a strategy, as this constitutionalist knew that there ought to be a judiciary effectively to control the executive vis-à-vis the liberty of the people. The American Supreme Court has since enjoyed a robust judicial review power and resolved many issues actively.
To conclude, it is interesting that the sovereignty-debate between parliamentary committee and the current Chief Justice ensued from the issue whether the parliamentary committee could inquire into non-adjudicative judicial affairs. As it often happens, the debate could well be on the issue of the extent the judiciary can go in a democracy, that is, on whether the judges can reverse democratically made and enacted decisions and laws of elected branches. Either way, such a debate or tension is inevitable in a democratic society. This helps every organ of the state to pause and reflect on its own territory of agency, functions and responsibility, yielding at the end of the day wider accountability of all under the constitution.
The writer is Associate Professor at the Department of Law, University of Dhaka.