Justice Md. Rezaul Hasan (M.R. Hasan)
Supreme Court of Bangladesh
High Court Division
One and a half century ago, in March, 1857, the US Supreme Court decided the case of Dred Scott Vs. F.A. Sandford. Scott was a slave in Missouri (a slave state) in 1832, to Dr. Emerson. He, thereafter, travelled to and lived in the free state of Illinois and then in Wisconsin with his master. After he had returned to Missouri, with his late master’s family, Scott filed a suit, in 1846, in the St. Louis Circuit Court, Missouri, claiming that he and his family had, by then, acquired the status of freemen, due to their stay and residing in the free state of Illinois. He got the verdict. But, in an appeal, filed by his new master F.A Sandford, the Missouri Supreme Court, in 1852, reversed the judgment of the trial court and they were refused the status of freemen. Scott filed an appeal, on 30 December, 1854, before the Supreme Court of the USA. The second round oral argument began on 15 December, 1856. At that time Congressional and the Presidential election campaign were going on and the countrywide strife, as to the legal status of the African American, was at its height. So, the judgment was deferred to and delivered on 6 March, 1857, after the elections were over.
The Supreme Court, by a majority judgment of 7:2, held that the African Americans were not citizen of the USA, hence Scott had no standing to prefer the appeal. His appeal was dismissed. All scope to a peaceful resolution having failed, even in the court of the last resort, this had ultimately led to the American Civil War of 1861, that ended in 1865, giving victory to the Union, who were anti-slavery states. The Dred Scott judgment was, overturned, in 1868, by the 14th Amendment to the US Constitution, giving citizenship status to all African Americans, while the slavery was abolished earlier by the 13th Amendment, in 1865.
But, noticeably, a commenter had, later on, remarked that, these judges, though not supposed to be parties to this dispute, have passed such a judgment that has made the civil war inevitable. This judgment of the US Supreme Court and its aftermath are cited to reflect upon the business of judging, whether it is a privilege of the judges and the people’s part in judging their judgments.
In our jurisdiction, a recent judgment passed on 05.06.2024, by a Bench of the High Court Division, in Writ Petition No.6063 of 2021, and its aftermath [begun with students protest, leading to mass uprising and then the regime change on 05.08.2024], also requires us to think about the business of judging. To explain the point a glimpse into its background of this judgment seems relevant.
At its earliest, the Ministry of the Cabinet Affairs had issued an office memo, on the 5th September, 1972, introducing the Interim Recruitment Policy, reserving 30% quota for the freedom fighters, 50% quota for other 20% on merit basis, when the Constitution of the People’s Republic of Bangladesh was not born. Hence, the question of constitutional validity of the said interim policy, with reference to Article 29(1), did not arise as on that date.
Article 29 (1) of the Constitution, born on 16.12.1972, guarantees equality of opportunity for all citizens in the service of the Republic, while Sub- Article 3(a) provides that the state can make provisions (for quota), for securing representation of the backward sections of the citizens in the services.
Accordingly, this office memo dated 5th September, 1972, which was inconsistent with Article 29(1) of the Constitution, should have become void as on 16.12.1972. Nevertheless, as per Article 150, read with paragraph 3 of the 4th schedule to the Constitution, this Interim Recruitment Policy dated 05.11.1972, stood ratified and has acquired legitimacy, as the ‘transitional and temporary provisions’, since it was made during the period between 26.03.1971 to 16.12.1972, the commencement date of the Constitution.
Subsequently, however, the Ministry of Establishment has issued a notification dated 17.03.1997, reserving 30% vacant posts for the freedom fighters (FF) and for their children along with 25% quota for others, while kept 45% vacancy to be filled up on merit basis. It was also inconsistent with Article 29(1) of the Constitution. Besides, like the previous circular dated 05.09.1972, this circular could not be treated as temporary or translational provisions, as contemplated in Article 150. However, quota privileges up to the children of the FF, and their appointment accordingly, appears to have received a tacit approval from all quarters and it was not questioned by any one.
Thereafter, the Ministry of Establishment, in continuation of their earlier notification, had issued another notification dated 16.01.2011, extending that 30% freedom fighters quota for the grandchildren of the FF. Like its predecessor, it was inconsistent with the provisions of Article 29 (1) and was not a temporary and transitional provisions as meant in Article 150 of the Constitution.
General students, therefore, under the banner of “Bangladesh Chatra Odhikar Porishad” had started a movement seeking reform of the quota system in the service of the republic (not abolishment). At one stage, however, the Government had accepted their demand and issued a notification dated 04.08.2018, whereby the quotas, in the erstwhile 1st and 2nd class government services, were abolished. This issue, however, did not
end there.
Some persons had filed the aforementioned Writ Petition No. 6063 of 2021,challenging the notification dated 04.08.2018, and a Rule was issued, by a Division Bench, upon the government, to show cause as to why the said notification should not be declared unlawful. After hearing the petition, by judgment dated 05.06.2024, the Rule was made absolute (i.e. the writ petition was allowed), declaring the notification dated 04.08.2018 illegal and, in effect, restored the notification dated 16.01.2011, reserving quota for the grandchildren of the freedom fighters. The students community felt that justice was denied to them, by this judgment, and a countrywide student movement, under the banner ‘Anti-discrimination Student Movement’ had begun and continued, chanting the slogan ‘we demand justice’.
Amid the countrywide student’s protest, the government filed an Appeal, (CPLA) No. 2516 of 2024, against the judgment dated 05.06.2024, before the Appellate Division, who has, by their judgment and order dated 21.07.2024, set aside the judgment dated 05.06.2024 of the High Court Division and, to do complete justice, as authorized by Article 104, also gave a direction upon the government to issue a notification reserving 93% of the vacancies to be filled up on merit basis, 5% quota for freedom fighters and 2% for others and the concerned Ministry had also issued a notification, accordingly. Indeed, this judgment was not a substitute to an Act of Parliament, nor it has done away with it’s duty to make an appropriate Act, as demanded by the students. So, this judgment and the notification fell short of the student’s demand to address the quota issue by an appropriate Act of Parliament.
Noticeably, in Article 29(3)(a), only the State has been empowered to make provisions for quota. The term ‘State’, as defined in Article 152 of the Constitution, includes Parliament, established under Part V of the Constitution, but does not include ‘The Executive’, referred to in Part IV of the Constitution. Therefore, ‘the executive’, i.e. the Ministry of Establishment had no authority to issue the notifications preserving quota in the Service of the Republic, in purported exercise of the powers vested in the ‘State’ (i.e. in Parliament). It was Parliament alone who had authority to make special provisions, for the purpose of Article 29(3)(a), by an Act of Parliament. Thus, the demand of the students was consistent with the letter and spirit of the Constitution, from its very beginning.
Therefore, for at least three clear reasons, namely (i) Parliament alone had authority to introduce provisions for quota, through an Act of Parliament, and it can not abdicate it’s power to the Executives, (ii) the executive (ministry) had no authority to introduce quota systems by the said notifications i.e. by executive orders and (iii) that the circulars introducing quota in 2011 was clearly discriminatory and inconsistent with Article 29(1), the impugned notification dated 04.08.2018 (whereby the quota system was abolished) should have been upheld and the Writ Petition should have been dismissed (by discharging the Rule). If this conclusion is agreeable, as just and proper, then the business of judging should deserve a serious thought.
Now, to further explore the parameters of the business of judging, and may be as an academic point, can it be argued that the Appellate Division’s judgment and order dated 21.07.2024 should have been confined only to the setting aside of the impugned judgment and order dated 05.06.2024 of the High Court Division [that would have restored the notification dated 04.08.2018, abolishing quotas, to its original place], without giving direction upon the Ministry of Establishment to publish it’s prescribed notification about quota in the government service, since that was the business of Parliament, as per Article 29(3)(a). Or, can it be argued alternatively that, as the Executive should not have undertaken this function of the legislative, so should not have the Appellate Division. However, as to these academic questions the answer can be that, Article 104 of the Constitution invests the Appellate Division with sweeping powers of extraordinary nature, to give such directions to do complete justice, in a case like this [as a stopgap arrangement] or where it becomes exigent in the national interest to do so, or when there is no other forum, nor any clear or specific law on the issues to be addressed and resolved. It’s power under Article 104 is not limited by any other provisions of the Constitution. [However, its judgment and order dated 21.07.2024 does not absolve Parliament to make appropriate law for the purpose of Article 29(3)(a) of the Constitution, as mentioned above]. It should also be made clear that the Appellate Division’s decisions and opinions are final, whether given under Article 103, 104, 105 or 106, and none but it alone has the authority to interpret its judgments, orders or opinions, or to review or modify the same. Parliament has no power to undo or modify the judgments, orders, opinions or directions passed or made by the High Court Division or by the Appellate Division, because that will amount to usurpation of judicial functions [which it can not] and also because Parliament’s power to legislate has been vested in it subject to the provisions of the Constitution, that includes Articles 102, 103, 104, 105 and 106, as well. These are powers of the Supreme Court as an institution, not privileges of any individual judge.
The ultimate burden, however, rest with the Supreme Court to maintain the balance of justice upright, by keeping the Executive and Legislative organ within the bounds of their respective urisdiction, as well as to keep it within its own confine. To that end, the Constitution has established and intends an independent Supreme Court in its provisions and the scheme, vide Article 96 and Article 147(2), while Article 147(4) determines the judges position in the warrant of precedence, which cannot be degraded(to the disadvantage of the judges),due to the bar of Article 147(2). Indeed, change in the warrant of precedence will require amendment of Article 147(4), of the Constitution.
Then, in Article 22, the Constitution has entrenched a practical and functional separation of powers between the Executive and the Judiciary. Besides, Article 112, read with Article 108 providing for consequences for non-compliance, enjoins a mandatory duty upon the Executive to act in aid of the Supreme Court, not vice versa, so that the Supreme Court shall not cede its powers or jurisdictions to the Executive, by way of any judicial concession or indulgence, causing great prejudice and silent sufferings of the citizens, who consider the Court as their last resort against the arbitrary or unauthorised acts and deeds of the governments and state functionaries affecting their lives, liberties, properties, business, livelihood, privacy etc.
Article 112, however, does neither intend, nor require Parliament to act in aid of the Supreme Court. Hence, Supreme Court cannot give any direction requiring Parliament to make any law. But, the court can always strike down any law made by Parliament, if that offends Article 26(2) or Article 7(2) of the Constitution.
As the judicial organ of the state, the Supreme Court, on its own part, exercises judicial self-restraint in all appropriate cases, to keep it within its own perimeter and the Appellate Division will review its own judgment, wherever necessary. It has ruled, in several cases, that it can not perform the functions of the law makers, nor the duties of the Executive Branch (in appropriate case it can give directions, although). Besides, as the non-political branch of the of government, it does not answer any political question and, therefore, it’s language should be apolitical and confined to the justiciable issues to be addressed.
That besides, the judges have to take oath and their appointment (elevation) becomes effective upon taking the oath, not from the date of appointment. So, yielding to any pressure or indulging in any fear or favour or self-rewarding consideration in them, in deciding any matter, will not only constitute a breach of oath, but will be a disqualification, per se. A judge may ask himself, every day after the court, if he or she has passed any judgment or order which he or she knew should not have been passed or made. People may not overrule the likelihood of suffering injustices from others, but they never expect that court can do injustices to them. The position of a judge may be a test from the Almighty, who may affirm it as reward and blessings for good deeds and may also take it back with humiliation, for doing injustice or misusing the office. Justice is not done, as the history suggests, unless it conforms to sense of social justice.
Then, we have come across some instances of summarily rejecting the Writ Petitions in which constitutional questions were raised. The erstwhile Supreme Court of Pakistan, who we have succeeded, was of the view that a writ petition, in which constitutional question has been raised, cannot be summarily dismissed (save on the ground of standing); the court must pass a speaking order, i.e. such a petition must be decided
on merit.
Finally, about the role of the lawyers vis a vis the ‘Rule of Law’ and the position of the judges vis a vis the Constitution, the Honourable Mr. Justice V.R. Krishna Iyer, in his book ‘Off the Bench’, has defined that, ‘the Rule of Law is not the rule of lawyers as the Supremacy of the Constitution is not the supremacy of judges’. This cautionary utterance should be a constant reminder for both the Bench and the Bar who share equal responsibility in supplying the demand for justice.
This humble experience and views of mine are shared not to criticise any particular judgment or any Honourable judge. Besides, these are not judgments of an individual, but of the court, as an institution. Two judgments have been cited above only to explain the topic ‘the business of judging’ in the context of some practical situations, and, indeed, expecting that it may evoke, in all those truly committed, an insight and anxiety about the nature of business of judging.
