A tug of war always existed between the different organs of the state in exercising power and controlling authority in Bangladesh. In 2007, the interim caretaker government of Bangladesh declared the independence of the judiciary from the executive, following the Masdar Hossain case. It rendered the Supreme Court independent and brought magistrates free of the influence of the executive branch.
The 16th Amendment of the Constitution
The conflict arose again between the judiciary and the government when the parliament brought back the old provision of Article 96  of the Constitution of 1972 through the 16th amendment of the Constitution of Bangladesh on September 17, 2014. It gave power to the Jatiya Shangshad to remove a Supreme Court judge by two-third majority votes in the parliament if allegations of incapability or misconduct against him are proved.
Primarily, MPs from both the treasury and opposition benches opposed this bill when the permission to place it in the parliament was sought by the Law Minister. Nonetheless, they later allowed him to place it. The bill was passed in the Parliament after 327 votes from the government, its allies and the opposition parties were in favour of it. No one voted against the passing of the bill.
Prior to the 16th amendment, the three-member Supreme Judicial Council led by the Chief Justice had the power to impeach judges of the Supreme Court. This system had been in vogue since 1978.
In response to questions from the journalists, the Law Minister remarked, “The independence of the judiciary will not be hampered because of the amendment. The Supreme Court judges will be able to discharge their regular duties independently.”
However, this was not the same opinion of most of the eminent lawyers and jurists of the country. They expressed their concern that the amendment would curb the independence of the judiciary. Jurists began to speculate that the immediate effects of this amendment would be that courts would not dare to pass any order against the interests of the parliament. Even in the status quo, courts sometimes felt shaky to pass such judgments; this amendment would do further damage to the justice system.
Additionally, the provisions stated in Article 102  to review the actions of the government by the High Court division of the Supreme Court would be of little use once the judges consider the issues keeping in mind of their removal if the judgment passed by them goes against the interests of the government.
Besides, while making the amendment, the issue of conflict of interest had not been given any prior consideration. At present, the representation of businessmen in the Parliament is increasing rapidly. There would be an apparent conflict of interest in many pending cases now and the court would not be able to act independently.
The High Court Declares the 16th Amendment Illegal
On May 5 2016, the High Court scrapped the 16th amendment of the Constitution declaring it illegal and contradictory to the Constitution. A special bench of three members led by Justice Moyeenul Islam Chowdhury and comprising of Justice Quazi Reza-Ul Hoque Justice Md Kamal delivered the verdict by majority view.
The High court declared that the amendment is illegal, unconstitutional and against the principles of the separation of state powers and the independence of the judiciary. The court in its short verdict observed that, “The Commonwealth Latimer House Principles, 2003 about removal mechanism of judges, according to us, are best exemplified by the Chief Justice-led Supreme Judicial Council as incorporated in Article 96 by the fifth amendment to the Constitution.”
The High Court also observed that there is a fundamental difference between the lawmakers of the USA, the UK, Australia, Canada, India and a few other countries where parliaments retain this power and the lawmakers of our country. In those countries, lawmakers are free to perform their functions in the parliament. However, in Bangladesh, Article 70 of the Constitution puts a tight rein on our lawmakers.
Article 70 states, “A person elected as a member of the Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he-
a) resigns from that party; or
b) votes in parliament against that party;
but shall not thereby be disqualified for subsequent election as a member of Parliament.”
The Article 70  has restrained the members of the Parliament and has made them hostages in the hands of their party high command. They do not have any freedom to question or hold a different view to the stance taken by their respective parties. Neither can they vote against the decision of their parties. As such, in many instances, an MP has to blindly follow the decision of his/her party. It is thus obvious that any decision to impeach a judge would be a direct interference from the executive towards the judiciary.
Hence it can be said that the 16th amendment to impeach the Supreme Court judges had curbed the independence of the judiciary and the order from the High Court was a much needed verdict in order for the judiciary to regain its autonomy.
The order came more than a week after the cabinet approved a draft law specifying the procedures for the Jatiya Shangshad to exercise their power to impeach High Court judges. This enraged the ministers and MPs and they felt that the verdict undermined and humiliated the Jatiya Shangshad. “The judgment is against the Constitution. The High Court does not have the jurisdiction to deliver this verdict”, commented by the Law Minister Anisul Huq. The government has already filed a petition with the Supreme Court seeking a stay on the verdict.
The government insisted that the 16th amendment has been made following the Constitution and provisions of several developed and democratic countries that have either parliamentary or presidential form of government. It is atrocious that our lawmakers follow the Constitution of such countries while making a harsh law but are reluctant to follow their democratic procedures. None of the above mentioned countries have such a form of cabinet like ours.
Moreover, the cancellation of the 16th amendment has also given rise to the confusion whether the Supreme Judicial Council would be automatically restored following this judgment. The prominent jurist Shahdeen Malik remarked, “The Supreme Judicial Council will not be restored automatically in the Constitution. An amendment to the Constitution is needed for that.” Hence, following the judgment, it is currently unclear as to who holds the authority to impeach the judges of the Supreme Court.
It remains to be seen as to what verdict the court would arrive to during the hearing of the appeal. Nevertheless, it can be said that the judiciary even today is not totally free from the executive. For a country like Bangladesh, it is extremely necessary for the judiciary to act independently, free from the interference of the executive in order to establish the rule of law. Provisions like Article 70 and Article 96 makes it impossible for us to do so.
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