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The Supreme Court of Bangladesh scraps the 16th amendment - questions & implications

22 August

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Dhaka Tribune

16th amendment debate: Here is what you need to know

Tribune Desk

Published at 06:28 PM August 18, 2017

The Supreme Court scrapped the 16th amendment on the ground that it undermined the independence of the judiciary

The Supreme Court’s decision to scrap the 16th amendment to the constitution, nullifying parliament’s power to remove sitting judges, has given rise to a heated debate about the respective powers of the judiciary and the legislature. The apex court’s observations on Bangladesh’s history and politics have also drawn protests from government ministers. Here we explain the main points of contention.

What is the 16th amendment?

The 16th amendment to the constitution — passed on September 17, 2014— empowered parliament to remove judges of the Supreme Court for their incompetence or misconduct based on a two-thirds majority.

Ministers said the amendment harked back to the first constitution, drawn up in 1972, which bestowed on members of parliament the right to impeach judges.

That power was transferred to the president following the fourth amendment to the constitution in 1975. Later, the fifth amendment, brought in during military ruler Ziaur Rahman’s regime, legalised the formation of a Supreme Judicial Council (SJC) to impeach judges.

Why it was declared illegal

In light of the State vs Masdar Hossain case verdict, the judiciary was separated from the executive and legislative organs on November 1, 2007.

The Supreme Court scrapped the 16th amendment on the ground that it undermined the independence of the judiciary. Nullifying parliament’s power to remove judges, the apex court reinstated the Supreme Judicial Council for the removal of errant judges.

“Neither individual judges nor the judiciary should be accountable to the executive,” according to the verdict.

Who will remove judges now?

In its ruling, the apex court said the power of impeachment was now automatically transferred to the Supreme Judicial Council since the 16th amendment was void. The SJC was a much more transparent process, the seven-member bench said in its verdict. Disagreeing with the court, Law Minister Anisul Huq claimed: “A court cannot make a law or order retention of its earlier version. It can only define the law.”

Why is the government unhappy?

Ruling party lawmakers are dissatisfied with the verdict because they think the legislature in a parliamentary democracy should have more authority compared to the judiciary. Secondly, the present Awami League-led government feels that the image of Father of the Nation Bangabandhu Sheikh Mujibur Rahman was “undermined” through the Supreme Court observation that “No nation, no country is made of or by one person.”

What does the verdict say about Bangladesh’s history?

“If we want to truly live up to the dream of Sonar Bangla as advocated by our Father of the Nation, we must keep ourselves free from this suicidal mindset and addiction to ‘I alone’, that only one person or one man did all this,” Chief Justice Surendra Kumar Sinha said in his observation on the verdict.

He also remarked on the state of politics, martial law, Election Commission, corruption and independence of the judiciary.

“Now power, not merit, tends to control all public institutions of the country. It is an irony that while unflinching determination and indomitable spirit enabled us to free a country from the clutches of a military power, we have been measurably defeated by ourselves in that very free country,” it said.

Criticising the last two martial law regimes, the court observed: “After independence, unholy alliances of power-mongers reduced this country to a banana republic twice. They bluffed and hoodwinked the people to legitimise their illegal exercise of power.”

What will the government do?

Asked about the government’s stand, Law Minister Anisul Huq said they would likely seek a review to get “objectionable and irrelevant” statements, particularly political observations made by Chief Justice in the judgment, expunged. He also hinted at further amending the constitution, if deemed necessary, in the future.

What BNP says

In its immediate reaction, Bangladesh Nationalist Party, or BNP, termed the judgment historic, saying it aptly highlighted the prevailing political scenario in the country. The government has taken the judiciary as its opponent, it said.

Coming down hard on the law minister and Awami League leaders for criticising the judgment, BNP Secretary General Mirza Fakhrul Islam Alamgir said: It is the law minister’s duty to implement the verdict, not to take a stand against the judiciary. By slamming the verdict, he [Anisul Huq] deviated from his moral duties for political expediency.”

Why the judiciary and the executive are at loggerheads

The ongoing row between the two organs has resulted from disagreement over the issue of the judiciary’s separation. Both the chief justice and ministers frequently exchanged heated words over the formulation of a code of conduct for lower court judges. Added to that is the apex court’s refusal to accept a draft of the code of conduct submitted recently by the government.

During court proceedings, government officials raised objections against what they saw as ‘political comments’ by the Chief Justice.

Chief Justice SK Sinha in his reply said he would continue to speak out for the sake of the welfare of the judiciary even if critics described these as political remarks.

Political implications

The verdict came at a time when the Pakistan Supreme Court declared the country’s Prime Minister Nawaz Sharif unfit for office. Sharif stepped down as premier of Pakistan, complying with the judgment.

Leaders of the ruling Awami League in Bangladesh are concerned about what they see as judicial overreach in the 16th amendment verdict. They also fear that the court may make more such moves in the future.

However, Chief Justice Sinha urged everyone not to play any political games over the verdict.

“The court will welcome constructive criticism, but its judges should not fall into the trap laid by the government or the opposition,” he said.

When will Sinha retire?

SK Sinha took office as chief justice on January 17, 2015 and will retire in January, 2018.

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16th Amendment scrapped, parliament loses power to impeach SC judges http://www.dhakatribune.com/bangladesh/court/2017/07/03/sc-16th-constitutional-amendment-illegal/

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Frontline, August 18, 2017

Bangladesh: Judiciary vs parliament

The Bangladesh government loses its appeal against the High Court verdict that termed the 16th amendment to the Constitution, which gave Parliament the power to remove Supreme Court judges, “illegal and unconstitutional”.

By HAROON HABIB

The Supreme Court of Bangladesh recently scrapped a constitutional amendment that gave the country’s Parliament the power to remove Supreme Court judges for incompetence or misconduct. Many welcomed the apex court’s verdict as one that restored the independence of the judiciary, while others pointed to the embarrassment it had caused the legislature, which passed the amendment unanimously in 2014 and in effect restored Bangladesh’s original Constitution of 1972.

A seven-member full bench of the Appellate Division led by Chief Justice Surendra Kumar Sinha pronounced the verdict on July 3, after hearing the government’s appeal for 11 days. The views of as many as 12 amici curiae were sought—nine opposed the amendment, two did not turn up, and one supported the amendment.

Manzill Murshid, the lawyer for the public interest litigation (PIL) writ petition filed by nine Supreme Court lawyers against the 16th amendment, termed the verdict “a landmark for the establishment of the independence of the judiciary”. Attorney General Mahbebey Alam expressed his dismay at the verdict, while the country’s Law Minister Anisul Huq said that the government would decide the next course of action after getting the copy of the judgment.

The Bangladesh Nationalist Party (BNP), the main opposition now outside Parliament, and lawyers supporting it welcomed the judgment by distributing sweets. The BNP’s Joint Secretary General, Mahbub Uddin Khokon, also the secretary of the Supreme Court Bar Association, alleged that the 16th amendment had been enacted by the Sheikh Hasina government to establish “political control” over Supreme Court judges.

In May 2016, the High Court had ruled that the 16th amendment was “illegal and unconstitutional”, as it went against the principles of the separation of powers and the independence of the judiciary. The amendment, in effect, abolished the Chief Justice-led Supreme Judicial Council (SJC) which had the power to remove a Supreme Court judge after following due process and vested that power in Parliament as in the original Constitution of 1972.
Article 70

The arguments during the hearing of the appeal and the High Court’s observation made it clear that Article 70 of the Bangladesh Constitution, which prevents MPs from working independently, largely contributed to the amendment illegal being declared illegal. “Keeping Article 70 of Bangladesh Constitution as it is, the members of parliament must toe the party line in case of removal of any judge of the Supreme Court. Consequently, the judge will be left at the mercy of the party high command,” read the High Court verdict delivered by Justice Moyeenul Islam Chowdhury and Justice Quazi Reza-Ul Hoque.

The judges continued: “As regards Article 70 of the Constitution of Bangladesh, we must say that this Article has fettered the members of parliament. It has imposed a tight rein on them. Members of parliament cannot go against their party line or position on any issue in the parliament…. They have no freedom to question their party’s stance in parliament, even if it is incorrect. They cannot vote against their party’s decision…. They are, indeed, hostages in the hands of their party high command.”

Article 70 of the Constitution says: “A person elected as a member of parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he resigns from that party; or votes in parliament against that party; but shall not thereby be disqualified for subsequent election as a member of parliament.”

The government of Bangladesh tried to defend Article 70 saying that the provision itself had come into being amid allegations of “horse-trading” reported in different countries.

History of scrapped amendments

This is the fifth verdict of the apex court in which it has scrapped amendments to the Constitution. The other scrapped amendments include the fifth amendment relating to martial law regime in 1975-1979, the seventh amendment relating to the martial law regime of the deposed dictator General H.M. Ershad, the eighth amendment relating to the establishment of High Court benches in different divisions and the 13th amendment relating to the introduction of a national election-time caretaker government.

Bangladesh’s original Constitution of 1972 empowered Parliament to remove Supreme Court judges. But the fourth amendment to the Constitution in 1975 scrapped Parliament’s power and empowered the President to do so. Later, in 1978, the military dictator General Ziaur Rahman curtailed the President’s power and introduced the SJC comprising the Chief Justice and two senior-most judges. It was ratified and validated by the fifth amendment to the Constitution in 1979 when Ziaur Rahman was President.

Now that the amendment has been scrapped, the question is whether the previous system of the Chief Justice-led SJC will automatically be reinstated, thus restoring authority to the SJC.

According to Attorney General Mahbubey Alam, the judgment resulted in “a vacuum”. The SJC cannot be automatically restored by the court, he maintained. However, the senior lawyer M. Amir-Ul Islam, one of those involved in the framing of the Constitution, said that the SJC would automatically be restored following the cancellation of the amendment.

Separation of the judiciary is one of the fundamental principles of state policy and the independence of the judiciary is one of the basic tenets of the original Constitution of Bangladesh. Considered a result of the Liberation War, Article 22 of the Constitution says: “The state shall ensure the separation of the judiciary from the executive organs of the state.” On the contrary, the independence of the judiciary has been undermined on several occasions through constitutional amendments enacted during the two martial law regimes under General Ziaur Rahman and General H.M. Ershad. The judiciary was officially separated from the executive branch of the government only in 2007, following a Supreme Court verdict.

Most civil society leaders welcomed the Supreme Court’s verdict, saying it had “finally reinstated” the fundamental scheme of the Constitution that keeps the power between organs of the state separate. They were of the view that the removal of the 16th amendment would uphold the original character of the Constitution by ensuring a judiciary that would work in unison with the executive but at the same time be independent of it.

Senior Ministers and MPs from both the Treasury and opposition benches were critical of the verdict. Taking part in a parliamentary debate on the issue, the MPs urged the government to take a realistic decision on the issue and hoped that the Supreme Court would restore the 16th amendment once the government filed a review petition against the verdict.

Many of the MPs termed the verdict “unexpected” and said the Supreme Court had to prove how MPs had “challenged the basic structure” of the Constitution by passing the amendment. Their argument was, if Parliament had the power to impeach the President of the republic, the Speaker and the Prime Minister, then why could it not impeach Supreme Court judges for misconduct or incapacity? They also voiced concerns about the SJC system and asked how subordinate judges could try allegations brought against the Chief Justice, or how Supreme Court judges could judge their own misbehaviour and irregularities.

Citing examples, the veteran politician and senior Minister Matia Chowdhury said a judge had circulated leaflets urging a halt to the nation’s war crimes trial but the SJC did not deem it improper behaviour. Another judge had forged his LLB certificate, but the SJC saw no irregularities.

Some leading members of the ruling Awami League and its alliance partners, including the Workers Party and the Jatiya Samajtantrik Dal, alleged that there were forces trying to create “a conflict” between Parliament and the judiciary. Many MPs saw the Appellate Division verdict as “motivated” and “part of a conspiracy”.

Bangladesh is scheduled to have general elections in the next one-and-a-half years, and the Sheikh Hasina government may not want a conflict with the judiciary at this stage. But the questions raised by leading MPs will continue to be debated, in Parliament and outside it.

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The Daily Star - May 29, 2017

16th amendment undermines judiciary: Dr Kamal

Star Online Report

The 16th amendment of the constitution created an opportunity to undermine independence of the judiciary by making it vulnerable to undue influences and pressure, eminent jurist Dr Kamal Hossain said today.

Kamal Hossain said this while placing an expert opinion before the Appellate Division of the Supreme Court (SC) during a hearing of an appeal against the High Court verdict that scrapped the 16th amendment of the constitution.

The 16th amendment of the constitution had empowered the parliament to remove a SC judge for incapacity and misbehavior.

READ MORE: Supreme Judicial Council suitable for SC judges’ removal

While placing argument before the SC, Dr Kamal Hossain fully supported the HC verdict that had scrapped the 16th amendment and said it is unconstitutional and void.

“There is abundant authority and precedent globally that judicial council or similar body consisting only of judges have been constituted in many countries including USA, UK, Canada, Hongkong, Germany, Sweden, Pakistan, Bangladesh, Malaysia, Singapore, Israel, Zambia, Trinidad and Tobago, New South Wales, Victoria and others,” he said.

He added that the consequence of the 16th amendment is to render the tenure of the judges insecure.

Following a writ petition filed by nine Supreme Court lawyers, the HC on May 5 last year declared the amendment illegal. The government on January 4 this year filed the appeal with the SC challenging the HC verdict.

P.S.

The above articles are reproduced here for educational and non commercial use

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