Judiciary vs parliament

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.