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Cardozo International & Comparative Law Review

Abstract

Nothing contributes more to the firmness and independence of the judiciary as permanency in office, as it enables judges to decide cases, regardless of whether their decisions please the executive or the legislature. The Constitution of Bangladesh, 1972, originally empowered the Parliament to remove judges of the Supreme Court only on the grounds of proved misbehavior or incapacity. However, the Constitution (Fourth Amendment) Act, 1975, which replaced parliamentary democracy with a presidential form of government, empowered the President to remove the judges of the Supreme Court in accordance with his own will. But two years later in April 1977, the Martial Law regime of General Zia, once again changed the method of removal of the judges through a Proclamation Order, which was later validated by the Constitution (Fifth Amendment) Act, 1979. This removal procedure stipulated that a judge of the Supreme Court could only be removed from office by the President on the recommendation of the Supreme Judicial Council, which was to be composed of the Chief Justice of the nation and the two next senior judges of the Supreme Court. This method of removal of judges was consistent with the international norms concerning judicial independence. However, the current government of Bangladesh Awami League (BAL) used its absolute majority in the Parliament to pass the Constitution (Sixteenth Amendment) Act, 2014 for repealing this transparent method of removal. Instead, this amendment once. again vested the power to remove judges in the Parliament. The Supreme Court, however, in July 2017, under the stewardship of Chief Justice SK Sinha declared that the Sixteenth Amendment was ultra vires the Constitution. In retaliation for the Chief Justice's fearless judgment in the Sixteenth Amendment Case, the regime of BAL not only forced him to resign from office, but also to leave the country. The objective of this Article is to demonstrate that the enactment of the Sixteenth Amendment and the subsequent measures have been preferred for bringing the superior judiciary under the control of an all-powerful executive. It will be shown that these measures have unduly impaired the independence of the judges to decide cases without the fear of adverse consequences. Consequently, this Article will put forward recommendations for safeguarding the independence of the superior judiciary.

Disciplines

Comparative and Foreign Law | Courts | International Law | Judges | Law | Law and Politics

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