Judges’ role in independence of judiciary

by Tasmiah Nuhiya Ahmed | Published: 00:05, Aug 09,2017 | Updated: 00:41, Aug 09,2017


BANGLADESH’S constitution was drafted in 1972. The 1972 constitution gave the power to impeach judges and decide their term in office to the members of parliament. However, in 1975, after the fourth amendment to the constitution, the same power was vested with the president. The fifth amendment to the constitution legalised the formation of a supreme judicial council to impeach judges, which was later declared illegal by the court.
Thereafter, the Constitution (Sixteenth Amendment) Act 2014 was passed on September 17, 2014. The 2014 act empowered the parliament to dismiss Supreme Court judges if allegations of incapability or misconduct made against them were found true and the same was also notified by inclusion in the official gazette. In that very year, nine Supreme Court lawyers filed a writ petition under Article 102 of the constitution challenging the legal basis of this 16th amendment to the constitution. Four days later, the High Court issued a rule asking why the amendment would not be declared unconstitutional. On May 5, 2016, a special High Court bench gave the verdict declaring the 16th amendment illegal.
Thereafter, the Appellate Division has recently this year upheld the decision of the High Court that provides that the 16th amendment to the constitution is illegal. The Supreme Court has also outlined a 39-point code of conduct for judges in the decision reinstituting the supreme judicial council. The court approved the code of conduct for the judges and stated that failure to comply with this code of conduct would be considered a gross misconduct.
The code of conduct provides that a judge should participate in establishing, maintaining, and enforcing high standards of conduct and should personally observe those standards so that the integrity and independence of the judiciary is preserved. It further provides that a judge should respect and comply with the constitution and law, and should act at all times in a manner that promotes public confidence in the judiciary.
Therefore, in order for the judges to carry out their functions as per this recently approved code of conduct, it is vital that their appointment, works, impeachment are also done in a transparent process and they are not deferential to any organisation which may ask for privileges that obstruct upholding the constitutional notion, stipulated under Article 22 of the constitution, namely independence of judiciary, by them. The judges should be set free to exercise their judicial function without fearing any pressure from any group of the society.
Article 70 of the constitution provides that the elected members of parliament will have to vacate seat if they vote in the legislature against the political party, which nominated them as candidates in an election. Therefore, as per Article 70, the members of parliament cannot exercise their own judgement regarding removal of the Supreme Court judges against their respective political parties’ decision.
As a consequence of this 16th amendment, there are risks that impeachment of the Supreme Court judges shall be imperilled to political views and demands. Moreover, as per Article 7B of the constitution, the provisions relating to the basic structure of the constitution cannot be amended in any manner. Since the 16th amendment of constitution was related to the notion of the independence of judiciary and the separation of power, the two basic foundations of the constitution, it cannot be justified in any way whatsoever.
Further, the members who constitute the supreme judicial council are appointed by the president with prior mandatory consultation with the prime minister. On the other hand, the members of parliament are elected by direct polls in different geographical constituencies. Therefore, it is better not to put this responsibility of removing any supreme court judge on grounds of incapacity or misconduct on members of parliament who are bound to adhere to a political party’s decision.
Article 116A of the constitution requires that all persons employed in the judicial service shall be independent in the exercise of their judicial functions. Therefore, the constitution stresses on assurance from all institutions to safeguard the freedom of judiciary.
It has, therefore, been rightly observed by the appeals court that neither individual judges nor the judiciary should be accountable to the executive branch of the state is inimical to judicial independence and this is a necessary requirement for the judges to discharge their responsibilities to resolve any disputes fairly and impartially. It has been rightly stated by the chief justice that judges are subject to a strong system of internal accountability in respect of legal errors and personal conduct. He continued that judges individually are accountable to the public in the sense that in general their decisions are in public and are discussed, often critically, in the media and by interest group.
The judges, therefore, can be removed for serious misconduct, disciplinary or criminal offence or incapacity that renders them unable to discharge their functions. Moreover, the court in this regard expressed its view that the chief justice and judges are constitutional functionaries. They are not servants of anybody and have no master whatsoever. There is no master-servant relationship at all between them and anybody else, least of all other branches of the state.
However, a vacuum in the constitution has also appeared after the decision of the Appellate Division was made on the 16th amendment to the constitution with regards to the procedure that would be suitable to impeach a Supreme Court judge. This is due to the fact that the constitutional provisions annulled by the parliament are not to be reinstated automatically and the court cannot be a replacement for the parliament. The government has also expressed the same concern. However, it is better for us to look for ways out from this cloud of doubt and uphold the country’s interest over any other matter.

Tasmiah Nuhiya Ahmed, an advocate, works as a research assistant (law) with the Bangladesh Institute of Law and International Affairs.

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