The separation of the judiciary from other organs of the state remains elusive even after 50 years of Bangladesh’s independence as successive governments have amended the constitution to control the judiciary.
Legal experts said that Article 96 of the constitution on the removal of Supreme Court judges for misbehaviour or incapacity was amended on eight occasions between January 1975 and September 2014 while Article 116 on the control and discipline of the lower judiciary was amended on three occasions in 1975, 1979 and 2011.
‘It is painful that we are deprived of getting full independence of the judiciary from the executive, even though the establishment of an independent judiciary was one of the core objectives of our 1972 constitution,’ Dhaka University law professor Md Mizanur Rahman told New Age.
‘Although the law ministry is consulting with the Supreme Court to deal with administrative affairs in the subordinate judiciary, questions can be raised on how much the consultation is effective,’ he added.
He said that it is not a good sign for a democracy and such deviations bring no blessings for a country and a nation. ‘When the judiciary is kept under the executive, democracy the first casualty,’ he pointed out.
The power to remove SC judges was vested in the president through the parliament in 1972, then in January 1975, through the Fourth Amendment to the constitution, the president became the sole arbiter.
Later in 1977, the president and the chief martial law administrator were authorised to exercise the power through the chief justice-led Supreme Judicial Council and the system of Supreme Judicial Council was ratified by the fifth amendment to the constitution in 1979, and the power was again vested in the chief martial law administrator in 1983.
All the martial law proclamations, including the Supreme Judicial Council of the fifth amendment, were revived through martial law proclamation in 1986 with the power vested in the chief martial law administrator.
All the martial law proclamations were declared unconstitutional by the High Court on August 29, 2005 in a Bangladesh Italian Marble Works Ltd case, but the Appellate Division in February 2010 retained the Supreme Judicial Council until December 31, 2012 with the observation that the parliament would make necessary amendment to the constitution regarding issues related to the Article 96.
On June 30, 2011, the parliament upheld the Supreme Judicial Council by amending the constitution through the 15th amendment.
In 2014, the government through the 16th amendment vested the power again in the parliament but the High Court on May 5, 2016 declared 16th amendment unconstitutional and restored the Supreme Judicial Council and the Appellate Division to upheld the HC verdict on July 3, 2017.
Jurist Shahdeen Malik told New Age that though the government has yet to amend the constitution to restore the Supreme Judicial Council on the ground that its appeal against the Supreme Court’s ruling awaits a hearing, the online version of the constitution incorporated the parliament’s authority to remove SC judges.
He said that the separation of the lower judiciary from the law ministry on November 1, 2007 remained on paper because ‘the ministry continued influencing the subordinate judiciary’.
He said that the process of recruitments of SC judges was not transparent and partisanship became the norm since early 2000 as no law has been framed yet to set up the qualifications of the judges as per Article 95 of the constitution.
‘Consequently, there are always some doubts in independent functioning of the higher judiciary,’ he said.
There is dual control of subordinate judges by the law ministry and the Supreme Court, said Shahdeen, who also added that the law ministry should not have any control over the judiciary as per the constitution.
‘Although the judiciary has been developed on paper, the independence of the judiciary could not be achieved in reality,’ SC lawyer and right activist Md Asaduzzaman said.
He said that the judiciary became relatively ‘weaker and more affected’ since former chief justice Surendra Kumar Sinha was removed as it is him who penned the 16th amendment verdict in 2017.
‘Judges have been appointed on the political choice of the governments in absence of any law or rules and this is why the higher judiciary has become questionable sometimes,’ he said.
Asaduzzaman said that the partisan judgements on this occasion come from the judges.
He said that the government wanted to control the judges without making any law for setting out qualifications for Supreme Court judges.
The Appellate Division in the 16th amendment case also restored Articles 115 and 116 from the 1972 constitution.
The government’s petition seeking a review of the 16th amendment verdict still awaits a hearing.
The authority of control and discipline of judges and magistrates ‘shall vest in the Supreme Court’ as per Article 116 of the 1972 constitution.
The Supreme Court lost the authority as the government vested the authority in the president amending the constitution through the fourth amendment.
The Supreme Court lost its authority over lower court judges after the Appellate Division upheld the High Court’s verdict that had declared the fifth amendment unconstitutional.
On June 30, 2011, the government restored the fifth amendment provision relating to Article 115 and 116 paying no heed to the Appellate Division’s observation in its verdict on the fifth amendment to reinstate original Articles 115 and 116.
Article 115(1) of the 1972 constitution empowered the president to appoint district judges on the recommendations of the Supreme Court and other persons after consultation of the Public Service Commission and the Supreme Court.
The Supreme Court also lost the authority to appoint district judges and magistrates as the government through the fourth amendment empowered the president to exercise the power in accordance with rules made by him.
The president still retained the power.