CRITICS OF SIXTEENTH AMENDMENT UNDER THE CONSTITUTION OF THE PEOPLES REBULIC OF BANGLADESH
General Discussion on Sixteenth Amendment of the Constitution of Bangladesh
Before proceeding to the discussion of various points of Sixteenth amendment of the Constitution of the People’s Republic of Bangladesh, at first we need to see the relevant provision from Sixteenth amendment which talks about impeachment of Justices of Supreme Court. According to Article 96 of the existing Constitution of Bangladesh,
- Subject to the other provisions of this article, a Judge shall hold office until he attains the age of sixty-seven years.
- A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehavior or incapacity.
- Parliament may by law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehavior or incapacity of a Judge.
- A Judge may resign his office by writing under his hand addressed to the President.
There was a provision in the Article 96 of the 1972 constitution regarding impeachment of Supreme Court judges through the Presidential order by having two-thirds majority in parliament for proved misconduct and incapacity. Later, during the presidential form of government, a new provision was incorporated in the constitution which stipulates that any judge of the Supreme Court may be impeached through a Presidential order. According to the aforesaid provision, no judge can be removed before giving him or her scope of replying show cause notices mentioning actions against them on the ground of misconduct and incompetence.
But, in 1977 and 1978, a provision was incorporated in the constitution giving the authority of impeachment of Supreme Court judges on the grounds of misconduct and incapacity to the President following recommendations of the Supreme Judicial Council formed by the Chief Justice and two other senior judges of the Supreme Court. The provision was against the basic principle of the constitution and democratic spirit as well, the objective says.
In most of the democratic countries in the world, the principle of accountability of the judges of the superior court, like other organs of the state, lies with the parliament consisting of the elected representatives of the people.
Now in the light of various methods of Interpretation this amended article will be analyzed.
Under its Literal meaning
If we give a very specific consideration over the previous mentioned Article of the Constitution, under the literal meaning, it actually shows that,
- members of the parliament can initiate the proceeding of impeachment of Judges
- The resolution for the impeachment of Judges requires two third majority of the total number of the members in parliament. Hence, in no way two third majorities can be found if the session of parliament doesn’t get the presence of all of its members.
- by perusing the provisions of Clause 2 of Article 96, it seems that whatever may be passed by MPs in the session under the said reference; the ultimate decision stays over the hand of the Head of the Executive or more specifically to the President. Moreover, the provision does not expressly says anything repugnant on this regard; that what will be the situation if in anyway resolution is not passed by the President within a fixed period.
- It gives an option for the parliament to create law in relation to the resolution and procedure of investigation for the cases relating to Impeachment of Judges. No direct Law has been prescribed on this regard.
- It also avails the provision of self-resignation by Judges. Although impeachment and removal these two words are not exactly the same issues under legal field but the provisions of the Constitution actually holds both criteria’s in one Article.
In Harmonious Approach
If interpret the previous mention Article under Harmonious Construction then following points can be found:
- Although the President of Bangladesh have two distinct Powers namely; appointment of Chief Justice and appointment of Prime Minister under the provisions of the Supreme Law; after Sixteenth amendment Article 96 also avails another power for President while passing the order in pursuant to the resolution by the members of parliament for the purpose of impeachment of Judges. Specifically which does not say anything about the consultation with Prime Minister on this regard
- The amendment cannot be called in question to unconstitutionality as its upholds the dignity of independent judiciary under the meaning of the following provision:
“The State shall ensure the separation of the judiciary from the executive organs of the State”
if in anyway the provisions of Article 96 would have stated that impeachment will be made by the executive of Bangladesh then definitely it would be the violation of Article 22 of the Supreme Law of Bangladesh. While the power of impeachment has been vested to the parliament by the sixteenth amendment, it actually serves the purpose of Article 22 of the Constitution, which in reality demands a separate judicial system from the executive and not from the legislature.
Drawbacks of Sixteenth Amendment
A constitutional amendment refers to the modification of the constitution of a nation or state. In many jurisdictions the text of the constitution itself is altered; in others the text is not changed, but the amendments change its effect. The method of modification is typically written into the constitution itself. All of the world’s active national constitutions mention amendment procedures. Most of the Constitutions are made with a view to provide certain benefits to state or more specifically to clear ambiguities. But sometimes amendment with no future observations creates ambiguities and hassles for the state. Sixteenth amendment also provides certain drawbacks in this regard which may be an obstacle in relation to an Independent Judicial system of Bangladesh. Some the drawbacks are enumerated below:
- For that the primary objective of the 16th Amendment Act 2014 is to destroy the principle of Independence of Judiciary and to make the Judiciary ineffective to safeguard the Constitution; the principle of Independence of Judiciary as one of the basic features of the Constitution enshrined, particularly, from Article 22, Article 94(4), Article 116A of the Constitution as expounded in the Case of Anwar Hussain Chowdhury V Bangladesh (popularly known as the 8th Amendment Case), reiterated and reaffirmed in Masdar Hossain’s Case is compromised by the 16th Amendment Act 2014 giving overwhelming authority to the executive through Parliament to impeach the Supreme Court Judges which is a vicious blow on the Judiciary and a blatant interference that violently torn down the very fabric of the Constitution and demolished its structural integrity.
- Although Article 96 after the sixteenth amendment empowers the parliament to impeach Judges of Higher Courts still technically the issue is handled by the executives of Bangladesh. Because most of the ministers who are part of executive of Bangladesh, they also represent themselves as the members of parliament. In a clear word practically it can said that, there is no difference between persons belonging to executives and legislature in Bangladesh. Therefore, ultimately executive has gained the control over judiciary in relation to impeachment by the sixteenth amendment. Which prima facie seems to be violating Article 22 of the Constitution of the People’s Republic of Bangladesh
- Nevertheless the Article 96 of the Constitution of Bangladesh, gives the power to the President to pass order for the ultimate decision of impeachment but still the question lies, what should be the consequence if the President doesn’t give assent to the resolution of parliament; or how much value does President bears in relation to the passing of the process of impeachment. These question are arising due to similar situation as described in law making process under the provisions of the constitution where even if, President doesn’t gives his consent; after a certain time law will be automatically passed. Though Article 96 doesn’t say anything like that but question remains in assumption
- Moreover although the President has the sole power to make decision in relation to the impeachment of Judges still, because of the power given to the MPs under Article 52 of the Constitution of Bangladesh it seems a little difficult President to make any descending opinion against MPs resolution.
- 16th Amendment Act 2014, seems ultra vires to the Constitution as it is in direct conflict and contradictory to spirit of the preamble of the Constitution in as much as our constitutional pledge, as stated in the preamble, inter alia, that democracy and socialism meaning economic and social justice shall be fundamental principles of the Constitution; further pledge that it shall be a fundamental aim of the State to realise through the democratic process to socialist society, free from exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens; moreover the affirmation in the preamble that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh are being restricted, hampered due to the 16th Amendment Act 2014 by weakening the Judiciary, the most important and the conscience keeper of the State.
- Again, 16th Amendment Act 2014 seems ultra vires to the Constitution as it is in violation of Article 7B of the Constitution as no provisions relating to the basic structures of the Constitution shall be amendable by way of insertion, modification, substitution, repeal or by way of other means as much as since the separation of judiciary as well as the independence of judiciary are the most fundamental cornerstone of the basic structure of the Constitution, enactment of 16th Amendment Act 2014 literally destroyed them which cannot be done under Article 7B of the Constitution.
5.3 Advantages of Sixteenth Amendment
Even though there are many points by which Sixteenth Amendment of the Constitution of Bangladesh can be called in question with regard to its validity, eventually there are some advantageous points of this amendment. These are given underneath:
- The power to remove a Judge of the Supreme Court on the ground of his misbehavior or incapacity was previously conferred to the Supreme Judicial Council instead of the Parliament substituting Article 96 of the Constitution enacted in 1972, by the military ruler through unconstitutional means of Martial law namely the Second Proclamation Fifteenth Amendment) order, 1978. The said martial proclamation is against the spirit of Article 7 of the Constitution. Hence via Sixteenth Amendment such spirit has been reinstituted.
- In most of the democratic countries in the world, the principle of accountability of judges of the Superior Court, like other organs of the state, lies in the parliament consisting of elected representatives of the people. Hence the process also falls under domain of democracy
- Moreover the previous mentioned issue also reflects the theory of separation of power with checks and balances. And it’s not violative to the spirit of Article 22 or more specifically Independence of Judiciary as it separates or does not imposes the authority to impeach the judge by any member of executive but to the MPs whom are elected by the votes of Republic whom bear all the power under the meaning of the Supreme Law.
- Additionally this amendment was expedient and necessary for the revival of Article 96 of the Constitution enacted in 1972.
 Article 96(1), The Constitution of the People’s Republic of Bangladesh
 Article 96(2), Ibid
 Article 96 (3), Ibid
 Article 96 (4), Ibid
 Md. Abdul Halim, Constitution, Constitutional Law and Practices: Bangladesh Perspective, 3rd Edition, CCB Foundation, 2014
 Article 96(2), The Constitution of the People’s Republic of Bangladesh
 Article 96(3), Ibid
 Article 95, Ibid
 Article 56(3), Ibid
 Article 22, The Constitution of the People’s Republic of Bangladesh
 Mahamudul Islam, Constitutional Law of Bangladesh, 2nd edition, Mollick brothers, 2003, pg- 146
 Anwar Hussain Chowdhury V Bangladesh [1989 BLD (SPL) 1]
 Masdar Hossain’s Case [52 DLR (2000) 82]
 Article 7, the Constitution of the People’s Republic of Bangladesh
 Preamble, The Constitution (Sixteenth Amendment) Act, 2014