Eyebrows raised on the independence of Judiciary in Bangladesh

Eyebrows raised on the independence of Judiciary in Bangladesh

In an unprecedented move by the Supreme Court Judges in Bangladesh, the Chief Justice S. K. Sinha has been accused of graft allegations. The all five SC Judges refused to sit with him. In fact, the President of Bangladesh had handed over a list of 11 allegations to the top four SC Judges on 30 September 2017 which, inter alia, include money laundering, financial irregularities, corruption, moral degradation etc.

The government’s row with the judiciary sparked in July this year when the Supreme Court delivered a judgment declaring the 16th Constitutional Amendment unconstitutional and void. It also scrapped the Parliament’s authority over removal of SC judges. The Constitution of Bangladesh, 1972 under Article 96 (2) in Part IV, Chapter I states that ‘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 misbehaviour or incapacity.’ By declaring the 16th Amendment null and void the Supreme Court restored a military rule-era provision which allows only a Supreme Judicial Council, led by the Chief Justice, to remove judges found to have breached the judicial code of conduct. Most of the senior lawyers had hailed the decision that because of this landmark judgment the executive would have no dominant role over the judiciary safeguarding its independence. It was apprehended that the 16th Amendment would have made the top judges subservient to the government as they would have been under constant threat of removal.

The Supreme Court of Bangladesh has two separate divisions in the context of jurisdictions, the High Court Division and appellate division. Article 101 deals with the jurisdiction of the High Court division, while Article 103 enshrines the jurisdiction of the Appellate division. The assertive decision by the SC to struck down the Amendment was to safeguard the independence of judiciary. Moreover, the SC had also increased pressure on the government to frame a code of conduct for lower court judges who are alleged to have been largely influenced by the government.

The Opposition party in Bangladesh says that the Chief Justice was forced to take leave by putting him under enormous pressure. Similar statements were also made by the Chief Justice himself raising the eyebrows.

A comparative study of the Constitutional provisions of India and Bangladesh makes it evident that though Bangladesh also is a democracy politically, the independence of judiciary has always been under question. On the contrary, the Constitution of India fully ensures such an independence. The Supreme Court of India in L. Chandra Kumar v. Union of India AIR 1995 SC 1151 held that though all judicial powers were vested in the Constitution, the independence of judiciary was fully secured as it was founded on the principle of Separation of Powers. The removal of judges in India under Article 124(4) enshrines that the allegations shall be inquired into under the Judges (Enquiry) Act, 1968. Further, the resolution so passed by the Parliament shall be presented before the President during in the same session. Most importantly, unlike Bangladesh, in India, such a decision of Parliament by way of a resolution may be judicially challenged as the inquiry is done under a law.

The neighbours of India shall and must take into consideration the strength of India’s perfect democratic constitution if they intend to sustain their democracies.

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