What makes the 16th amendment verdict so contentious?

Courier Asks
Saturday, August 19th, 2017
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The storm that has raged over Appellate Division’s verdict upholding the decision of the High Court to scrap the 16th amendment to the constitution that dealt with removal of judges of the HC (provided valid grounds), is by now assuredly unprecedented. The earliest sticking point that emerged from the ruling centred on what was to happen next, in light of MPs’ clear disagreement with the ruling, and their sovereign role as representatives of the people, from whom all power derives as stated in the constitution.

 

Looking at the constitution nowhere does it say that a Supreme Court ruling is binding on Parliament and there are several articles that suggest Parliament remains the supreme law maker. To name a few:

 

(1) Subject to any law made by Parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it.

 

(1) The Appellate Division shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division.

 

The issue does not seem as clear cut as some lawyers would like to pretend. What is clear is that an alignment of political forces and the judiciary could occur but this has little to do with the law and more to do with self-interest. We may be seeing a similar development here with the 16th amendment case where some lawyers are pretending to be radical but are actually being very conservative and attempting to maintain the status quo. The general public initially  appeared to be disinterested, but the government’s overreaction has left no room for indifference.

 

Whether Parliament, an elected body, is supreme in the making and framing of laws or is it the Supreme Court which is a body whose members are appointed rather than elected. The Supreme Court can certainly interpret the laws passed by Parliament and may even rescind or annul any law that offends against the terms and provisions of the constitution. It is presumed that is what the Supreme Court has done in the 16th amendment case but Parliament is fully entitled and empowered to pass a new amendment.

 

The issue in the 16th amendment case is whether Parliament should be permitted to remove judges or a Supreme Judicial Council. In other countries Parliament, under certain specific circumstances and conditions is able to remove judges for having committed offences or for negligence or for just plain incompetence. The situation in Bangladesh is considerably different with many questioning the legitimacy of the present Parliament after the 2014 elections and even the CJ appearing to hint at the issue in his judgment with the point being whether such a Parliament is the appropriate institution to decide on the removal of judges.

 

The remaining question is whether the Supreme Judicial Council has been an effective body in removing errant judges and the answer is probably not. It would seem then that neither the government nor the Supreme Court is on strong legal ground except that the latter likely has more moral authority but only barely.

 

And with each day’s passing, it would seem the political dimension just annihilates the legal aspects. In the latest issue people are raising, both the law minister and AG have accused the CJ of belittling or undermining Bangabandhu Sheikh Mujibur Rahman – although the offending words they have chosen to latch on to thid.

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