An Overview of the Impeachment of Supreme Court Judges in Bangladesh
The first constitution of Bangladesh, drafted in 1972, gave the Parliament the power to impeach the judges of the Supreme Court (SC). Then, following the fourth amendment, the President of Bangladesh was vested with this power. However, the Fifth Amendment legalized the formation of a Supreme Judicial Council (SJC). And the SJC, consisting of the Chief Justice and two next senior-most judges of the Supreme Court, was empowered to impeach judges on the grounds of proven misbehavior or incapacity.
The higher judiciary of Bangladesh is not totally free from the reins of the executive while performing its functions. This is evident from the fact that the President after prior consultation with the Chief Justice and on advice from the Prime Minister would appoint judges in the SC, as per articles 95(1) and 48(3) of the Constitution respectively.
After their appointment, the question arises as to their tenure of office and circumstances of misconduct due to which a justice can be impeached. However, the 16th amendment restored the power of impeachment of SC judges back to the Parliament.
In accordance with the newly-inserted article 96(2) of the Constitution has restored the power to the parliament to impeach the judges of the Supreme Court followed by an order of the President. Article 96(3) has empowers the parliament to regulate the procedure by law.
This prompted the debate once again as to whether the Parliament should have such authority over the higher judiciary or not. The Law Minister commented, “The independence of the judiciary will not be hampered because of the amendment. The Supreme Court judges will be able to discharge their regular duties independently.” But there is a possibility that such an amendment would halt the judiciary from functioning independently.
On 5th May, 2016, a special bench of three High Court (HC) judges declared the 16th amendment illegal, unconstitutional and against the principles of the separation of state powers and the independence of judiciary. The HC observed that although in the UK, the USA, Canada, Australia, India etc. the Parliaments preserved such powers, the MPs of those countries had total freedom of performing their duties. But this is not so in Bangladesh.
Referring to article 70(b), the HC remarked, “Our MPs are not able to vote against the party’s decision even after the party took the wrong decision. If the 16th amendment is upheld, judges will have to seek mercy from Parliament members.” Moreover, the HC noted that the previous instance of the SJC was the best policy to impeach the justices.
On February 8, 2017, the SC announced 12 lawyers as amicus curiae or friends of the court, to hear their opinions when it hears the State’s appeal against the verdict. Leaving the power of impeachment of the Supreme Court judges to the hands of the Supreme Judicial Council will not only consolidate the image of the judiciary but also assure the common people of the independence of the higher judiciary; which is a much needed step to reinvigorate the rule of law and justice in Bangladesh.
The writer is a student at Department of Law, University of Dhaka.