Topic: 16th Amendment of the Constitution of

Bangladesh

Title:

The constitutionality of 16th Amendment of the Constitution of the

Peoples republic of Bangladesh: An Analysis in the light of the Verdict
Given by the Supreme Court

1
 TABLE OF CONTENTS

Acknowledgements vii

Chapter 1
INTRODUCTION
1.1 Introduction 1
1.2 Statement of Problems 1
1.3 Objective of the study 2
1.4 Research Methodology 2
1.5 Conclusion 2
Chapter 2
16TH AMENDMENT
2.1 Subject Matter 3
2.2 How it works 4
2.3 Independence of Judiciary 6
2.4 Philosophy behind the formation of judiciary 6
2.5 Conditions of independence of judiciary 8
Chapter 3
BASIC STRUCTURE OF JUDICIARY IN BANGJADESH
3.1 Accountability of the Higher Judiciary 12
3.2 Independence of Lower Judiciary 13
3.3 Constitutionalisation of Subordinate Courts and Controversy with their
Independence and Separation 13
3.4 Drafting the Constitution and the Question of Separation of Judiciary 15
3.5 Constitutional Basis of Independence of Judiciary 15
3.6 Independence of Higher Judiciary 16

2
Chapter 4
JUDICIAL SYSTEM IN BANGLADESH
4.1 Chief Justice and other Judges of Supreme Court 20
4.2 Independence of the Judges 21
4.3 Seat of the Supreme Court 23
3.4 Jurisdiction of High Court Division 24
4.5 Power of Judicial Review 24

Chapter 5
CONSEQUENCE OF 16TH AMENDMENT FOR JUDICIARY
5.1 Supreme Judicial Council is formed 26
5.2 Provision of 16th amendment 27
5.3 How did it amend? 28
5.4 Analysis of 16th amendment 30

Chapter 6
CONCLUSION
6.1 Recommendations 32
6.2 A note of caution and vigilance 33
6.3 Conclusion 36

REFERENCES 39

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 Chapter 1
INTRODUCTION
1.1 Introduction
Independence of judiciary means a fair and neutral judicial system which can afford to
take its decision without any interference of executive or legislative organ of the state.
Independence of judiciary truly means that judges are in a position to render justice in
accordance with there own oath of office and only in accordance with there own sense of
justice without submitting any kind of pressure or influence be it from the executive or
legislative or from parties themselves or from the superiors or colleges.1 Separation of
judiciary universally ensures the independence of judiciary and safeguards the rights of
the people freedom, without previously independent courts and tribunals to resolve
disputes independently.
16th Amendment, a new law will be introduced to guide the investigation and gathering
of evidence on incapability or misconduct of a judge. The judge will be sacked if the
accusations are proved. Through this latest amendment, the power to remove judges has
returned to Parliament after 40 years.

1.2 Statement of Problems

This is not the first time that the country has faced the question of how to supervise its
top judges. Bangladesh's original constitution, drafted in 1972, gave MPs the power to
impeach Supreme Court judges. Following amendments in 1975 and 1978, this authority
was transferred first to the president and then to a Supreme Judicial Council. The most

1
[[Link]
2014-passed Last Visit 22.05.2017].

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recent verdict of the Supreme Court would return the power of disciplining the court's
judges to this council.

1.3 Objective of the study

The main objectives of my research are to analyze the 16th amendment of the
constitution of Bangladesh

(1) To analyze the 16th amendment of the constitution of Bangladesh

(2) To find out the causes and consequences of 16th amendment of the constitution of
Bangladesh
(3) To analyze the role of law.
(4) To focus on the existing laws.
1.4 Research Methodology

As the Research Paper is that 16th amendment of the constitution of Bangladesh. I have
submitted a critical review of the problems and the study intends to cover almost all the
circumstances that have an influence on defining the standards of and I also submitted the
recent information. To make this research paper I have to Collected Primary data have
been collected from the different sources of various persons such as legal authorities,
some experienced persons, the person who has research on the same topic. The secondary
data have been collected from various books written by various experienced scholars
from some public universities and private universities and some website. These two types
of data have been combined to complete my research paper. In my research Paper I also
have shared the observations, comments and recommendations of various authors.
1.5 Conclusion
According to the amendment, not only the judges, parliament can also remove the chief
election commissioner and commissioners of the Election Commission, the chairman and
the members of the Public Service Commission, chairmen and the commissioners of the
Anti-Corruption Commission, and the Comptroller and Auditor General on similar
grounds.

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 Chapter 2
16th AMENDMENT

2.1 Subject Matter

Bangladesh amended the constitution of Bangladesh empowering Parliament to impeach
Supreme Court judges. Article 96 of the Bangladesh Constitution, which includes
provides on the tenure of office Of the Supreme Court now States:-
(1).Subject to the other provision of this article a judge shall hold office he attain the
age of sixty – Seven years.
(2).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 third of the Total number of member of parliament, On the
ground of proved misbehavior or incapacity.
(3).Parliament May by law regulate the procedure relation to resolution under
Clause(2) and for investigation and proof of the misbehavior or incapacity of the
Judge.
(4).A Judge may resign his office writing under his hand addressed to the
president before The adoption of the Sixteen Amendment 96(2) and (3) of the
Bangladesh Constitution under Included a provision on impeachment carried out
by the Supreme Judicial Council instead Of the parliament.
(5).There shall be Supreme Judicial Council in this article referred to as a Council
which shall Shall consist of the Chief Justice of Bangladesh ,and two next senior
Judge.
The parliament standing Committee on the Ministry of law Justice and Parliament
Affairs Had proposed the legislation now adopted as law that suggested
replacement of sections 2 through 8 of article 96 with the Sections 2,3 and [Link]

6
draft amendment was passed With a 327-0 vote based on the recommendation of
the Parliamentary standing Committee.2

2.2 How its Works

The Jatiya Sangsad today unanimously passed the much talked the Constitution
Sixteenth Amendment bill 2014 restoring the parliament’s power to remove
Supreme Court Judges for their misconduct and incapacity. Law, Justice and
parliament Affairs Minister Anisul Hague piloted the bill for its passage saying the
Constitution amendment bill is aimed at restoring the dignity of the judiciary and
ensuring accountability of the higher court judges. As many as 14 Parliament
members brought amendment proposals to the bill recommended soliciting public
opinion and sending it to the select committee before passage of the bill. The
Minister placed the bill in the house on September 7 with a proposal for
amending different sections of the removal of the Supreme Court judge. During
security of the bill, the Parliament standing Committee on the Ministry of law,
justice and Parliamentary affairs Brought significant changes to the preamble of
the proposed law and suggested replacement of the section 2,3,4,5,6,7 and 8 of the
article 96 of the Constitution with the new sections 2,3 and 4 mentioned below.
The new section (2) say a judge shall 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 member Of the Parliament on the
ground of proved misconduct or incapacity. The Parliament Under(2) of Article
93(A) would be able to control the Procedure of investigation and Proved
misconduct and incapacity of the judge through law. The Article 94 says any Judge
can reigns through a letter with signature to the President. The Section 3 of the
Article 96 say parliament shall by law regulate the Procedure in relation under

2
[[Link]
2014-passed Last Visit 20.07.2017]

7
close(2) and for investigation and proof of the investigation and proof of the
misconduct or incapacity of a judge. The Section 4 say a judge may reigns his
office by sending a signed letter addressed to the President. Besides, new
statement on the objective of the bill was given in the parliamentary standing
committee report instead of the objective of the Placed bill. The statement of the
Committee on the bill says in accordance with Article 7 and 11 of the constitution
of the Peoples Republic of the Bangladesh , all powers in the Republic belong to
the people and their exercise on Behalf of the people shall be effected only under,
and by the authority of this Constitution.
There was a provision in the article 96 of the 1972 Constitution regarding
impeachment of Supreme Court judge 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 the Scope of replying show
cause notices mentioning actions against them on the ground of misconduct and
incompetence.
But in 1977 and 1978 a provision incorporated in the constitution giving the
authority of Impeachment of Supreme court Judge on the grounds of misconduct
and incapacity to the President following recommendations of the Supreme judicial
Council formed by Supreme Judicial Council form by the Chief justice and two
other senior judge of the Supreme Court. In most of the democratic countries in
the world the principle of accountability Of the judge of the Superior court, like
other organs of the state , lies with the parliament consisting of the elected
representatives of the people. Under the perspective, the Confidence of people in
the independent judicial system Would be increased and transparency in this
regard would be ensured with the Enactment of the law, the objective of the bill
said. Prior to passage of the bill the Law minister in his speech said that the bill

8
has been brought in parliament for restoration of the 1972 constitution and
protecting the dignity of the Judiciary.

2.3 Independence of Judiciary

Independence of judiciary truly means that the judges are in a position to render justice in
accordance with their oath of office and only in accordance with their own sense of
Substantive Independence, which is also described as functional or decisional
independence means, the independence of judges to arrive at their decisions in
accordance with their oath of office without submitting to any kind of inside or outside
pressure (from government and other centers of power, public and private; and on the
other hand, the inside pressures from parties themselves) but only to their own sense of
justice. In determining the minimum slanders of judicial independence the international
Bar Association suggests in 1982 mat in discharge of his judicial function of a judge is
subject to nothing but the law and the commands of his colleges.3

2.4 Philosophy behind the Formation of Judiciary

One of the primary objects for which a state was established in the society was the
creation and protection of individual’s rights. But an independent organ as the means
through which this object might be accomplished has been recognized an existed from
early times. This independent organ is judiciary. An investigating look from broader
point of view will reveal the idea that the existence of a judiciary does not depend on the
existence of a legislature. Because the legislature does not, in a sense create the rights of
individuals; it only recognizes the rights. Rights originate in the society as ultimate
results of mutual interactions among individuals interse or individuals and other social
organizations. This is why even in the absence of legislative organs the courts might
apply rules derived from other source like form their own previous decisions or form

3
Md. Abdul Halim, Constitution, Constitutional Law and politics: Bangladesh perspective, 4th ed.
(Dhaka: CCB foundation, 2008).pp. 339-340.

9
customs and thereby recognize rights of individuals. A society without a legislative organ
is conceivable , and indeed fully developed legislative organs did not make their
appearance in the life of the state until modern times but a civilized state without
judicial organs is hardly conceivable.4

2.4.1 Substantive Independence of the Judges

Substantive Independence, which is also described as functional or decisional independence
means, the independence of judges to arrive at their decisions in accordance with their oath of
office without submitting to any kind of inside or outside pressure (from government and other
centers of power, public and private; and on the other hand, the inside pressures from parties
themselves) but only to their own sense of justice. In determining the minimum standers of
judicial independence the international Bar Association suggests in 1982 that in discharge of
his judicial function of a judge is subject to nothing but the law and the commands of his
conscience.

2.4.2 Personal Independence

Personal independence means that judges are in no way under any interference of the
executive or legislative in discharging their judicial functions. In respect of personal
independence of the judges the international Bar Association says that it means that the
terms and conditions of judiciary service are adequately secured so as to ensure that
individual judges are not subject to executive control.

2.4.3 Collective Independence

Collective independence means the institutional administrative and financial independence
of the judiciary as a whole vis-a-vis other branches of the government namely the
executive and the legislative.

4
Md. Abdul Halim, Constitution, Constitutional Law and politics: Bangladesh perspective, 4th ed.
(Dhaka: CCB foundation, 2008). p.341

10
2.4.4 Internal Independence of the Judges

Internal independence of the judiciary means independence of judges from their

judicial superiors and [Link] other words, independence of a judges or a judicial
officer from any kind of order, indication or pressure from his judicial superiors and
colleagues in deciding disputes. Among these four types of independence of judges the
substantive independence is most important. Because it is the inner- strength of the judges
which provides the steering- force for them to maintain their impartiality in discharging judicial
functions. A part from this unlike collective individual and internal on their own sense of justice.
When a judge administers justice, it is presumed and expected that he will administer justice
impartially.5

2.5 Conditions of Independence of Judiciary

Independence of judiciary dependence on some conditions which are as under:
 Mode of appointment;
 Security of tenure; and
 Adequate remuneration and privileges.

Mode of appointment
As mention earlier the conditions for appointment of judges should be a healthy one so
that men of keen intellect, high legal acumen, integrity and independence of judgment
from among the lawyers get opportunity to be judges. If there is any scope of personal
favoritism and political bias in appointments, men of integrity and sense of justice will
not be appointed as judges and when the judges lake these qualities, they will administer
justice in a partial way resulting in low quality if judgment and such a situation will
compel the people to withdrew their confidence from the judiciary. So the substantive
independence which is the vital element of judicial impartiality depends on the mode of
appointment. As professor Garner says “If the judges lack wisdom, probity and freedom

5
Ibid, p. 342.

11
of decision, the high purpose for which the judiciary is established cannot be realized.
The existence of these necessary qualities depends in large measure upon the method by
which the judges are selected.

Election by the people

This system of popular election of judges was first introduced in France in 1970. But this
system was not a successful, for the masses of voters do not always possess the
understanding necessary to appreciate the soundness of judicial opinion. It was the result
of the elections which took place in 1973 that most of those who were elected were
engravers, stone-cutters, clerks, gardeners and common laborers who had no quality to
administer justice. This is why with the advent of Napoleon the system of popular
election was abolished. This method, of course, is now in vogue in some of the States of
the American Federal Union. The chief disadvantage if this method is that different
political parties nominate their candidates and people being influenced by the parties
elect a candidate though that particular candidate has no quality to administer impartial
justice. Judges, therefore, elected by this method become subject to popular passion and
prejudice. It tends to lower the character of judiciary. Again, it is impossible for a judge
to put for the electorate either a programmed or a personal success concerning has
judicial conduct. This is why Laski says that “of all the methods of appointment that of
election by the person at large is without exception the worst.”6

Election by the legislature

This method exists in Switzerland and in two States of American Federal Union. This
system is not consider good because in this system judges are nominated by political
parties in the parliament and the majority is sure to get his candidate elected whatever be
his quality to administer justice. It is contended that when a judge is elected with the

6
Md. Abdul Halim, Constitution, Constitutional Law and politics: Bangladesh perspective, 4th ed.
(Dhaka: CCB foundation, 2008). p.343

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support of the majority party, he will have to appease that party and it will be quite
impossible for him to deliver neutral justice.7

Appointment by the executive

The appointment of judges by the executive is the most common and available method of
choice and this system in vague almost all countries. This may be of two types
 by the executive independently; or
 by the executive after consultation with the court or from a list of
nominees presented by the court or with the consent of the legislature.
The first method is sometimes contended to be objectionable in the sense that
personal favoritism or political consideration may determine the appointments and
instances are cited from Britain, France, and USA and largely from third world countries.
Mr. Briand, when was the Minister of justice of France in 1912 himself declared that the
judges had become the pay of politicians?
The second method is most democratic and objective. Because when the court
prepares a list or the Chief Justice consults he, who is closely associated with the
performance of Bar, will select the name of those lawyers who are men of high legal
acumen, integrity, independence of justice etc. Such a method of appointing judges is
conducive to the development of the standard of judicial decisions on the one hand and
on the other hand, it is therefore, perfect to ensure impartial justice in the country.

Security of tenure
Security of tenure for the judges is most important in securing their independence and
impartiality. Security of tenure means that-
 Either judge is to be appointed for the whole life i.e. 65 or 75 years.
 During this tenure the conditions of service must be such that they can fearlessly
administer justice.

7
Ibid, p. 344.

13
 In other words, the power of transfer or removal of a judge must be a strict and
difficult one. If the transfer or removal of a judge is to depend upon the pleasure of
particular person or the executive, neither independence nor impartiality can be ensured.
In UK judges are guaranteed their security of tenure; they can be removed by the King
only when both the Houses pass a resolution presumed him for corruption or moral
turpitude. In the USA judges of the Supreme Court can be removed by impeachment. The
process of impeachment is difficult in that the House of Representatives prefers the
charges and the trial in held by the Senate,8

Adequate Remuneration and Privileges

In order to ensure the independence of judiciary it is essential, next to the permanency of
office, to provide judges with adequate remuneration and privileges. Adequate
remuneration and privileges includes include the following three things:
Firstly, the salaries, housing facilities, allowances and other privileges are to be such that
they can easily maintain a standard life and they do not have to think of corruption or
bribery. Again, if judges are ill-paid able persons may not be attracted to this profession.
Secondly, the conditions of salaries and other privileges must be such that they cannot be
varied to there disadvantages during the tenure of their office. This is why in democratic
countries judges are paid there salaries and allowances from the consolidated fund and
there is no need for the approval of the parliament for this payments every year.
Thirdly, after retirement a judge should receive pension person so that during his tenure
he need not indulge in corrupt practices and he can lead a peaceful retired life.

8
Ibid, p. 347.

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 Chapter 3
BASIC STRUCTURE OF JUDICIARY IN BANGLADESH

3.1 Accountability of the Higher Judiciary

The independence of judiciary does not mean that the absence of responsibility for the
action of a judge. Judicial independence without judicial accountability may generate
both abuse and misuse and hence judicial independence involves the concept of judicial
accountability of the judges. Agreeing fully with the views expressed by the Chief Justice
Latifur Rahman in his extra-judicial capacity this author quotes him:
The original Constitution Article 96(2) provided that the parliament by not less than
two-thirds of the total number of member of parliament can remove a judge on the
grounds of proved misbehavour or incapacity. The removal procedure in most of the
countries remain with the parliament. After amendment of Article 96(2) this power has
been given to the Supreme Judicial Council which consists of the Chief Justice and two
next senior judges of the Supreme Court of Bangladesh. As the Constitution reposed this
power in the Judges themselves the obligation and responsibility lies on them to
formulate a Code of Conduct under the Constitution to be strictly followed for proper
functioning of the superior courts. It may be mentioned here that the Supreme Judicial
Council never sat in the past nor did any deliberation take place.9
Article 96(4) authorizes the Supreme Court to prescribe a Code of 'Conduct for the
judges in both the Divisions. Though Article 96 provides for removal of judges from their
posts, the idea of accountability has nothing to do with his removal from his off ice

9
Md. Abdul Halim, Constitution, Conititutinal Law and politices: Bangladesh perspective, 4th ed.
(Dhaka: CCB foundation, 2008), p. 359.

15
Judicial accountability means accountability to the Code of Conduct formulated under the
Constitution.

3.2 Independence of Lower Judiciary

The larger portion of our population is directly connected with :he litigation in the courts of
the subordinate judiciary. JTlie, subordinate judiciary is the base and. foundation of the
judiciary. However, unfortunately since our independence the""subordinate judiciary lacked
independence and hazardous problems beset with it where the mass of litigants come with a
hope to get justice. In line "with the judgment of the Appellate Division in Masder Hosain
case the caretate government headed by Dr. Fakhruddin Ahemd finally completed the task of
separation of judiciary from the clutches of the executive on 1st November, 2007.10

3.3 Constitutionalisation of Subordinate Courts and Controversy with their

Independence and Separation
Article 115 deals with the appointment in the subordinate judiciary. It states that appointments
of persons to offices in the judicial services or as magistrates exercising judicial functions shall
be made by the President in accordance with rules made by him in that behalf. Thus the
executive is the absolute maker of the judges and judicial officers in the subordinate judiciary
as well as in the magistracy' In the original Constitution there was provision of consultation
with the Supreme Court which was deleted by the 4th Amendment. ^Thus no objective
assessment is possible in the appointment of judges in the subordinate judiciary. As to the
control and discipline of subordinate courts Article 116 states that this shall be exercised by
the President in consultation with the Supreme Court. However, this consultation with the
Supreme Court has never been institutionalised and there are practical problems in doing this.
This is because, first, the appointment was done absolutely by the executive;
second, all logistics and staff of the subordinate courts were provided and regulated by the
Ministry of Law; third, neither the Supreme Court nor subordinate courts had any power to

10
Ibid, p. 360.

16
regulate the finance to moderate and devise its plan and functions; fourth, though there is
Public Servants (Discipline and Appeal) Rules 1985 prescribing different modes of
punishment of a judicial officer, the Supreme Court has not yet made any rule in this regard to
be followed by the executive in question of control and discipline of judicial officers.
However, unfortunately for reasons, principally, of some legal shortcomings these courts were
playing negative role at a greater extent frustrating the very purpose of criminal justice. The
shortcomings were as follows:
All Magistrates were linked with the executive functionaries. "Magistrates were
discharging dual functions - judicial and executive. They were controlled by the Ministry of
Establishment, the Ministry of Home Affairs and also the Ministry of Law, Justice and
Parliamentary Affairs. In discharging their judicial functions they were very often dictated and
influenced by the executive. As a result, they could not independently discharge their judicial
functions. It is impossible for a judge to take a wholly independent view of the case he is
trying, if he feels himself to any extent interested in or responsible for the success of one side
or the other.; It is equally impossible for him to take an independent view of the case before
him if he knows that his posting, promotion and prospects generally depend on his pleasing
the executive hand.11
Magistrates discharging judicial functions were never appointed from persons with legal
discipline. It is sometimes impossible to expect justice from a person with no institutional
legal education. Being first class executive officers Magistrates often did injustice. This is
mostly the case because, firstly, they took the opportunity of illiteracy and ignorance of law of
mass indigent litigants and secondly, there was inherent lack of administrative check and
balance in Magistracy and thirdly, they were not under the unfettered control of the Supreme
Court.

11
Ibid, p. 361.

17
3.4 Drafting the Constitution and the Question of Separation of Judiciary
In the new constitution adopted in 1972 it was provided in article 22 that "the state shall ensure
the separation of judiciary from the executive organ". Article 115 provided further that
"Appointments of persons to offices in the judicial service or as magistrates exercising judicial
functions shall be made by the President in accordance with the rules made by him in that
behalf." Compared to earlier initiatives what differences do we see in the constitution of
1972? We see that the matter of subordinate judiciary including the magistracy has been given
place in the Constitution unlike the Constitutions of Pakistan and India.
Though it is sometimes argued that the original Constitution of Bangladesh ensured full
independence of the judiciary, the fact is that it has ensured the independence of the higher
judiciary but not of the lower judiciary.-Jt is the Magistrates' courts where the largest section
of our population set their footsteps to get justice. While the Constitution was being drafted
Dr. Kamal Hossain, the Chairman of the Drafting Committee and Barrister Amir-Ul Islam, a
member-these two persons were most famous legal experts and they played the key role in
drafting. In 1997 while writing this book this author asked them some questions-Was there
any problem to provide for separation of judiciary at first hand? What principle prompted the
Constitution makers to retain the mixed judicial function with the executive.
In response to the first question Barrister Amir-Ul Islam told that at the first hand,
provision was not incorporated to separate Magistrate's courts from the executive considering
the question of departmental flexibility; if provisions were made for separating magistrate's
courts, a separate department would have to be created which would certainly claim a huge
amount of money from the public purse.12

3.5 Constitutional Basis of Independence of Judiciary

To know how far the judiciary in Bangladesh is independent first of all we have to
evaluate our system and provisions and to see how far conditions for independence of

12
Ibid, p. 363.

18
judiciary have been maintained. And in doing this it would be convenient to discuss the
present system of judiciary in two broad divisions:

3.6 Independence of Higher Judiciary

Method of Appointment
As mentioned earlier the conditions for appointment of judges in the Higher Judiciary
should be a healthy one so that men of keen intellect, high legal acumen, integrity and
independence of judgment from among the lawyers can be taken as judges. But the
provisions for appointment of judges of the Supreme Court in the present Constitution are
not healthy enough to satisfy this requirement. The present provision for appointments is
that the Chief Justice and other judges shall be appointed by the President (Article 95).
Thus the appointment depends on the sole wish of the executive which may create
personal favouritism and political bias in the appointments. We will see that this practice
of consultation has been violated by governments in recent history of judicial
appointments!13

Appointment of Additional Judges

Under Article 98 the President is empowered to appoint one or more qualified persons as
additional judges for two years. But here the objectionable point is the 'proviso' of the
Article where it is said that the President may appoint such an additional judge as a
regular judge or for a further period. This is objectionable in the sense that the power-
expectation among such additional judges to get regular judgeship may greatly hamper
their discharging impartial justice.

Disabilities of the Judges

Under Article 99 a retired or removed judge may be appointed by The president in
judicial or quasi-judicial offices and may also be appointed as a Minister, Deputy

13
Ibid, p. 348.

19
Minister or President which are not regarded as profitable posts under Article 66(2). This
provision is a great hindrance to the independence of judiciary in Bangladesh. Because as
Ahmed J. said, "opening up of opportunities for appointment after retirement will serve
as a temptation and temper with his independence during the concluding period of his
service
There is no healthy provision for appointment of men of keen intellect, high legal
acumen, integrity and independence of judgment from among lawyers. This has the
likelihood of resulting in low degree in judicial decisions even though the judges are
completely free after their appointment.

Consultation with the Chief Justice and Politics in the Appointment of Judges
'The Higher Judiciary of a country is seen by ordinary people not as a necessary part of
the government but as a forum of justice; a forum of last hope to get redress against the
governmental actions; an image and prestige built on time-honoured undisturbed
organisational independence within the judiciary is the bastion of this aspiration by the
people. However, in the very recent history of our higher judiciary people have seen to
their dismay that the last bastion of judicial independence is on the verge of being
crumbled. Evidence of this dismal scenario is clear from the three spheres of appointment
of judges in the higher judiciary.14

Incident One
In February 1994 the then BNP Government issued a Gazette Notification with a list of 9
judges to be appointed as Additional Judges in the High Court Division. The arrangement
of these appointments was made without consulting the Chief Justice. It was revealed on
the same da]' when the Chief Justice in inaugurating the lawyers conference of
Bangladesh Bar Council stated that he was 'Mr. Nobody'. This obviously meant that the
appointments were made without consulting aim. The following day the Supreme Court

14
Ibid, p. 350.

20
Bar Association unanimously condemned the action of the President and demanded the
cancellation of the notification. In another resolution the Bar requested the Chief Justice
not to administer oath to newly appointed judges.

Incident Two
''in 2001 before the AL Government ended its term, it appointed some additional Judges
in the High Court Division on two occasions. In the first instance in February 2001
the government appointed 9 Additional High Court Judges under Article 98 of the
Constitution. After two years in February 2003 the confirmation of ilicse appointments as
regular judges came to be considered by the I5NP led coalition government. However,
the government did not confirm the services of 7 additional judges out of 9.

Incident Three
In the second instance in July 1, 2001 the AL Government appointed 9 Additional High
Court Judges. On July 2, 2003 the BNP Government did not confirm the services of 4 of
these 9 additional judges. It is contended that the Chief Justice had recommended in
favour of all of them. It is to be mentioned that following the non-confirmation of 7
judges out of 9 additional judges in February 2003 three Writ Petitions were moved to the
High Court Division; a rule was issued on May 05, 2003 on the Government asking it to
explain why non-appointment of additional judges should not be declared illegal. In view
of the above three incidents, it may now be turned to the constitutional implications of
appointment procedure. Is the President constitutionally bound to appoint and confirm
judges in consultation with the Chief Justice? The plain and blunt answer would be 'No',
as nowhere in Articles 95 or 98 is there any reference to the concept of 'consultation with
the Chief Justice'. True is also the fact that under Article 48(3) the President has to
perform every functions in accordance with the advice of the Prime Minister except that
of appointing the Prime Minister and the Chief Justice.15

15
Ibid, p. 351.

21
 What is the position in Britain and India on this point? In question of appointment of
Chief Justice a trend is obvious in most countries including some democratically
developed countries like Britain. The appointment of the Chief Justice is left mostly in
the hand of the executive in an unfettered way. However, no complaint as to partiality in
this appointment has ever been heard in developed countries. For example, Lord
Chancellor is appointed by the Queen. She appoints him in accordance with the advice of
the British Prime Minister. Lord Chancellor is at once the head of the Judiciary in Britain,
head of the House of Lords and an important member of the cabinet. An apprehension
may, therefore, arise in question of his appointment that Prime Minister will advise the
King to appoint such a person who is likely to act in favour of the government. But the
truth is that no such complairit was ever raised in Britain regarding this important
appointment.
Burning back to Bangladesh scenario an incident during the Ershad regime may now
be recalled. An attempt was made by the President Ershad to supersede Justice
Sahabuddin Ahmed when the then Chief Justice B. H. Chowdhury retired. However,
under the continuous boycotting of the courts by the lawyers Ershad was bound to
appoint Sahabuddin Ahmed as the Chief Justice of Bangladesh. The recent appointment
of Justice K. M. Hasan as the Chief Justice of Bangladesh has already signaled the
politics of superseding in the appointment of the Chief Justice which bear a likelihood of
casting far reaching bad impact on this honorable post. It is fortunate that the superseded
two senior judges have accepted this. The Government also contends that by appointing
Mr. Hasan as the Chief Justice has been done to him as he was superseded in the High
Court Division. If this be the rationale, let it be an exception; an exception once and for
all in view of the fact that the image and prestige of the whole judicial administration is
attached to this honorable post.

22
 Chapter 4
JUDICIAL SYSTEM IN BANGLADESH

4.1 Chief Justice and other Judges of Supreme Court

Appointment of Judges: (The Chief Justice and other Judi'. of the Supreme Court of both
the divisions are appointed by President. In the matter of appointment of the Chief
Justice tin President is not required to act on the advice of the Prime Minisk-i 01 the
Cabinet', but the President is to act on the advice of the Prim.
Minister in the matter of appointment of the puisne Judges. The Constitution
originally required to consult the Chief Justice in the matter of appointment of the Judges
of the Supreme Court16.
The Fifteenth Amendment, however, re-introduced the provision of with the
Chief Justice in the matter of appointment of ihc Judges of the Supreme Court. The Chief
Justice and other Judges nl' (he Supreme Court are to take oath in terms of art. 148 before
upon office. Under art. 98 a judge is appointed for a fixed i'.-nod of two years as an
additional judge in the High Court Division mi.i he takes oath as such which cannot
extend beyond the period of tuo years, while appointment under art.95 is a
permanent 'I'ointment and upon such appointment, the incumbent has also to oath. But
the two oaths are distinct and separate for all irposes.2 Rule of law, one of the basic
features of the Constitution, m res appointment of competent persons as judges of the
Supreme him. The High Court Division held that a heavy duty is cast upon nliamcnt to
see and monitor as the controlling authority of the riiment that no person unworthy of the
post is ever appointed.

16
Md. Mahamudul Islam, Constitutional Law of Bangladesh, 3rd ed. (Dhaka: Mullick Brother,
2012). pp. 578-579.

23
The Chief Justice objected to such a method of appointment. The executive government
denied any constitutional requirement of consultation, was pointed out from the Bar that
the process of consultation her, been followed consistently from the time of the British
Rule even though there was no constitutional or legal requirement consultation
N The government ultimately had to accept the contention of the Chief Justice and the
Bar.2 Such a consultation is not a [Link] matter. It must be an effective consultation and
the recommendation of the Chief Justice should not be by-passed unless there be cogent
reasons for it At the turn of the century, appointment judges and their confirmation
became the subject matter of aniline case in which the Appellate Division held that such
consultation i absolutely necessary for the independence of the judiciary whk-li i one of
the basic features of the Constitution. The apex court held constitutional conventions may
fruition into constitutional rules in U enforced by the court and the convention of
consultation with tin Chief Justice is such a convention which, becoming a part
constitutional law of the country, shall be enforced by the court.
If the office of Chief Justice becomes vacant or if the President is satisfied that on
account of illness, absence or any other cause the Chief Justice is unable to perform his
functions, the lions of the Chief Justice shall be performed by the next senior most judge
until some other person enters that office or, as the case may be, the Chief Justice
resumes his duties. If at any time the President is satisfied that the number of Judges in
any of the divisions, should be increased, he may appoint additional Judges for a period
not exceeding two years or require a Judge of the High Court. Division to sit in the
Appellate Division as and dd hoc judge Such additional judges may be appointed as
permanent judges or as additional judges for a further period.17

4.2 Independence of the Judges

Independence of judician i sine qua non of modern democracy and so long as judiciary
rein truly distinct from legislature and executive, the general power ol people will never

17
Ibid, p. 580.

24
be endangered.4 Art.121 of the Indian Consliin1 provides that no discussion shall take
place in Parliament respect to the conduct of any Judge of the Supreme Courl 01 i' Court
in discharge of his duties except in a proceediii!1 »l impeachment in Parliament. The
Indian Supreme Courl oh "The Constitution-makers attached so much importance in
independence of the Judicature in this country that the\ i necessary to place them beyond
any controversy, [Link] m manner provided in Art.121".5 In order to maintain iiulqvihi
the Judges of the Supreme Court, the framers of the Constitution not only provided under
art.
The Rules of eclure provide that no question, motion or resolution which nil
reflection on the conduct of any judge of the Supreme Court i he admissible."1 The
immunity under art.78 of the members of iment in respect of what they say in Parliament
cannot be mied as allowing them to make any statement or comment h may directly or
indirectly undermine the independence of the . of the Supreme Court. Art.94(4) is an
implied limitation on iiredom of speech of the members of Parliament. But n emcnt
of this limitation is in the hands of the Speaker as in art.78 the validity of the proceedings
of Parliament cannot noned in any court, nor a proceeding can be initiated against her of
Parliament for what he said in Parliament. Art.99 originally provided that a in has held
office as a Judge (otherwise than as an additional judge pursuant to the provisions of
art.98) shall not after. His retirement or removal plead or act before any court or authority
or be eligible for any appointment in the service of the Republic. "The purpose behind
this prohibition was that the high position and dignity of a Judge of the Supreme Court
should be preserved and respected even after his retirement and, further that if any
provision was made for holding of office, after retirement, then a Judge, while in the
service of the Supreme Court might be tempted to be influenced in his decisions in favor
of the authorities keeping an eve upon a future appointment.18
Concept of judicial independence suggests that hi'. appointment along with terms and
conditions of service In governed under Article 96 of the Constitution, as in the case ol ;i

18
Ibid, p. 586.

25
sitting Judge. But in the absence of any specific provision to thr. effect we find it difficult
to hold that the petitioner's service ;r. Chairman of the Court of Settlement is governed by
Article 96. Rut when Article 99 has provided for appointment of a retired Judge in a
judicial or quasi-judicial office, some statutory provision should also be made for giving
minimum security of his service not thought to be expedient to make any statutory
provision in tin case of such appointment, it is better that the original Article 99 In
restored putting total ban on appointment of a retired Judge to ;m\ public office
whatever.3
In 1976 and 1977 art.99 was amended by Martial Law Proclamation. permitting
appointment of the Judges in a judicial or quasi-judicial office after retirement or
termination of service and permitting a Judge of the High Court Division to practise in
the Appellate Division after retirement or termination of service. These
amendments were validated by the Fifth Amendment. However, the declaration of
unconstitutionality of the Fifth Amendment has not changed the position as Parliament by
the Fifteenth Amendment of he Constitution re-introduced the amendments of art.99
previously made by the relevant Martial Law Proclamations.

4.3 Seat of the Supreme Court

Art.100 originally provided that the permanent seat of the Supreme Court shall be in the
capital, but sessions of the High Court Division may be held at such other place or places
as the Chief Justice may, with the approval of the President, from time to time appoint.
The scheme of the Constitution in providing for 'session1 outside the capital is that
Benches of the High Court Division may sit temporarily in any place outside the capital if
it is found necessary or convenient by the Chief Justice in the interest of the
administration of justice without thereby affecting the jurisdiction of the court conferred
by the Constitution. Art.100 never contemplated holding of permanent sessions at fixed
places.5 After proclamation of Martial Law in 1982 permanent Benches of the High
Court Division with exclusive territorial jurisdiction were set up at different places and in
order to confer validity on such fragmentation of the High Conn Division amendment of

26
art. 100 was made in June 1988 setting up six permanent Benches and authorising the
President to determine the territorial jurisdiction of these Benches by notification in the
official Gazetted.19

3.4 Jurisdiction of High Court Division

Art. 101 provides that the High Court Division shall have in 11 jurisdiction as are
conferred on it by the Constitution and by other laws. The main sources of legal
jurisdiction of the High Court division are the Codes of Civil and Criminal Procedure
which provide appellate and provisional jurisdictions. There are a number of Other Law
which confer on the High Court Division jurisdiction to adjudicate disputes. Previously
the constitutional jurisdiction used to be defined by reference to writs as those are known
in English law. The jurisdiction used to be invoked by application of the aggrieved
parties and those applications were known as writ petitions and the writ jurisdiction was
popularly called the writ jurisdiction. Now after codification of the power and jurisdiction
of the High Court Division by art. 102, the jurisdiction is still called writ jurisdiction and
the applications under art. 102 are called writ petitions."20

4.5 Power of Judicial Review

The remedy of judicial review is different from the remedy of appear In appeal, the
appellate authority goes into the merit of the case either on a point of law or on points
both of law and fact, reassess the evidence and can substitute its own decision for that of
the body appealed from. Thus, if the appellate authority thinks that the victim of a motor
accident has been given too small an amount of damages for injuries inflicted by the
negligence of the defendant, il can increase the amount. In judicial review the court is
concerned with the question whether the action under review is lawful or unlawful and
the basic power of the court in relation to an illegal decision is to quash it. Judicial review

19
Ibid, p. 588.
20
Ibid, p. 589.

27
is available where a decision-making authority exceeds its powers, commit an error of
law, commits a breach of natural justice, reaches a decision which no reasonable tribunal
could have reached, or abuses its power.2 If the matter has to be decided again, it must be
done by the original deciding authority) Courts exercise the power of judicial review on
the basis that powers can be validly exercised only within their true limits and a public
functionary is not to be allowed to transgress the limits of his authority conferred by the
constitution or the laws. For example, if an election tribunal sets aside an election
holding, upon consideration of the evidence adduced, that the successful candidate has
been guilty of corrupt practices, the appellate authority upon reassessment of the
evidence can set aside the finding of the election tribunal. \If no appeal is provided for,
the court on judicial review cannot re-assess the evidence. But if the election dispute has
been decided upon an application made by a voter (though the election law permits trial
of election disputes upon application only by a candidate) or the election tribunal has
proceeded on erroneous view of the law or ignoring a material fact, the court exercising
the power of judicial review can quash the decision of the election tribunal because of
want of authority or illegality. In the same way, the court ean exercise the power of
judicial review if the decision is mala fide or in violation of the principles of natural
justice. The role of the i ourt in judicial review is essentially supervisory and the principle
here at work is basically that of ultra vires, which is synonymous with 'outside
jurisdiction' or 'in excess of powers.21
Appeal is a creation of statute and no appeal will in unless it is provided by a statute.
Judicial review is a common law remedy in England. "The courts of law have inherent
jurisdiction as a matter of common law, to prevent administrative authorities from
exceeding their powers or neglecting their duties."1 In our country s.9 of the Code of
Civil Procedure permits the civil court to try all suit', if civil nature unless expressly or by
necessary implication'1 harelip and the relief to be given is principally governed by the
provisions of the Specific Relief Act, 1877.

21
Ibid, p. 590.

28
 Chapter 5
CONSEQUENCE OF 16TH AMENDMENT FOR JUDICIARY

To understand the recently passed 16th Amendment we need to ask a simple question; To
whom is judiciary to be accountable? Do we not want judiciary accountable to the people
as other institutions are? We usually talk about independence of judges but we seldom
talk about their accountability. At times it's due to our limited understanding of the
judicial course of actions that prevents us from questioning exactly how accountable a
judge should be. Following the amendment, a Supreme Court judge could be removed by
adopting a resolution with a two-third majority in parliament on the basis of a
government probe.22
Previously, the Supreme Judicial Council, comprising chief justice and two senior
most judges of the Appellate Division of the Supreme Court, was authorised to suggest
removal of judges of higher judiciary for misbehavior and incapacity. The system was
introduced in 1978 by former military ruler-turned-politician Ziaur Rahman.

5.1 Supreme Judicial Council is formed

To proper administration of Justice the conducts of the Judges of the Supreme Court
sfibuld be in a specific prescribed form. The capacity, manner and other functionary
should be always taken in consideration. So, for those purposes Article 96(3) of the
constitution of Bangladesh states that there shall be a supreme judicial council.23
The supreme judicial council shall consist of the chief justice and two next senior judges.
The council shall prescribe a code of conduct to be observed by the judges and shall

22
[[Link] last visited on 22.07.2017]
23
Abdul Halim, N.E. Siddiki, The Legal System of Bangladesh After Separation, 2nd ed. (Dhaka:
Titu Publications 2014), pp 179.

29
inquire into the capacity or conduct of the judges. If upon information received from the
council or from any other source, the president has reason to apprehend that judge is
incapable of performing his functions because of physical or mental incapacity or has
guilty of gross misconduct, the president may direct the council to inquiry into the
apprehended incapacity or misconduct. If the council upon inquiry makes a report that in
its opinion the judge is so incapacitated or has been guilty of gross misconduct, the
president shall remove the judge from office. If the judge in respect of whom an enquiry
is to be made is a member of the council on a member of the council is absent or is
unable to act due to illness or any other cause, the Judge who is next in seniority shall act
as such member.(Article 96(3)-96(5)
A misconception has arisen that the amendment enables the parliament to remove a
judge. Actually, Parliament will recommend to the president; actual authority to remove a
judge. Remains in the hands of the president as it was before. Only the process of
investigation and recommendation has been placed in the hands of the Parliament. In the
earlier system, investigation was started upon the order of the president and was
conducted by a committee called “Supreme Judicial Council.” This council consisted of
the Chief Justice and two other senior judges of the Supreme Court. One may recall that
with many other changes to the Constitution this idea was introduced by Ziaur Rahman,
who was Chief Martial Law Administrator then, by the Proclamations (Amendment)
Order, 1977.

5.2 Provision of 16th Amendment

Bangladesh Act No XIII of 2014 amended the Constitution of Bangladesh, empowering
Parliament to impeach Supreme Court judges.24 ( Parliament and Judiciary: Striking a
Balance). Part VI, chapter one, article 96, of the Bangladesh Constitution, which includes
provisions on the tenure of office of the Supreme Court judges, now states:

24
[[Link] last visited on 22.07.2017]

30
(1) Subject to the other provisions of this article, a Judge shall hold office until he attains
the age of sixty-seven years.
(2) 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.
(3) Parliament may by law regulate the procedure in relation to a resolution under clause
(4) and for investigation and proof of the misbehavior or incapacity of a Judge.
Before the adoption of the Sixteenth Amendment, articles 96 (2) and (3) of the
Bangladesh Constitution under Part VI included a provision on impeachment carried out
by the Supreme Judicial Council instead of the Parliament. It stated:
(1) A judge shall not be removed from office except in accordance with the following
provisions of this article.
(2) There shall be a Supreme Judicial Council, in this article referred to as the Council,
which shall consist of the Chief Justice of Bangladesh, and two next senior judges.

5.3 How Did It Amend?

The Parliamentary Standing Committee on the Ministry of Law, Justice and
Parliamentary Affairs had proposed the legislation, now adopted as law,that suggested
replacement of sections 2 through 8 of article 96 with the sections 2, 3, and 4. The draft
amendment was passed with a 327-0 vote, based on the recommendation of the
Parliamentary Standing Committee.
The Parliament on Wednesday unanimously passed the Constitution (Sixteenth
Amendment) Bill restoring its power to remove Supreme Court judges on grounds of
misconduct or incapacity scrapping the existing constitutional provisions for Supreme
Judicial Council inquiry into such [Link] bill was passed by 327 votes to zero, as
no lawmakers voted against the bill either in voice vote or in division vote and the rest 22
of the 350 members of parliament either abstained from voting or did not join the session
on the [Link] has 277 lawmakers, HM Ershad-led Jatiya Party faction 40, Workers Party

31
of Bangladesh 7, Jatiya Samajtantrik Dal 6, Bangladesh Tariqat Federation 2, Anwar
Hossain Monju-led Jatiya Party (JP) 2 and Bangladesh Nationalist Front has one
lawmaker in the current parliament. The rest are independent lawmakers.
According to the constitution, the amendment to the constitution will come into effect
with the president’s assent to the [Link] to Article 142((b) of the constitution,
however, the president would need to assent to the bill in seven days after it is presented
to him and ‘if he fails so to do he shall be deemed to have assented to it on the expiration
of that period. The new amendment to the constitution stipulates that parliament ‘may by
law’ regulate the procedure of ‘investigation and proof of the misbehavior or incapacity
of a judge. The law minister, Anisul Huq, placed the bill before the house for passage as
parliamentary session resumed at 7:00pm with speaker Shirin Sharmin Chowdhury in the
chair and the bill was passed at about 11:00pm. The law minister promised that his
ministry would frame rules on appointment of judge’s soon. Most of the lawmakers
including the leader of the house, Sheikh Hasina, the leader of the opposition in
parliament, Raushan Ershad, and the Jatiya Party chairman, HM Ershad, joined the sitting
that passed the bill. The Jatiya Party (JP) chairman, Anwar Hossain Monju, also the
environment minister, was absent. With the passage of the bill, parliament will also have
the power to remove the chief election commissioner and other election commissioners,
the Public Service Commission chairman and members, the comptroller and auditor
general and the Anti-Corruption Commission chairman and commissioners on similar
grounds.
According to the constitution and the Anti-Corruption Commission Act 2004, the
holders of those offices ‘shall not be removed from his office except in like manner and
on like grounds as a judge of the Supreme Court. Anisul on September 7 tabled the bill
saying that it would restore the original Article 96 of the constitution adopted in 1972.
The house sent the bill to the standing committee on law ministry for scrutiny.
The standing committee on September 14 submitted its report recommending some
changes to the bill and it was passed as amended by the committee. A total of 30
proposals for amendment to the bill were submitted by lawmakers of Jatiya Party, ruling

32
Awami League’s alliance partners Workers Party of Bangladesh and Jatiya Samajtantrik
Dal and independent ones and 15 lawmakers submitted notice for soliciting public.

5.4 Analysis of 16th Amendment

The Provisional Constitution of Bangladesh Order, 1972 (This Presidential Order called
the Provisional Constitution of Bangladesh Order, 1972, was issued on 11 January, 1972.
By virtue of this Order, the entire character of the Government was changed. The
Presidential form was substituted by for maiming at a Westminster type
parliamentary system. However, the main provisions of the Provisional Constitution of
Bangladesh Order, 1972, are as follows:
(a) This Constitution shall establish a parliamentary democracy in Bangladesh in
accordance with the will of the people.
(b) There shall be a Cabinet of Ministers, with the Prime Minister as the head.
(c) The President shall, in exercise of all his functions, act in accordance with the
advice of the Prime Minister.
(d) There shall be a Constituent Assembly comprising of the elected representatives
of the people of Bangladesh returned to the National Assembly and Provincial
Assembly seats in the elections held in December, 1970, January 1971, and March 1971,
who are not otherwise disqualified by or under any law.
(e) There shall be a High Court of Bangladesh, consisting of a Chief Justice and so many
other Judges as may be appointed from time to time.
Exigent to point out here that the Proclamation qc Independence was silent on the
function of the Constituent Assembly of Bangladesh, but the Provisional Constitution of
Bangladesh Order not only defined the Constituent Assembly but clearly envisaged that it
would frame the Constitution Of the country.
Here the interesting point is that the Constituent Assembly of Bangladesh was not
given any law-making power other than framing the Constitution of the country and for a
period up to the 16th December, 1972, although the country was run in the line of a
parliamentary system with the Prime Minister as the head of the Cabinet under the
Provisional Constitution Order, the system operated within the framework of

33
the Proclamation of Independence, and the Constituent Assembly of Bangladesh having
no other function than the framing of (he Constitution, the law-making function remained
vested in I he Executive and the Government of Bangladesh which although claiming to
be elected, remained unanswerable to ,iny body or forum.
The Proclamation of Independence continued to be the upreme law till the present
Constitution took effect from the 16th December, 1972 It is also exigent to point out here
that indeed no provision Was made in the Provisional Order nor iv,is any step taken
regarding the status, appointment and 1111iction of the Judges of the High Court till
January 17, when the High Court of Bangladesh Order, 1972, was promulgated by
presidential Order No. 5 of 1972.
However, to understand Law and Judiciary as exist today in Bangladesh, the
following vital issues may be discussed and taken into consideration for analysis and
evaluation.25
The AL-led government, however, introduced afresh the SJC through the 15th
amendment to the charter in 2011. But the government changed its mind within three
years. There is a serious concern raised by the senior lawyers of the Supreme Court and
the Constitutional experts about this U-turn by the current regime. Some of them were
directing their index finger towards the recent order given by one of the benches of the
Honourable High Court to arrest the ill-famous killing of 9 innocent people where
allegedly the son-in-law of the influential leader of the Bangladesh Awami League is
directly involved. According to a number of intellectual this order from the High Court
bench has triggered the U-turn of the current regime from the SJC towards the then
Article 96 though it was taken back from the Constitution in the hands of the President by
Sheikh Mujibur Rahman himself and it was given to the SJC by President Ziaur Rahman
which has been applauded and appreciated by one of the Judges of their block.26

25
Dr. S. M. Hassan Talukder, Law and Judiciary in Bangladesh: An Appraisal, 1st ed. (Dhaka :
Bangladesh Law Research Center 2011) pp.72-73
26
Ibid, p. 74.

34
 Chapter 6
CONCLUSION

6.1 Recommendations
From the above discussion I have some recommendations for removing the judicial
problems and ensure the judicial independence in Bangladesh from the legislative. 27 One of
the primary objects for which a state was established in the society was the creation and
protection of individual's rights. But an independent organ as the means through which
this object might be accomplished has been recognized an existed from early times. This
independent organ is judiciary. An investigating look from broader point of view will
reveal the idea that the existence of a judiciary does not depend on the existence of a
legislature. Because the legislature does not. in a sense create the rights of individuals; it
only recognizes the rights. Rights originate in the society as ultimate results of mutual
interactions among individuals interse or individuals and other social organizations. This
is why even in the absence of legislative organs the courts might apply rules derived
from other source like form their own previous decisions or form customs and thereby
recognize rights of individuals. A society without a legislative organ is conceivable , and
indeed fully developed legislative organs did not make their appearance in the life of the
state until modern times but a civilized state without judicial organs is hardly
conceivable.
Independence of judiciary truly means that the judges are in a position to render
justice in accordance with their oath of office and onlv in accordance with their own
sense of Substantive Independence, which is also described as functional or decisional
independence means, the independence of judges to arrive at their decisions in

27
[[Link] last visited on 22.08.2017]

35
accordance with their oath of office without submitting to any kind of inside or outside
pressure (from government and other centers of power, public and private; and on the
other hand, the inside pressures from parties themselves) but only to their own sense of
justice. In determining the minimum standers of judicial independence the international
Bar Association suggests in 1982 that in discharge of his judicial function of a judge is
subject to nothing but the law and the commands of his conscience.28

6.2 A note of caution and vigilance

96. (1) Subject to the other provisions of this article, a Judge shall heldx Tenure of office
of office until he attains the age of sixty-seven years, judges
(2) A Judge shall not be removed from his office except in accordance with the
following provisions of this article.
(3) There shall be a Supreme Judicial Council, in this article referred to as the Council,
which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges :
Provided that if, at any time, the Council is inquiring into the capacity or conduct of a
Judge who is a member of the Council, or a member of the Council is absent or is unable
to act due to illness or other cause, the Judge who is next in seniority to those who are
members of the Council shall aet as such member.
(4) The function of the Council shall be -
(a) to prescribe a Code of Conduct to be observed by the Judges; and
(b) to inquire into the capacity or conduct of a Judge or of any other functionary who
is not removable from office except in like manner as a Judge.
(5) Where, upon any information received from the Council or from any other source, the
President has reason to apprehend that a Judge -
(a) may have ceased to be capable of properly performing the functions of his office
by reason of physical or mental incapacity, or

28
Ibid, p.326

36
(b) may have been guilty of gross misconduct, the President may direct the Council to
inquire into the matter and report its finding.
(6) If, after making the inquiry, the Council reports to the President that in its opinion the
Judga has ceased to be capable of properly performing the 'unctions of his office or has
been guilty of gross misconduct, the President shall, by order, remove the Judge from
office.
(7) For the purpose of an inquiry under this article, the Council shall •egulate its
procedure and shall have, in respect of issue and execution of rocesses, the same power
as the Supreme Court.
(8) A Judge may resign his office by writing under his hand addressed :o the President.

Removal of a judge for misbehavior (I think the proper word should be misconduct) and
incapacity on the recommendation of the Parliament will be more democratic.

Personal independence means that judges are in no way under any interference of the
executive or legislative in discharging their judicial functions. In respect of personal
independence of the judges the international Bar Association says that it means that the
terms and conditions of judiciary service are adequately secured so as to ensure that
individual judges are not subject to executive control.
Collective independence means the institutional administrative and financial
independence of the judiciary as a whole vis-a-vis other branches of the government
namely the executive and the legislative.
Internal independence of the judiciary means independence of judges from their
judicial superiors and colleagues. In other words, independence of a judges or a judicial
officer from any kind of order, indication or pressure from his judicial superiors and
colleagues in deciding disputes. Among these four types of independence of judges the
substantive independence is most important. Because it is the inner- strength of the
judges which provides the steering- force for them to maintain their impartiality in
discharging judicial functions. A part from this unlike collective individual and internal

37
on their own sense of justice. When a judge administers justice, it is presumed and
expected that he will administer justice impartially.
This system of popular election of judges was first introduced in France in 1970. But
this system was not a successful, for the masses of voters do not always possess the
understanding necessary to appreciate the soundness of judicial opinion. It was the result
of the elections which took place in 1973 that most of those who were elected were
engravers, stone-cutters, clerks, gardeners and common laborers who had no quality to
administer justice. This is why with the advent of Napoleon the system of popular
election was abolished. This method, of course, is now in vogue in some of the States of
the American Federal Union. The chief disadvantage if this method is that different
political parties nominate their candidates and people being influenced by the parties
elect a candidate though that particular candidate has no quality to administer impartial
justice. Judges, therefore, elected by this method become subject to popular passion and
prejudice. It tends to lower the character of judiciary. Again, it is impossible for a judge
to put for the electorate either a programmed or a personal success concerning has
judicial conduct. This is why Laski says that "of all the methods of appointment that of
election by the person at large is without exception the worst."
This method exists in Switzerland and in two States of American Federal Union. This
system is not consider good because in this system judges are nominated by political
parties in the parliament and the majority is sure to get his candidate elected whatever be
his quality to administer justice. It is contended that when a judge is elected with the
support of the majority party, he will have to appease that party and it will be quite
impossible for him to deliver neutral justice.
The appointment of judges by the executive is the most common and available
method of choice and this system in vague almost all countries. This may be of two types
• by the executive independently; or
• by the executive after consultation with the court or from a list of nominees presented
by the court or with the consent of the legislature.

38
The first method is sometimes contended to be objectionable in the sense that personal
favoritism or political consideration may determine the appointments and instances are
cited from Britain, France, and USA and largely from third world countries. Mr. Briand,
when was the Minister of justice of France in 1912 himself declared that the judges had
become the pay of politicians?
The second method is most democratic and objective. Because when the court
prepares a list or the Chief Justice consults he, who is closely associated with the
performance of Bar, will select the name of those lawyers who are men of high legal
acumen, integrity, independence of justice etc. Such a method of appointing judges is
conducive to the development of the standard of judicial decisions on the one hand and
on the other hand, it is therefore, perfect to ensure impartial justice in the country.

6.3 Concluding Remarks

Security of tenure for the judges is most important in securing their independence and
impartiality. Security of tenure means that-
• Either judge is to be appointed for the whole life i.e. 65 or 75 years.
• During this tenure the conditions of service must be such that they can fearlessly
administer justice.
In other words, the power of transfer or removal of a judge must be a strict and
difficult one. If the transfer or removal of a judge is to depend upon the pleasure of
particular person or the executive, neither independence nor impartiality can be ensured.
In UK judges are guaranteed their security of tenure; they can be removed by the King
only when both the Houses pass a resolution presumed him for corruption or moral
turpitude. In the USA judges of the Supreme Court can be removed by impeachment. The
process of impeachment is difficult in that the House of Representatives prefers the
charges and the trial in held by the Senate.29

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In order to ensure the independence of judiciary it is essential, next to the permanency of
office, to provide judges with adequate remuneration and privileges. Adequate
remuneration and privileges includes include the following three things: the salaries,
housing facilities, allowances and other privileges are to be such that they can easily
maintain a standard life and they do not have to think of corruption or bribery. Again, if
judges are ill-paid able persons may not be attracted to this profession. the conditions of
salaries and other privileges must be such that they cannot be varied to there
disadvantages during the tenure of there office. This is why in democratic countries
judges are paid there salaries and allowances from the consolidated fund and there is no
need for the approval of the parliament for this payments every year. after retirement a
judge should receive pension person so that during his tenure he need not indulge in
corrupt practices and he can lead a peaceful retired life.30
The High Court is set to deliver its verdict on May 5 in a writ petition filed
challenging the legality of the 16th amendment to the constitution for restoring
parliament’s authority to impeach the Supreme Court judges for misconduct and
incapability.
A special bench of Justice Moyeenul Islam Chowdhury, Justice Quazi Reza-Ul
Hoque and Justice Md Ashraful Kamal fixed the date on Thursday after completing
hearing in a rule issued by the court earlier.
Attorney General Mahbubey Alam represented the state while Manzill Murshid stood
for the petitioners. On September 17, 2014 the parliament passed the amendment bill
rejecting all calls for imploring public opinion. President Md Abdul Hamid gave his
consent to the amendment bill on September 22 that year.
According to the amendment, not only the judges, parliament can also remove the
chief election commissioner and commissioners of the Election Commission, the
chairman and the members of the Public Service Commission, chairmen and the

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commissioners of the Anti-Corruption Commission, and the Comptroller and Auditor
General on similar grounds.
The articles establishing the EC, PSC, ACC and the office of the Comptroller and
Auditor General stipulate that the holders of constitutional posts would be removed
according to the procedures applicable for the removal of the Supreme Court judges.
The original constitution of 1972 contained the provision for impeachment of the judges
by a two-third majority in parliament. The petition was filed by nine lawyers including
Asaduzzaman Siddique on November 5, 2014.
The High Court earlier issued a rule on the government asking why the amendment
would not be declared illegal following a primary hearing into the petition.
Five senior lawyers Dr Kamal Hossain, M Amir-ul Islam, Mahmudul Islam, Rokanuddin
Mahmud, and Ajmalul Hossain were made amicus curie in the case. Of them, Mahmudul
Islam could not give his opinion for illness.
In his statement on August 19 last year, Dr Kamal said that the amendment had
curbed the independence of the judiciary. The main structure of the judiciary was smitten
through empowering parliament to remove the Supreme Court judges.
He said that the completion of tenure by any judge is an important thing for the
independence of the judiciary. “It must be ensured that a judge can deliver justice without
any hindrance throughout his/her tenure. But, the parliament can remove a judge with a
two-thirds majority following the amendment. As a result, the judges cannot perform
their duties without fear.” He also said that there was a possibility of using political and
party influence while removing a judge.

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 REFERENCES

Books

1. Md. Abdul Halim, Constitutional Law and Politics, Bangladesh Perspective. 4th ed.
(Dhaka: CCB Foundation, 2008).
2. Md. Mahamudul Islam, Conistitutional Law of Bangladesh, 3rd ed. (Dhaka: Mullick
Brother, 2012).
3. Abdul Halim, N.E. Siddiki, The Legal System of Bangladesh After Separation, 2nd ed.
(Dhaka: Titu Publications 2014).
4. Dr. S. M. Hassan Talukder, Law and Judiciary in Bangladesh: An Appraisal, 1st ed.
(Dhaka : Bangladesh Law Research Center 2011)

Statutes
1. The Constitution of the Peoples Republic of Bangladesh.

Web pages
1. [[Link]
2. [[Link]
3. [[Link]
4. [[Link] executive]
5. [[Link]

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