The recent changes introduced to the method of removal of judges of the Supreme Court of Bangladesh and the consequent triumph of an all-powerful executive over the Judiciary : Judicial Independence in peril

Journal article


Bari, M. Ehteshamul. (2020). The recent changes introduced to the method of removal of judges of the Supreme Court of Bangladesh and the consequent triumph of an all-powerful executive over the Judiciary : Judicial Independence in peril. Cardozo International & Comparative Law Review. 4(2), pp. 653-696.
AuthorsBari, M. Ehteshamul
Abstract

Nothing contributes more to the firmness and independence of the judiciary as permanency in office, as it enables judges to decide cases, regardless of whether their decisions please the executive or the legislature. The Constitution of Bangladesh, 1972, originally empowered the Parliament to remove judges of the Supreme Court only on the grounds of proved misbehavior or incapacity. However, the Constitution (Fourth Amendment) Act, 1975, which replaced parliamentary democracy with a presidential form of government, empowered the President to remove the judges of the Supreme Court in accordance with his own will. But two years later in April 1977, the Martial Law regime of General Zia, once again changed the method of removal of the judges through a Proclamation Order, which was later validated by the Constitution (Firth Amendment) Act, 1979. This removal procedure stipulated that a judge of the Supreme Court could only be removed from office by the President on the recommendation of the Supreme Judicial Council, which was to be composed of the Chief Justice of the nation and the two next senior judges of the Supreme Court. This method of removal of judges was consistent with the international norms concerning judicial independence. However, the government of Bangladesh Awami League (BAL) used its absolute majority in the Parliament to pass the Constitution (Sixteenth Amendment) Act, 2014, for repealing this transparent method of removal. Instead, this amendment once again vested the power to remove judges in the Parliament. The Supreme Court, however, in July 2017, under the stewardship of Chief Justice SK Sinha declared that the Sixteenth Amendment was ultra vires the Constitution. In retaliation for the Chief Justice's fearless judgment in the Sixteenth Amendment Case, the regime of BAL not only forced him to resign from office, but also to leave the country. The objective of this Article is to demonstrate that the enactment of the Sixteenth Amendment and the subsequent measures have been preferred for bringing the superior judiciary under the control of an all-powerful executive. It will be shown that these measures have unduly impaired the independence of the judges to decide cases without the fear of adverse consequences. Consequently, this Article will put forward recommendations for safeguarding the independence of the superior judiciary.

Year2020
JournalCardozo International & Comparative Law Review
Journal citation4 (2), pp. 653-696
PublisherBenjamin N. Cardozo School of Law, Yeshiva University
ISSN1069-3181
Web address (URL)https://www.cardozociclr.com/current-issue
Research or scholarlyResearch
Page range653-696
Publisher's version
License
All rights reserved
File Access Level
Controlled
Output statusPublished
Publication dates
Online2021
Publication process dates
Deposited07 Sep 2021
Permalink -

https://acuresearchbank.acu.edu.au/item/8wvw0/the-recent-changes-introduced-to-the-method-of-removal-of-judges-of-the-supreme-court-of-bangladesh-and-the-consequent-triumph-of-an-all-powerful-executive-over-the-judiciary-judicial-independence-in

Restricted files

Publisher's version

  • 2
    total views
  • 0
    total downloads
  • 2
    views this month
  • 0
    downloads this month
These values are for the period from 19th October 2020, when this repository was created.

Export as

Related outputs

The establishment of the judicial appointments commission in Malaysia to improve the constitutional method of appointing the judges of the superior courts : A critical study
Bari, M. Ershadul, Bari, M. Ehteshamul and Naz, Safia. (2015). The establishment of the judicial appointments commission in Malaysia to improve the constitutional method of appointing the judges of the superior courts : A critical study. Commonwealth Law Bulletin. 41(2), pp. 231-252. https://doi.org/10.1080/03050718.2015.1049634
The Unjust Exercise of Emergency powers in Bangladesh and their conquest impact on the fundamental rights : A critical study
Bari, M. Ehteshamul. (2014). The Unjust Exercise of Emergency powers in Bangladesh and their conquest impact on the fundamental rights : A critical study. Jurisprudence. 21(1), pp. 578-598. https://doi.org/10.13165/JUR-14-21-2-12
The natural death of the Supreme Judicial Commission of Bangladesh and the consequent patronage appointments to the Bench : Advocating the establishment of an Independent Judicial Commission
Bari, M. Ehteshamul. (2014). The natural death of the Supreme Judicial Commission of Bangladesh and the consequent patronage appointments to the Bench : Advocating the establishment of an Independent Judicial Commission. International Review Of Law. 2014(1), pp. 1-17. https://doi.org/10.5339/irl.2014.1