The Supreme Court's decision to scrap the 16th amendment to the constitution, nullifying parliament's power to remove sitting judges, has given rise to a heated debate about the respective powers of the judiciary and the legislature. The apex court's observations on Bangladesh's history and politics have also drawn protests from government ministers. Here we explain the main points of contention.
What is the 16th amendment?
The 16th amendment to the constitution — passed on September 17, 2014— empowered parliament to remove judges of the Supreme Court for their incompetence or misconduct based on a two-thirds majority.
Ministers said the amendment harked back to the first constitution, drawn up in 1972, which bestowed on members of parliament the right to impeach judges.
That power was transferred to the president following the fourth amendment to the constitution in 1975. Later, the fifth amendment, brought in during military ruler Ziaur Rahman's regime, legalised the formation of a Supreme Judicial Council (SJC) to impeach judges.
Why it was declared illegal
In light of the State vs Masdar Hossain case verdict, the judiciary was separated from the executive and legislative organs on November 1, 2007.
The Supreme Court scrapped the 16th amendment on the ground that it undermined the independence of the judiciary. Nullifying parliament's power to remove judges, the apex court reinstated the Supreme Judicial Council for the removal of errant judges.
“Neither individual judges nor the judiciary should be accountable to the executive,” according to the verdict.
Who will remove judges now?
In its ruling, the apex court said the power of impeachment was now automatically transferred to the Supreme Judicial Council since the 16th amendment was void. The SJC was a much more transparent process, the seven-member bench said in its verdict. Disagreeing with the court, Law Minister Anisul Huq claimed: “A court cannot make a law or order retention of its earlier version. It can only define the law.”
Why is the government unhappy?
Ruling party lawmakers are dissatisfied with the verdict because they think the legislature in a parliamentary democracy should have more authority compared to the judiciary. Secondly, the present Awami League-led government feels that the image of Father of the Nation Bangabandhu Sheikh Mujibur Rahman was “undermined” through the Supreme Court observation that “No nation, no country is made of or by one person.”
What does the verdict say about Bangladesh's history?
“If we want to truly live up to the dream of Sonar Bangla as advocated by our Father of the Nation, we must keep ourselves free from this suicidal mindset and addiction to 'I alone', that only one person or one man did all this,” Chief Justice Surendra Kumar Sinha said in his observation on the verdict.
He also remarked on the state of politics, martial law, Election Commission, corruption and independence of the judiciary.
"Now power, not merit, tends to control all public institutions of the country. It is an irony that while unflinching determination and indomitable spirit enabled us to free a country from the clutches of a military power, we have been measurably defeated by ourselves in that very free country," it said.
Criticising the last two martial law regimes, the court observed: “After independence, unholy alliances of power-mongers reduced this country to a banana republic twice. They bluffed and hoodwinked the people to legitimise their illegal exercise of power.”
What will the government do?
Asked about the government’s stand, Law Minister Anisul Huq said they would likely seek a review to get “objectionable and irrelevant” statements, particularly political observations made by Chief Justice in the judgment, expunged. He also hinted at further amending the constitution, if deemed necessary, in the future.
What BNP says
In its immediate reaction, Bangladesh Nationalist Party, or BNP, termed the judgment historic, saying it aptly highlighted the prevailing political scenario in the country. The government has taken the judiciary as its opponent, it said.
Coming down hard on the law minister and Awami League leaders for criticising the judgment, BNP Secretary General Mirza Fakhrul Islam Alamgir said: It is the law minister's duty to implement the verdict, not to take a stand against the judiciary. By slamming the verdict, he [Anisul Huq] deviated from his moral duties for political expediency.”
Why the judiciary and the executive are at loggerheads
The ongoing row between the two organs has resulted from disagreement over the issue of the judiciary’s separation. Both the chief justice and ministers frequently exchanged heated words over the formulation of a code of conduct for lower court judges. Added to that is the apex court’s refusal to accept a draft of the code of conduct submitted recently by the government.
During court proceedings, government officials raised objections against what they saw as 'political comments' by the Chief Justice.
Chief Justice SK Sinha in his reply said he would continue to speak out for the sake of the welfare of the judiciary even if critics described these as political remarks.
The verdict came at a time when the Pakistan Supreme Court declared the country's Prime Minister Nawaz Sharif unfit for office. Sharif stepped down as premier of Pakistan, complying with the judgment.
Leaders of the ruling Awami League in Bangladesh are concerned about what they see as judicial overreach in the 16th amendment verdict. They also fear that the court may make more such moves in the future.
However, Chief Justice Sinha urged everyone not to play any political games over the verdict.
“The court will welcome constructive criticism, but its judges should not fall into the trap laid by the government or the opposition,” he said.
When will Sinha retire?
SK Sinha took office as chief justice on January 17, 2015 and will retire in January, 2018.