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Busy year for judiciary: 16th amendment scrapped, chief justice quits

  • Published at 10:24 pm December 27th, 2017
  • Last updated at 01:12 am December 28th, 2017
Busy year for judiciary: 16th amendment scrapped, chief justice quits
The resignation of Surendra Kumar Sinha from the post of the chief justice and scrapping of the 16th constitutional amendment were two of the most discussed topics in Bangladesh’s judicial arena in 2017. Apart from them, the gazette notification on lower court judges’ code of conduct and verdicts in a number of cases also drew attention. There was also debate around the year on whether the judiciary had finally got full independence from the executive. During this year, there was also a visible row between the judiciary and legislative, which resulted from a disagreement over the issue of the judiciary’s separation.

16th amendment verdict

The appeal verdict that declared 16th constitutional amendment illegal reverberated across the judicial and political arena. This verdict stripped the parliament of its power to sack Supreme Court judges. Ministers, ruling party leaders, and pro-government lawyers expressed anger and dissatisfaction at the observations of former chief justice Sinha in the full text of judgment. But all the debates and controversies seem to have vanished into thin air after Sinha’s resignation. The judiciary was separated from the executive and legislative on November 1, 2007, in light of the State vs Masdar Hossain case verdict. On July 3 this year, 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. “Neither individual judges nor the judiciary should be accountable to the executive,” according to the verdict. Awami League MPs were unhappy because they think that the legislature in a parliamentary democracy should have more authority compared to the judiciary. The government felt 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.” On the other hand, the BNP dubbed the verdict historic, saying it aptly highlighted the prevailing political scenario in the country and accused the government of treating the judiciary as its opponent. The government has recently sought a review of the verdict.

SK Sinha’s resignation

Sinha made history when he became the first non-Muslim chief justice in Muslim-majority Bangladesh. He is also the first chief justice to step down from his post before the end of his tenure. His stepping down was probably the most discussed issue in the country’s judicial arena. Sinha left for Australia on October 13 amid a row with the government over the 16th amendment verdict. He sent his resignation letter to the president from abroad, a day after his month-long leave on ‘health grounds’ ended. He was supposed to retire after 81 days, on January 21, 2018. Before leaving the country, he told the media that he was “quite embarrassed” about how a specific political quarter, including some ministers and the prime minister herself, had criticised him over the verdict. Immediately after he left, five Appellate Division judges said they were unwilling to continue working with Sinha because of “11 gross allegations including money laundering, financial scam, corruptions, moral degradation against him.” According to a statement issued by the Supreme Court registrar, other judges of Appellate Division did not want to conduct court proceedings with Sinha as he had failed to give satisfactory answers to his colleagues over the corruption charges. The details of the 11 charges were never made public. The government claimed that Justice Sinha took leave on health ground and then left the country. However, the BNP claimed that he was forced to leave the country because of the 16th amendment case verdict. Md Abdul Wahhab Miah, the senior-most Appellate Division judge, has been performing the functions of the chief justice since October 3.

Gazette on lower court judges’ code of conduct

Legal experts said that the gazette -- Bangladesh Judicial Service (Discipline) Rules 2017 -- has diminished the Supreme Court’s jurisdiction of taking action on its own against breach of the code of conduct by lower court judges. Now, if the High Court judges find any proof of corruption against any lower court judge during their inspection, they will not be able to investigate it anymore. According to the new rule, the court will inform the government and advise it to take necessary actions. In the light of Masdar Hossain case, the Appellate Division had made some changes on the draft of the code of conduct prepared by the Law Ministry. But the government delayed in finalizing the rule. At one stage, the president notified that there was no need to issue a gazette on the matter. The Sinha-led Appellate Division had rejected a draft by the ministry in July this year, as it was not prepared the way the court had suggested. The code of conduct gazette was finally out after Sinha retired. Law experts observed that the finalised code of conduct and the proposed one had a number of differences. Sinha and ministers frequently exchanged heated words over the formulation of the code of conduct. During court proceedings, government officials raised objections against what they saw as ‘political comments’ by the then chief justice. SK Sinha in his reply said he would continue to speak out for the welfare of the judiciary even if his critics described these as political remarks.