There has been widespread debate about the recent verdict by the Appellate Division of the Supreme Court of Bangladesh which upheld the High Court Division’s 2016 decision invalidating the 16th amendment to the Constitution of Bangladesh. On Monday, 28 August 2017, Bangladesh Institute of Law and International Affairs (BILIA) organised a symposium on this topic to enable leading academics to break down the legal complexities of this judicial decision and scrutinise it.
Dr. Ridwanul Hoque, Professor of Law at the University of Dhaka, presented a keynote paper titled ‘Law, Politics and Judicialisation: Sixteenth Amendment Decision in Context'. Dr. Mizanur Rahman, Professor of Law at the University of Dhaka and Former Chairman of the National Human Rights Commission of Bangladesh, presided over the symposium. Dr. Shahdeen Malik, Honorary Director of BILIA, was also present in the event and gave the welcome address.
Dr. Hoque commenced the presentation by recalling that the 16th amendment pertained to Article 96 of the Constitution of Bangladesh which lays down the mechanism through which Supreme Court judges may be removed on the ground of proven incapacity or misbehaviour (finalised by a President’s order). Since 1977, this power of removal has been bestowed on the Supreme Judicial Council, which consists of the Chief Justice and two most senior judges of the Appellate Division of the Supreme Court. The 16th amendment effectively transferred this power of removal from the Supreme Judicial Council to the Parliament, since the amended Article 96(2) now stipulated that removal was to be ‘by an order of the President pursuant to a resolution of Parliament passed by a two-thirds majority’. However, Dr. Hoque highlighted that this is not actually a new mechanism for judicial removal; rather it is identical to the one that had been stipulated by Article 96(2) of the Constitution in its original 1972 form. As such, he stressed that it is imperative that the public bear in mind that the 16th amendment did not introduce a novel constitutional provision; rather it restored or reinserted an original constitutional provision by way of amendment. As such, he urged the audience to question the tenability of deeming an original provision of the constitution (inserted by the founding fathers themselves) to be ‘unconstitutional’ and contrary to the ‘basic structure of the constitution’ as indeed the Supreme Court had deemed in the 16th amendment case. He agreed with the Court that it is ‘indisputable’ that the independence of judiciary forms a part of basic structure of the Constitution and the judicial removal process is what ‘lies at the core of this normative concept’. However, he reminded that there are no fixed formulas on how to achieve and maintain this judicial independence and the necessary mechanism differs from country to country depending on their differing political circumstances. He explained that it is a matter of choice and judgment to be exercised by the people of a democratic country through their elected representatives. As such, Dr. Hoque believes that the 16th amendment verdict seems to have misapplied the basic-structure doctrine and undermined the concept of popular sovereignty.
Dr. Malik remarked that discussions of this kind which facilitate the scrutiny of our courts’ judgments while maintaining due care and respect, is desirable and signals the growing maturity of the Bangladeshi democracy.
Dr. Rahman commented that ‘law is crystallised politics’; so it is very difficult to avoid politics in the discussion of law. He recognised the need for a creative and imaginative judiciary but cautioned that such creativity and imagination must be exercised within set parameters which ought not to be crossed. In response to a question from the audience, he acknowledged the importance of implementing checks and balances on the three different branches of State, but at the same time the separation of powers must be respected when doing so.
On a closing note, Dr. Hoque reminded the audience that although one may disagree with the legal efficacy of the 16th amendment verdict, it is a constitutional duty of the Bangladeshi government and its citizens to respect and abide by the Supreme Court’s decision.
The writer is Research Officer, Bangladesh Institute of Law and International Affairs (BILIA).