RESEARCH MONOGRAPH ON-

A CRITICAL ANALYSIS ON SIXTEEN AMENDMENT OF

BANGLADESH CONSTITUTION: ALEGAL STUDY

This thesis has been submitted for the fulfillment of degree of Hon’s of Law

Submitted To
LL.B (Hon’s) Examination Committee Spring 2017

Under the Supervision of

MD. Kalim Ullah
Lecturer
Department of law
International Islamic University Chittagong

Submitted By
MOHAMMAD SAFIRUL HASAN
ID No – L133061
Program: LL.B (Hon’s)
Semester: 8th
Department of Law
International Islamic University Chittagong

Date of submission: 18th October

Department of LAW
International Islamic University Chittagong

1
 Letter of Transmittal

Date: 18th October 2017

To
Md Kalim Ullah
Lecturer
Department of Law
International Islamic University Chittagong

Subject: Letter of Transmittal

Dear Sir,

Here is the research on “A Critical Analysis on S ixteenth

A m e n d m e n t ” asked me to prepare this research as a requirements for the
degree of LL.B (Hon’s). This research focuses on the i mpeachment of judges
of Supreme Court of Bangladesh.

I am proud of doing this research. I have tried my level best to make the research
informative and fruitful. For any classification , I will be available and looking
for such term paper in coming days. I will be happy to get such type of research
further.

Sincerely
Yours
MOHAMMAD SAFIRUL HASAN
Id – L133061
Semester- 8th
Department of Law
International Islamic University Chittagong

2
 Supervisor’s Approval
It is to certify that MD kowser uddin chowdhury has completed his thesis entitled ‘A
critical analysis on 16th amendment of Bangladesh constitution and a legal study” under
my supervision as the partial fulfillment of the requirement of LL.B (Hon’s) program of
the department of Law, International Islamic university Chittagong. This is his original
work .This thesis has been prepared under my guidance and is a record of the bona fide
work carried out successfully.
I wish his success.

……………………..
MD Kalim Ullah
Thesis supervisor
Lecturer, Department of Law
International Islamic university Chittagong

3
 Declaration
I declare that this thesis entitled A critical analysis on 16th Amendment to the
Constitution of Bangladesh 2016 ’ is my original work, is a result of my own research
and I have completed it under the supervision of MD Kalim Ullah Sir ,Lecturer
department of Law .

…………………….
Md Kowser uddin chowdhury
LL.B Hon’s
Id No. L133061
Department of Law
International Islamic university Chittagong

4
 Acknowledgement

All praise is due to, almighty Allah who has given me the ability to conduct the research.
It has been an honor and great privilege for me to have MD. Kalim Ullah Sir Lecturer
of Department of Law, International Islamic University Chittagong as my thesis
supervisor. He has given invaluable suggestions and constructive direction regarding
my study. Without his supervision and monitoring the study would have been
impossible. I offer my sincere appreciation for the learning opportunities provided by
my supervisor.
My completion of this study could not have been accomplished without the support of
my friends – thank you for allowing me time away from you to research and write.
I also extended my appreciation for the effort of Advocate K. R. M. Khairuddin
Mahmud Chy for the assistance, he offered me during research work through the
relevant books, newspapers and other materials.
Finally, to my beloved and supportive parents for their encouragement and assistance
in preparing of thesis paper.
None of the above persons, but I am alone responsible for the shortcomings of the work.

MOHAMMAD SAFIRUL HASAN

5
 Abstract

The Constitution is the guide which leads a nation to the prosperity. A modern state cannot be
thought of without it. So, after nine months long blood-shedding battle in 1971, Bangladesh
achieved her long awaited independence and therefore, took an instant effort to formulate a
constitution rapidly, based on the ideological spirit of the war of independence. However, to
accommodate the demands and will of the people and even sometimes to fulfill the narrow
interests of the rulers, Bangladesh Constitution has been amended several times.16th
amendment one of them.
Except a few cases almost every amendments has a great political impacts in the
constitution. The most aspired and comprehensive sixteenth amendment induced a great
debate among the political parties, intellectual part, constitution experts and masses.
This research on An Empirical Study on 16 th amendment regarding the
impeachment of judges. My research is divided into seven chapters.. My research Paper
discussion clear the validity of the 16 amendment, and the arguments of parties .the 16th
amendment enacted on 17th September 2014, vested the power of impeachment of judge to
the parliament. A writ petition was filed against this amendment and the high court division
declared the amendment is void, illegal and unconstitutional.
Analyzing the 16th amendment and verdict on 16th amendment it is said that the amendment
injured the separation of power, independence of judiciary rule of law, which are the basic
structures of the Bangladesh constitution.

6
 Table of Contents

Chapter 1
introduction
1.1 Introduction 8
1.2 Object of the study 9
1.3 Important of study 9
1.4 Question of research 10
1.5 Methodology of the study 10
1.6 Limitation of study 11
Chapter 2
Definition & Scenario of amendments of Bangladesh constitution
2.1 Definitions 12
2.2 A list of amendments 14
Chapter 3
Impeachment procedure
3.1 Constitutional History of impeachment of judges in Bangladesh 17
3.2 The Sixteen amendment 17
3.3 A comparative study between 5th & 16th amendment 18
Chapter 4
Impeachment of judges in world perspective
4.1 Common wealth countries 20
4.2 USA 21
4.3 UK 22
4.4 India 23
Chapter 5
Judicial and constitutional impacts on 16th amendment
5.1 Writ against 16th amendment 25
5.2 Judgement of HCD 33
5.3 Appeal 34
5.4 Review may be lied 36
Chapter 6
Legal expert opinion
6.1 D. kamal hossain 37
6.2 Mr. M. Amir-ul Islam 40
6.3 Mr. Rokanuddin Mahmud 43
6.4 Mr. Ajmalul Hossain 43
Chapter 7
conclusion
7.1Recommendation 46
7.2Conclusion 50

 Bibliography 51

7
 Chapter 1

Introduction

1.1 Introduction

A modern state cannot be thought of without a Constitution. The entire legislative, executive

and judicial functions of the State are guided and regulated by the Constitution.

The first constitution of Bangladesh, drafted in 1972, gave the Parliament the power to

impeach the judges of the Supreme Court (SC). Then, following the fourth amendment, the

President of Bangladesh was vested with this power. However, the Fifth Amendment

legalized the formation of a Supreme Judicial Council (SJC). And the SJC, consisting of the

Chief Justice and two next senior-most judges of the Supreme Court, was empowered to

impeach judges on the grounds of proven misbehavior or incapacity.

The higher judiciary of Bangladesh is not totally free from the reins of the executive while

performing its functions. This is evident from the fact that the President after prior

consultation with the Chief Justice and on advice from the Prime Minister would appoint

judges in the SC, as per articles 95(1) and 48(3) of the Constitution respectively.

After their appointment, the question arises as to their tenure of office and circumstances of

misconduct due to which a justice can be impeached. However, the 16th amendment restored

the power of impeachment of SC judges back to the Parliament.

8
In accordance with the newly-inserted article 96(2) of the Constitution has restored the

power to the parliament to impeach the judges of the Supreme Court followed by an order of

the President. Article 96(3) has empowers the parliament to regulate the procedure by law.

The fundamental concept of impeachment is simple. Judges appointed under Article 94,95 of

the BD. Constitution “hold their Offices during good behavior. And thy are impeached under

Article 96. Constitution for guidance e. President, Vice President and “all civil Officers of the

State,” including federal judges , may be removed for “Treason, Bribery, or other high

Crimes and Misdemeanors.”

1.2 Object of study

The study has covered the 16th amendment 2014, debates, arguments and controversies

regarding the amendments have been discussed.

The main objectives of the study are to:

- Know and analyze the sixteen amendment of the Bangladesh Constitution; -

-Focus on the impeachment of judges

- Understand the validity of sixteen amendment’.

1.3 Importance of studies

Bangladesh adopted its Constitution in 1972. However the first initiative of amending the

Constitution was taken in 1973 and from than to till today the Constitution has been amended

under different regimes.

9
In this study it has taken an attempt to closely analyze the sixteen amendment 2014 to the

Bangladesh constitution. The study covers the impeachment of judges and open up an

opportunity to make a comparative analysis.

The findings of the study is helpful to the academics, constitutional experts, students,

researchers and others.

1.4 Question of research

1. Weather 16th amendment is legal or not?

2. How a judge should be impeached?

3. Is impeachment by parliament affected to the independence of judiciary?

4. Is the sixteenth amendment violating the basic structure of Bangladesh constitution?

5. Is sixteenth amendment violate the separation of power?

1.5 Methodology

Then I have gone some books shops to purchase books relating to the given topics. However,

the information is not sufficient. Then I have started searching the World Wide Web and

internet through Google search engines to find out relevant materials about the topic. I have

also found some other study materials from some important books. After studying the all

document, I prepared the research paper on sixteen Amendment of Bangladesh Constitution .

At the beginning of preparing this research paper I have follow the instruction of my

honorable teacher lecturer, Department of Law, IIUC. Then I inquired the library of our

university and asked for some reference books relating to the given topic amendment of

Bangladesh Constitution and basic structure doctrine but no such books were available.

10
1.6 Limitation of Study

Although this research was carefully prepared, researcher is still aware of its limitations and

shortcomings. In this study it is tried to analyze various books, journals, documents etc. But

the materials are not sufficient and very few pertinent research works are found in this regard.

Moreover, web documents on the research area are limited; even their downloading or

reading subscription is too high to have. So the non-availability of relevant materials was a

limitation to this work.

11
 Chapter: 2

Definition & Scenario of amendments of Bangladesh constitution

2.1 Definition

Separation of power:

Separation of powers, therefore, refers to the division of government responsibilities into

distinct branches to limit any one branch from exercising the core functions of another. The

intent is to prevent the concentration of power and provide for checks and balances.

Separation of powers, division of the legislative, executive, and judicial functions of

government among separate and independent bodies. Such a separation, it has been argued,

limits the possibility of arbitrary excesses by government, since the sanction of all three

branches is required for the making, executing, and administering of laws.1

The doctrine may be traced to ancient and medieval theories of mixed government, which

argued that the processes of government should involve the different elements in society such

as monarchic, aristocratic, and democratic interests. The first modern formulation of the

doctrine was that of the French writer Montesquieu in De l’esprit des lois (1748), although

the English philosopher John Locke had earlier argued that legislative power should be

divided between king and Parliament.

Montesquieu’s argument that liberty is most effectively safeguarded by the separation of

powers was inspired by the English constitution, although his interpretation of English

political realities has since been disputed. His work was widely influential, most notably

in America, where it profoundly influenced the framing of the Constitution. The U.S.

1
https://www.britannica.com/topic/separation-of-powers

12
Constitution further precluded the concentration of political power by providing staggered

terms of office in the key governmental bodies.2

Modern constitutional systems show a great variety of arrangements of the legislative,

executive, and judicial processes, and the doctrine has consequently lost much of its rigidity

and dogmatic purity. In the 20th century, and especially since World War II, governmental

involvement in numerous aspects of social and economic life has resulted in an enlargement

of the scope of executive power. Some who fear the consequences of this for individual

liberty have favored establishing means of appeal against executive and administrative

decisions (for example, through an ombudsman), rather than attempting to reassert the

doctrine of the separation of powers.3

Rule of Law

The rule of law is an ambiguous term that can mean different things in different contexts. In o

ne context the term means ruleaccording to law. No individual can be ordered by the govern

ment to pay civil damages or suffer criminal punishment exceptin strict accordance with well

established and clearly defined laws and procedures. In a second context the term means rule

under law. No branch of government is above the law, and no public official may act arbitrari

ly or unilaterally outside the law.In a third context the term means rule according to a higher l

aw. No written law may be enforced by the government unless itconforms with certain unwrit

ten, universal principles of fairness, morality, and justice that transcend human legal systems.

Absolute predominance or supremacy of ordinary law of the land over all citizens, no matter

how powerful. First expounded by the UK law Professor A. V. Dicey in his 1885 book

'Introduction To The Study Of Law Of The Constitution,' it is based on three principles that

2
ibid
3
ibid

13
(1) legal duties, and liability to punishment, of all citizens, is determined by the ordinary

(regular) law and not by any arbitrary official fiat, government decree, or wide discretionary-

powers, (2) disputes between citizens and government officials are to be determined by the

ordinary courts applying ordinary law, and the (3) fundamental rights of the citizens (freedom

of the person, freedom of association, freedom of speech) are rooted in the natural law, and

are not dependent on any abstract constitutional concept, declaration, or guaranty.

Judicial independence

Judicial independence is the concept that the judiciary needs to be kept away from the other

branches of government. That is, courts should not be subject to improper influence from the

other branches of government, or from private or partisan interests. Judicial Independence is

vital and important to the idea of separation of powers.

2.2 A list of Amendments to the constitution of Bangladesh (1st to 16th)

Amendments Date Summery of substance

1st Amendment 15th July 1973 To make way for prosecution of genetic

crime against humanity and war crimes

committed in the liberation war of 1971.

2nd Amendment 22nd September, Inclusion emergency provision suspension

1973 of fundamental rights and preventive

detention.

3rd Amendment 28th November To give effect to the boundary line treaty

1974 between Bangladesh and India.

4th Amendment 25th January, 1975 One party dictatorial system was subsisted

14
 for a responsible parliamentary system.

5th Amendment 6th April, 1979 Legalising all acts done by the first Military

Authority

6th Amendment 10th July, 1981 To make way for the Vice President to be a

candidate in president election.

7th Amendment 10th November, Legalising all acts done by the 2nd Military

1986 Authority.

8th Amendment 9th June, 1988 Setting up six permanent Benches of the

High Court Division and making ‘Islam’ the

state religion.

9th Amendment 11th July, 1989 Direct election of the president and the Vice-

President simultaneously.

10th Amendment 23rd June, 1990 Period for reservation of 30 women

members seats in the parliament was

extended for 10 years.

11th Amendment 10th August 1991 Legalising the appointment of Shahabuddin

Ahmed, Chief Justice of Bangladesh as Vice

President of Bangladesh and his all activities

as the Acting President and then the return to

his previous position of the Chief Justice of

Bangladesh.

12th Amendment 18th September, Reintroducing the parliamentary system.

1991

15
13th Amendment 28th March, 1996 Provision for Caretaker Government.

14th Amendment 16th May 2004 Provision regarding women in the

parliament

15th amendment 30th July 2011 Increased women reserve seat, restored

secularism, acknowledged Sheikh Mujibur

Rahman as the father of nation, scrapped the

system of caretaker government of

Bangladesh.

16th Amendment 17th September Gave power of impeachment of judges to the

2014 parliament.

16
 Chapter: 3

The 16th Amendment: An Overview

3.1 Constitutional History of Impeachment of judges

The first constitution of Bangladesh, drafted in 1972, gave the Parliament the power to

impeach the judges of the Supreme Court (SC). Then, following the fourth amendment, the

President of Bangladesh was vested with this power. However, the Fifth Amendment

legalized the formation of a Supreme Judicial Council (SJC). And the SJC, consisting of the

Chief Justice and two next senior-most judges of the Supreme Court, was empowered to

impeach judges on the grounds of proven misbehavior or incapacity.

3.2 16th Amendment

Bangladesh Act No XIII of 2014 amended the Constitution of Bangladesh, empowering

Parliament to impeach Supreme Court judges. 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:4

(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 (2)

and for investigation and proof of the misbehavior or incapacity of a Judge.

4
Bangladesh Act No XIII of 2014 amended the Constitution of Bangladesh.

17
(4) A Judge may resign his office by writing under his hand addressed to the president.

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.

3.3 A comparative study between 5th and 16th

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:

(2) A judge shall not be removed from 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 two next senior judges.

Under 16th amendment, by an Act of Parliament there shall be an investigating or inquiring

authority which is quite distinct and separate from the Legislature or the Executive organ of

the State.

An accused Judge will be fully entitled to defend himself during investigation or inquiry, as

the case may be.

That being so, he will not suffer any prejudice on any count.

18
Under 5th amendment, there shall be a judicial council, which shall consist of chief justice &

two next senior judge.

The council shall prescribe the code of conduct to be observed by the judges.

The council shall inquire into the capacity or conduct of the judges.

Upon any information received from council the president shall remove the judges on the

ground of misconduct, physical or mental incapacity.

The independent of judiciary specially the constitutional status and sanctity of the Supreme

Court was restored by 5th amendment. Though the unhealthy provision introduced by the 4th

amendment relating to appointment of judges were left untouched, the provisions for security

of tenure which is the first and the most important condition of independence of judiciary was

restored by providing a healthy device of Supreme Judicial Council. Moreover, in respect of

control including the power of posting, promotion and grant of leave and discipline of the

subordinate judges and magistrates which was vested absolutely in the president under the 4th

amendment, it was provided that the president should exercise that control in consultation

with the Supreme Court. Thus constitutional aspect of independence of both higher and lower

judiciary was restored

19
 Chapter: 4

Impeachment on world perspective:

4.1 Commonwealth countries

According to the Commonwealth Latimer House Principles, proceedings to determine

whether a judge should be removed from office ‘should include appropriate safeguards to

ensure fairness’. The Latimer House Guidelines further indicate that a judge facing removal

‘must have the right to be fully informed of the charges, to be represented at a hearing, to

make a full defence and to be judged by an independent and impartial tribunal’. The common

law principles of administrative law require, in addition: a presumption of innocence in

questions of wrongdoing; sufficient time to prepare a defence; the opportunity to present

evidence and where relevant to cross-examine witnesses; a right to legal or other

representation; a right to reasons, particularly in matters such as these in which there is great

public interest; and the possibility of judicial review to ensure that all the legal requirements

of the removal process are adhered to in practice, and, where appropriate, also an appeal

which may consider both questions of law and fact. As far as the institutions and public

bodies responsible for removal decisions are concerned, several different approaches exist. In

42% of Commonwealth jurisdictions, once an initial investigation establishes that a question

of removal has arisen, an ad hoc tribunal is formed to determine the issue. In another 21% of

jurisdictions a permanent disciplinary council is established for that purpose. A parliamentary

removal mechanism is found in 34% of jurisdictions. In the remaining 4% of jurisdictions,

SUMMARY OF FINDINGS AND BEST PRACTICE xxi Comp of Judicial Proj_Summary

20
25/6/15 13:05 Page xxi some judges are removed by a parliamentary process and others by a

disciplinary council.5

4.2 USA

Article III federal judges are appointed to life terms while serving "during good Behaviour,"

as stated in Section 1 of Article III of the United States Constitution. Though it does not

expressly state in the Constitution that judges may be impeached and removed from office,

they fall under the label of "Civil Officers" in Article II, Section 4. That says:6

“ The President, Vice President and all Civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes
and Misdemeanors.

Proceedings

Article II of the Constitution gives the United States House of Representatives sole power of

impeachment, and assigns the power to try impeachments to the United States Senate.

The process of what is known as impeachment contains two steps. The first step, the one

that is technically the impeachment, is taken by the House of Representatives. By a simple

majority, the House can vote to impeach a federal official. Then, once the official is

impeached, the Senate holds a trial to determine if the official should be convicted, in which

case the official is removed from office. The Senate, however, needs a two-thirds majority to

convict. Very few federal officials have ever been impeached, and even fewer have been

convicted and removed from office. By way of example, President Bill Clinton was
”
impeached by the House of Representatives, but he was not convicted by the Senate. The

5
http://thecommonwealth.org/sites/default/files/press-
release/documents/Compendium%20on%20Judicial%20Appt%20Tenure%20and%20Removal%20in%20the%2
0Commonwealth.pdf
6
https://ballotpedia.org/Impeachment_of_federal_judges

21
 impeachment of federal judges, in fact, is often an even more murky process than the

impeachment of other officials. While Article II, Section 4contains some vague guidelines

for what warrants impeachment proceedings – and this section relates to federal officials in

general – Article Three only explains that judges are supposed to remain in office only while

in “good Behavior.”7

Fifteen federal judges have been impeached. Of those fifteen: eight were convicted by the
Senate, four were acquitted by the Senate, and three resigned before an outcome at trial.

4.3 UK

Judges in England and Wales hold office ‘during good behaviour’. They are removed from

office by the Crown on an address presented by both Houses of Parliament (Senior Courts

Act 1981, s 11(3)). – The same removal mechanism applies to members of the UK Supreme

Court (CRA, s 33). A member of the Supreme Court who faces an allegation of misconduct

will have the opportunity to appear before a tribunal whose members include the heads of

court of the various jurisdictions within the UK, and the tribunal must report before any

motion is tabled in Parliament.8

If a complaint is received against a judge in England and Wales, the Office for Judicial

Complaints operates a system of preliminary inquiry and investigation carried out by two

different judges, followed by a review panel which decides whether to advise the Lord

Chancellor to table a motion in Parliament (Judicial Discipline (Prescribed Procedures)

Regulations 2013).

In Scotland, judges are removed by the Crown on recommendation by the Scottish First

Minister. The recommendation cannot be made unless a resolution to that effect is passed by

7
https://constitutionallawreporter.com/article-03-section-01/impeachment-of-federal-judges/
8
https://www.supremecourt.uk/about/judicial-conductand-complaints.html

22
the Scottish Parliament on a motion initiated by the First Minister. That motion cannot

however be initiated unless a tribunal, constituted of two serving or retired judges, a senior

lawyer and a lay person, has laid before the Scottish Parliament a report concluding that the

judge is unfit for office by reason of inability, neglect of duty or misbehaviour. In the case of

proposed removal of the Lord President or the Lord Justice Clerk, the Scottish First Minister

must also consult the UK Prime Minister 9

A similar provision applies in Northern Ireland, where the tribunal consists of two senior

judges and a lay member of the Northern Ireland Judicial Appointments Commission 10

4.4 INDIA

Judges may be removed on the grounds of ‘proved misbehaviour or incapacity’ (arts 124(4)

and 218). – The process of removal is initiated by the presentation in either House of

Parliament of a notice of a motion for removal. In the Lok Sabha (Lower House), such a

notice must be signed by at least 100 of its 545 members. In the Rajya Sabha (Upper House)

the notice must be signed by at least 50 of its 250 members. – Once a motion to impeach a

judge has been presented, the presiding officer of the House will decide whether the issue

raised warrants admitting the motion. If the issue is considered serious enough, then the

presiding officer must constitute an ad hoc investigating committee (Judges (Inquiry) Act

1968, s 3(1)–(2)). – The committee, composed of a Supreme Court judge, a High Court Chief

Justice and a distinguished jurist (Judges (Inquiry) Act 1968, s 3(2)) is responsible for

verifying the misbehaviour or the incapacity of the judge. The judge is given the opportunity

to submit an initial written statement, to respond to the charges and then has the right to

9
(Scotland Act 1998, s 95 and Judiciary and Courts (Scotland) Act 2008, ss 35–38).
10
(Judicature (Northern Ireland) Act 1978, s 12C).

23
cross-examine witnesses, adduce evidence and to be heard in his defense (Judges (Inquiry)

Act 1968, ss 3(4) and 4(1)). – Only if the Committee concludes that the judge is guilty of any

misbehavior or suffers from any incapacity may the Houses of Parliament vote on a motion

for the judge’s removal (Judges (Inquiry) Act 1968, s. 6(2)). If the motion is passed by an

absolute majority of the members of each House, and by at least two-thirds of those present

and voting, the President may remove the judge from office (arts 124(4) and 218).11

11
Constitution of India

24
 Chapter 5

Judicial and constitutional impacts on 16th amendment

5.1 Writ against 16th amendment

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh

was made against 16th amendment by Advocate Asaduzzaman Siddiqui, and others .......

Petitioners, Versus Bangladesh represented by the Cabinet Secretary, Cabinet Division,

Bangladesh Secretariat, Police Station Shahbag, Dhaka-1000 and others ......Respondents.

Mr. Manzill Murshid with Mr. Moyeen A. Firozze and Mr. Sanjoy Mandal were Advocates

for the petitioners.12

Mr. Mahbubey Alam, Attorney General with Mr. Md. Motaher Hossain (Sazu), DAG, Ms.

Purabi Rani Sharma, AAG, Mr. A.B.M. Mahbub, AAG and Ms. Purabi Saha, AAG were for

the respondent no. 1, Mr. Murad Reza, Additional Attorney-General with Mr. Amit

Talukderand DAG for the respondent no. 4 13

Grounds of petitioner on the writ14

1. The background of the initiative to amend the relevant provisions relating to the removal

of the Judges of the Apex Court emanated from some incidents which took place in the

recent past. 1. one of them is that our Parliament passed a law of Contempt of Court in

2013, the High Court Division declared the said law of Contempt of Court of 2013 void

and ultra vires the Constitution.

12
Judgment of high court division regarding 16th amendment
13
ibid
14
ibid

25
An amendment was made in the Anti-Corruption Commission Act of 2004 for the protection

of public servant from the charge of corruption, the High Court Division declared the

amendment void and ultra vires the Constitution.

In a seven-murder case in Narayanganj which murder was committed by law enforcing

agencies, a Public Interest Litigation was filed before the High Court Division and the High

Court Division directed the concerned authorities to arrest those personnel of the law-

enforcing agencies. thereafter an evil move was taken by the political executives to amend

Article 96 of the Constitution through the Parliament.

This move was crystallized by the passing of the Sixteenth Amendment at the behest of the

political executives with the mala fide intention of interfering with the independence of the

Judges of the Supreme Court of Bangladesh in the discharge of their judicial functions.

2. In most of the cases (Writ Petitions), the Government is the respondent; but the Members

of Parliament are vitally interested in those cases arising out of the development activities

in their local areas.

Moreover, in the present context of Bangladesh, most of the Members of Parliament are from

business sectors and by that reason, they have personal interest in those cases. Against this

backdrop, the Judges of the Apex Court would suo motu be restrained from passing any order

in the cases in which the Members of Parliament are interested.

In view of the Sixteenth Amendment, any Member of Parliament can bring a motion against

any Judge of the Supreme Court and discuss the same therein and due to this reason, no Judge

will be able to perform his duties impartially and independently. In the long run, justice will

be frustrated and administration of justice will collapse in no time.

26
3. The Sixteenth Amendment is ultra vires the Constitution as it is in direct conflict with and

contradictory to the spirit of the Preamble of the Constitution.

4 Independence of the Judiciary is one of the basic features of the Constitution as

expounded in Anwar Hossain Chowdhury and others…Vs…Bangladesh and others

(popularly known as Eighth Amendment Case) [1989 BLD (SPL) 1] which has been

reiterated and reaffirmed in Masdar Hossain’s Case [52 DLR (AD) 82]. The primary

objective of the Sixteenth Amendment is to destroy the principle of independence of the

Judiciary and to render the Judiciary impotent and ineffective.

5 It is violative of Article 7B of the Constitution as no provisions relating to the basic

structures of the Constitution shall be amendable by way of insertion, modification,

substitution, repeal or otherwise.

6 The Sixteenth Amendment blatantly destroys the spirit and essence of the provisions of

Article 22 of the Constitution and thereby blurs the separation of powers among the

different organs of the State and clearly establishes the domination of the Executive

through the Parliament over the Judiciary which will create a great imbalance within the

constitutional bodies and thereby make the Judiciary a mockery and a toothless and

tearful silent witness.

7 The Sixteenth Amendment is also ultra vires the Constitution as by dint of Article 70, the

Members of Parliament can not express their independent views/opinions against their

partyline and as a natural corollary thereto, the removal of the Judges of the Apex Court

of Bangladesh will be prejudiced by its direct implication.

8 The Sixteenth Amendment is ultra vires the Constitution as it has undermined the

authority and dignity of the Apex Court because of the fact that the validity of the

27
 proceedings in the Parliament can not be questioned in any Court by virtue of Article 78

of the Constitution. As such the Judiciary will be at the mercy of the Executive through

the Legislature and it will not be able to safeguard itself.

9 The Supreme Court of Bangladesh being the guardian of the Constitution must not allow

any inroad upon the Constitution; but the Sixteenth Amendment is an inroad upon the

independence of the guardian of the Constitution.

10 In the Fifth Amendment Case, the High Court Division declared the Constitution (Fifth

Amendment) Act, 1979 illegal and void abinitio subject to certain condonations. The

Appellate Division in the Fifth Amendment Case endorsed those condonations with some

modifications. As per the judgment of the Appellate Division passed in the Fifth

Amendment Case, the provisions relating to the Supreme Judicial Council were kept

intact in the Constitution of Bangladesh.

So the sixteen amendment violate the verdict of appellant division by giving the power of

removal of judges of the supreme court, to the parliament.

11 In the Supplementary Affidavit dated 27.05.2015, it has been mentioned by the

petitioners that the Sixteenth Amendment is inconsistent with and violative of Article 147

(2) of the Constitution which provides that the remuneration, privileges and other terms

and conditions of service of a person holding or acting in any office to which this Article

applies shall not be varied to the disadvantage of any such person during his term of

office. As per Article 147(4) of the Constitution, this Article (Article 147) applies,

amongst others, to the office of a Judge of the Supreme Court. The Sixteenth Amendment

has undoubtedly varied the removal mechanism of the sitting Judges of the Supreme

Court of Bangladesh for their misconduct or incapacity to their disadvantage. As such the

Sixteenth Amendment is illegal and void.

28
12 The Sixteenth Amendment will also directly affect the Election Commissioners,

Comptroller and Auditor-General, Members of the Public Service Commission as well as

Members of the Anti-Corruption Commission. By virtue of this Amendment, they will be

removed in like manner as a Judge of the Supreme Court according to Articles 118(5),

129(2) and 139(2) of the Constitution of Bangladesh and Section 10(3) of the Anti-

Corruption Commission Act, 2004 respectively. The independence of the Commissioners

of the Anti-Corruption Commission and the Comptroller and Auditor-General of

Bangladesh will be in jeopardy inasmuch as they will not be able to act impartially and

effectively against the misdeeds of the concerned Members of Parliament who are their

real bosses.

13 One of the main components of judicial independence is strong protection against

removal from office. That international standard on judicial removal has been emphasized

in the “UN Basic Principles On The Independence Of the Judiciary” as adopted by the

General Assembly in 1985. The Judges of the Supreme Court can not be removed without

proven misconduct or incapacity by a fair, unbiased, independent and impartial body who

is free to conduct the inquiry and make a determination on its own from the influence of

the other branches of the State.

The Sixteenth Amendment by way of giving power of removal of the Judges of the Supreme

Court to the Members of Parliament is definitely against the spirit of the independence of the

Judiciary. This amendment has been made in exercise of the derivative power of the

Constitution and this will not automatically make the amendment immune from challenge by

way of judicial review. No amendment to the Constitution can be made in exercising

derivative power violating the existing provisions of the Constitution and the limitations

imposed by it. So the Sixteenth Amendment is ultra vires the Constitution.

29
Grounds of respondent against the writ pititions

1. In the Fifth Amendment Case, all martial law proclamations, martial law regulations,

martial law orders made/promulgated during the period between 20th August, 1975 and 9th

April, 1979 which were validated by the Act No. 1 of 1979 was declared illegal, void abinitio

and ultra vires; but those were provisionally condoned until 31st December, 2012 so as to

enable the Parliament to make necessary amendment to the Constitution (vide judgment and

order dated 11th May, 2011 passed by the Appellate Division in Civil Review Petition Nos.

17-18 of 2011). So it is totally a misconceived idea that in the Fifth Amendment Case, the

Appellate Division of the Supreme Court by its observation favoured to retain or condone the

provisions of the Supreme Judicial Council which were introduced by General Ziaur

Rahman.

2. Thereafter the Constitution (Fifteenth Amendment) Act was passed in 2011 which

endorsed the system of the Supreme Judicial Council which may be considered as a departure

from the original provisions of the Constitution relating to removal of the Judges of the

Supreme Court by the Parliament. Finally it was thought expedient and necessary to

restore/revive the original provisions of the Constitution about removal of the Supreme Court

Judges through the Parliament which were introduced in Article 96 of the original

Constitution and therefore, the Sixteenth Amendment was passed in 2014 reviving the

relevant provisions (provisions of Article 96) of the original Constitution.

3. The Sixteenth Amendment is not intended to dominate the Judiciary by the Executive

through the Legislature undermining its independence.

4. In the instant Writ Petition, no public interest is involved for which the Sixteenth

Amendment can be challenged in the form of judicial review of any legislative action nor the

same is amenable to judicial review.

30
5. The Sixteenth Amendment is not ultra vires; rather it is intra vires the Constitution which

cannot be called in question by way of judicial review in that the same has revived and

restored the original provisions of Article 96 of the Constitution (barring age limit) relating to

removal of the Supreme Court Judges. As the Parliament has restored the original provisions

of Article 96 of the Constitution, the Sixteenth Amendment can not be subjected to judicial

scrutiny. No provision of the original Constitution as enacted and adopted by the Constituent

Assembly in 1972 can be judicially reviewed.

6. By enacting the Sixteenth Amendment, the Government has taken the necessary initiative

to maintain the high judicial standard of the Supreme Court Judges and to keep their jobs

secured following the best practices of the contemporary world.

The system of parliamentary removal of Judges has a long history.It was developed in the

18th century in England to ensure that the King could only dismiss a Judge if both Houses of

Parliament passed a resolution or “address” calling for the removal of the Judge.

Parliamentary removal procedure is in place in 33% Commonwealth jurisdictions. The

Westminster model of parliamentary removal of Judges as has been reintroduced in

Bangladesh through the Sixteenth Amendment is a standard mechanism of removal of Judges

of the Supreme Court of Bangladesh for their proved misbehaviour or incapacity.

7. It is not true that the Members of Parliament have been empowered to perform the

functions of all development activities of their local areas and the whole administration is

under their control. Though the Government has made them advisers to the Upazilla

Parishads, yet it does not necessarily mean that they control the whole of the local

administration. The Members of Parliament have no scope to act arbitrarily and illegally.

There is not a single instance that exposes the interest of the Members of Parliament in any

31
case where the Judges of the Supreme Court have restrained themselves from passing any

order in connection therewith.

8. It is not correct that by reason of Article 70 of the Constitution, the Members of Parliament

can not express their independent views and opinions against the stance of their respective

parties. Every Member of Parliament has the right to express his/her opinion in the

Parliament. Removal of Judges is not a political issue; rather it is a delicate constitutional

issue that demands a debate in the Parliament among all the members irrespective of their

political identity.

9. The statement made in the Writ Petition that the Sixteenth Amendment has undermined the

authority and dignity of the Apex Court because of the fact that the validity of the

proceedings in the Parliament can not be called in question in any Court by reason of Article

78 of the Constitution is quite meaningless and unwarranted. The Constitution itself has given

the mandate that the validity of the Parliamentary proceedings shall not be called in question

in any Court of law. Being the sovereign law-making body, Parliament’s proceedings are

immune from judicial interference. This is a universal practice prevailing all over the world.

10. Had Article 96 of the Constitution not been unconstitutionally and illegally amended by

the unconstitutional military regime introducing the system of the Supreme Judicial Council,

the Sixteenth Amendment would not have been required to restore Article 96 to its original

position of 1972. The Supreme Court is the guardian of the Constitution, but not the

supervisor of the whole governmental process.

The Sixteenth Amendment is a valid piece of legislation. So the Rule is liable to be

discharged.

32
5.2 Judgment of HCD

The high court seeks opinions from the following person as Amici Curiae , Dr. Kamal

Hossain, Senior Advocate, Mr. M. Amir-ul Islam, Senior Advocate, Mr. Rokanuddin

Mahmud, Senior Advocate and Mr. Ajmalul Hossain QC, Senior Advocate.15

The writ petition was heard on 28.05.2015, 18.06.2015, 02.07.2015, 30.07.2015, 06.08.2015,

19.08.2015, 20.08.2015, 02.09.2015, 03.09.2015, 09.09.2015, 11.11.2015, 01.12.2015,

02.02.2016, 03.02.2016, 04.02.2016, 23.02.2016, 03.03.2016 and 10.03.2016.

Judgment was given by the high court division on 05.05.2016.

Moynul islam .j said that, he has no hesitation in holding that the Sixteenth Amendment is a

colourable legislation and is violative of separation of powers among the 3(three) organs of

the State, namely, the Executive, the Legislature and the Judiciary and independence of the

Judiciary as guaranteed by Articles 94(4) and 147(2), two basic structures of the Constitution

and the same are also hit by Article 7B of the Constitution. So he finds merit in the Rule. The

Rule, therefore, succeeds. Accordingly, the Rule is made absolute without any order as to

costs.

It is hereby declared that the Constitution (Sixteenth Amendment) Act, 2014 (Act No. 13 of

2014) (Annexure-‘A’ to the Writ Petition) is colourable, void and ultra vires the Constitution

of the People’s Republic of Bangladesh.

However, as per Article 103(2)(a) of the Constitution, we certify that the case involves a

substantial question of law as to the interpretation of the Constitution.

QUAZI REZA-UL HOQUE J: & MD. ASHRAFUL KAMAL, J: agreed with the judgment

of moynul islam.
15
Judgement of high court division on 16th amendment

33
5.3 Appeal against judgment:

Government of Bangladesh and others (appellant) applied an appeal from the judgment and

order passed by the high court division in writ petition No 9989 0f 2014 before the appellate

division versus Advocate Asaduzzaman Siddiqui and others (respondent).

The appeal was heard on 8th, 9th , 21st, 22nd, 23rd, 24th, 25th, 28th, 29th, 30th May,

2017 and 1st June, 2017. And the Judgment was passed on 3rd July, 2017.

Judgment of Appellate Division

An Order was passed by appellant division. Since all but one wrote separate judgments

expressing their separate opinions, we unanimously dismiss the appeal, expunge the remarks

made by the High Court Division as quoted in the judgment of the learned Chief Justice and

also restore clause (2) (3), (4), (5), (6) and (7) of article 96 and also approve the Code of

Conduct formulated in the main.

The 799-page verdict has been written by the chief justice, Surendra Kumar Sinha, and the

other six judges of the Appellate Division - Md Abdul Wahhab Miah, Nazmun Ara Sultana,

Syed Mahmud Hossain, Muhammad Imman Ali, Hasan Foez Siddique, and Mirza Hussain

Haider - have concurred with the views of the chief justice.

The full bench of the Appellate Division of the Supreme Court unanimously declared the

16th amendment of the Constitution as illegal, affirming the judgment the earlier decision of

the High Court Division. By this trailblazing verdict, the power to impeach a Judge of either

34
division of the Supreme Court remained in the hands of the President, on a report of inquiry

of the Supreme Judicial Council as enshrined in art. 96 of the Constitution.16

This decision was based on the doctrine of separation of powers among the three organs of

the state namely Legislature, Executive and Judiciary. Our Constitution is largely found upon

the doctrine of Separation of Power, which was projected to the whole world by the French

Philosopher Montesquieu who, through his theory, had us to believe that assimilation of all

three kinds of power in one authority, would ensue tyranny. This separation is a prerequisite

to ensure independence of higher judiciary as enshrined in art. 95 of the Constitution.

Moreover, separation of judiciary is a provision of our Constitution under art. 22, as such, a

part of the ‘Basic Structure’ of the Constitution too under art. 7B. Consequently, the

Parliament, although got power to amend any provision of the Constitution under art. 142,

but it cannot make any amendment which withers away any provision of basic structure

under art. 7B.17

People from different corners of the legal arena including intellectuals, practitioners, teachers,

students mostly welcomed the verdict. The Government, however, became outstandingly

astonished to, and seriously dissatisfied, with the verdict. The key argument placed by the

Govt. was centered around the ‘Impeachment-Power’, which was vested in the Parliament

under the original Constitution of 1972, and subsequently forwarded to the President through

the Fourth Amendment of the Constitution in 1975.18

16
https://futrlaw.org/judgment-16th-amendment-case-new-dimension-judicial-interpretation/
17
ibid
18
ibid

35
5.4 Pending Review

Law minister Anisul Huq on Friday said the government is making preparations to file a

review petition against the 16th amendment verdict that scrapped parliament’s power to

remove judges on the grounds of misconduct and incapacity.

The verdict is being scrutinised. The government is getting ready to file the review petition,”

said Anisul. He went on to say, “We don’t agree with the verdict, but we are respectful of it.”

The Appellate Division of the Supreme Court on 3 July this year scrapped the 16th

amendment and restored the Supreme Judicial Council as well as the full text of the verdict

was released 1 August, stirring a huge debate over which of the state organ is sovereign - is it

the legislature or the judiciary

36
 Chapter: 6

Opinions of Legal experts

The 16th amendment debate is now seriously intense at several levels. It is a conflict between

the Judiciary and the Legislature as its powers to remove Judges have been taken away. Many

legal experts have given several opinions about the sixteenth amendment. This chapter

focuses some expert’s opinions regarding the sixteenth amendment.19

.6.1 Opinion of D. Kamal Hossain:

D. kamal Hossain, who was the Chairman of the Bangladesh constitution drafting Committee

and acted in sixteenth amendment case as amicus curia. His opinion is that the sixteenth

amendment is ultra virus the constitution his opinion is based on the following grounds:

 The independence of the Judiciary is the foundation stone of the Constitution as

contemplated by Article 22 and it is one of the fundamental principles of State policy and

the significance of the independent Judiciary, free from the interference of the other

2(two) organs of the State, has been emphasized in Articles 94(4), 116A and 147 of the

Constitution and in the Eighth Amendment Case, it has been held that Democracy,

Republican Government, Unitary State, Separation of Powers, Independence of the

Judiciary, Rule of Law, Fundamental Rights etc. are basic structures of the Constitution.

 The consensus appears to be that the constitutional principle of independence of the

Judiciary is intended to exclude any kind of partisan exercise of power by the Legislature

in relation to the Judiciary, in particular, the power of the Legislature to remove the Judges

of the Supreme Court of Bangladesh.

19
Juggement of appellant division against the appeal of the judgement of highcourt division on 16th
amendment.

37
 Although the independence of the Judiciary is an essential element of the rule of law, yet

by enacting the Sixteenth Amendment, the Parliament is prone to exercise control over the

Judiciary by way of preserving a right to take decisions on the question of removal of the

Judges of the Supreme Court.

 In the original 1972 Constitution, removal of Judges of the Supreme Court was entrusted

to the Parliament on the premise that the Parliament being constituted by the elected

representatives of the people, when in exercising its power, would do so conscientiously

and independently, free from any party directive and this is how it was perceived when a

similar provision was adopted in the Indian Constitution and both in the Indian

Constitution and in the original 1972 Constitution of Bangladesh, the power of removal of

any Judge would only be exercised after an inquiry conducted by an independent Judicial

Inquiry Committee; but H. M. Seervai has expressed his concern in his book “The

Position of the Judiciary under the Constitution of India” (published by Bombay

University Press) at page 109 that political and party considerations have come into play

in impeachment proceedings.

 Article 96 of the original 1972 Constitution relating to the removal of Judges was

materially affected by the Fourth Amendment of the Constitution in 1975 which deleted

Clause (3) of Article 96 and thereafter by the Fifth Amendment of the Constitution, the

provisions for removal of Judges by the Supreme Judicial Council were introduced and

ultimately the Fifth Amendment was held to be unconstitutional by the Appellate

Division in the Fifth Amendment Case, albeit the Appellate Division condoned the

provisions relating to the Supreme Judicial Council in Article 96 of the Constitution; but

38
 the impugned Sixteenth Amendment purports to violate the judgment of the Appellate

Division passed in that case.

 The Judges cannot perform their solemn duties unless their independence is guaranteed

and protected by securing their tenure as underlined in the United Nation’s Instrument on

“Basic Principles on the Independence of the Judiciary. the formal requirements of

independence of the Judges include, amongst others, their security of tenure and suitable

conditions of service.

 The Parliament, in disregard of the decision of the Appellate Division rendered in the

Fifth Amendment Case, has abolished the Supreme Judicial Council, which clearly

compromises and weakens the independence of the Judiciary through the Sixteenth

Amendment and this Sixteenth Amendment is violative of Articles 94(4) and 22 of the

Constitution by way of subjecting the tenure of the Judges of the Supreme Court to the

whims and caprices of the Members of Parliament.

 The consequence of the Sixteenth Amendment is that it has rendered the tenure of the

Judges of the Apex Court insecure and as such the Sixteenth Amendment has created an

opportunity to undermine the independence of the Judiciary by making the same

vulnerable to outside influences and pressures jeopardizing the rule of law in the country.

 As the Sixteenth Amendment is violative of independence of the Judiciary and separation

of powers, the same is in conflict with Article 7B of the Constitution and by that reason, it

is liable to be struck down.

 The Sixteenth Amendment has clearly varied the removal mechanism of the Supreme

Court Judges for their proved misbehavior or incapacity to their disadvantage during their

term of office and in this perspective, the Sixteenth Amendment is violative of Article

147(2) of the Constitution.

39
 Article 23 of the “Beijing Statement of Principles of the Independence of the Judiciary”

provides that by reason of difference in history and culture, the procedure adopted for the

removal of Judges may differ in different societies and removal by Parliamentary

procedures has traditionally been adopted in some jurisdictions; but in other jurisdictions,

that procedure is unsuitable and its use other than for the most serious of reasons is apt to

lead to misuse and having regard to the socio-political conditions of Bangladesh, the

provisions relating to the Supreme Judicial Council for removal of the Judges of the

Supreme Court are best suited.

 The American scenario of impeachment of the Judges has been criticized as an

unsatisfactory process in which “political and party influence has come into play” and

thus, the risk of impeachment being highly politicized will be even more conspicuous in

the current political context of Bangladesh, especially due to the presence of Article 70 in

the Constitution of Bangladesh and viewed from this angle, the independence of the

Judiciary will be endangered.

6.2 Opinion of Mr. M. Amir-ul Islam

Mr. M. Amir-ul Islam, learned Amicus Curiae, he was one of the Members of the

Constitution Drafting Committee in the post-liberation period in 1972. According to him the

sixteenth amendment is unconstitutional and illegal and violative of the separation of power.

He showed many arguments to support his opinion, these are:

40
 There was no other option for the Members of thedrafting Committee but to assign the

job of removal of the Supreme Court Judges to the Parliament and that being so, the

Parliament was entrusted therewith by the original Constitution of 1972.

 We learn through experience and experience is the best teacher of a person and

restoration of the original Article 96 of the Constitution by the Sixteenth Amendment is

not backed by experience and in this regard, the Sri Lankan, Indian and Malaysian

experiences are not happy.

 Separation of powers and independence of the Judiciary go hand in hand and the doctrine

of separation of powers must be adhered to in making the Judiciary completely

independent of the influence of the Executive or the Legislature and the Sixteenth

Amendment, it goes without saying, is a blow to the independence of the Judiciary.

 The removal procedure of the Judges of the Supreme Court is a part of their appointment

process, but unfortunately in Bangladesh, the appointment process of the Judges of the

Supreme Court is not transparent, open and public and even after 45 years of our

independence, Article 95(2)(c) of the Constitution relating to the other qualifications for

appointment of a Judge of the Supreme Court has not seen the light of the day to the great

detriment of public interest.

 The force of law is not logic, but experience and our experience shows that about 70% of

the Members of Parliament in Bangladesh are now-a-days businessmen and litigants and

41
 for the sake of independence of the Judiciary, they should not be involved in the process

of removal of the Judges of the Supreme Court of Bangladesh on the ground of proved

misbehavior or incapacity.

 The Parliamentary removal procedure of the Judges of the Apex Court is in vogue in

some countries of the world like the UK, USA, Canada, Australia, India etc., but that has

become obsolete and outdated with the growing constitutional jurisprudence of the

independence of the Judiciary .

 The historical perspective coupled with our experience and judicial observations in

various cases, namely, Masdar Hossain’s Case, Eighth Amendment Case, Fifth

Amendment Case etc. militate against the Sixteenth Amendment and homecoming of

Article 96 (restoration of Article 96) is not a plausible argument in the present scenario of

Bangladesh.

 The principle of independence of the Judiciary demands that a Judge should be tried by

his peers for his misbehavior/misconduct or incapacity and that will best guarantee his

independence in the discharge of his judicial functions.

42
6.3 Opinion of Mr. Rokanuddin Mahmud

Mr. Rokanuddin Mahmud, learned Amicus Curiae on the sixteenth amendment case. His

opinion about the sixteenth amendment case is given below:

 He does not find fault with the Sixteenth Amendment, but what is of paramount

importance is that the law to be framed pursuant to the amended Article 96(3) of the

Constitution must be gone into before he makes any submission on the point and unless

that law is framed by the Parliament, it is difficult to say at this stage as to whether the

Sixteenth Amendment has impaired the independence of the Judiciary or not.

 The Judges of the Supreme Court should be tried by their peers in case of misbehavior or

incapacity and that will guarantee the independence of the higher Judiciary to the fullest

extent and in this respect, the Supreme Judicial Council as introduced in Article 96 by the

Fifteenth Amendment of the Constitution is the best mechanism.

6.4 Opinion of Mr. Ajmalul Hossain

 The Sixteenth Amendment has restored the provisions of Article 96 of the original

Constitution of 1972, it will be an uphill job for him to assail the constitutionality of the

Sixteenth Amendment.

 The provisions relating to the Supreme Judicial Council were introduced by the Second

Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of

1977) and in the Fifth Amendment Case, the Appellate Division condoned those

provisions as being more transparent and safeguarding the independence of the Judiciary.

43
 In Civil Review Petition Nos. 17-18 of 2011 by the order dated 29th March, 2011, the

Appellate Division by modifying its earlier decision in the Fifth Amendment Case

provisionally condoned the provisions relating to the Supreme Judicial Council in Article

96 of the Constitution till 31st December, 2012 and the Fifteenth Amendment endorsed

the provisions relating to the Supreme Judicial Council in Article 96 and maintained the

same; but thereafter all of a sudden, the Sixteenth Amendment was pushed through

raising suspicions in the minds of the people about the independence of the higher

Judiciary.

 There is always a scope for abuse of the power of removal of the Judges of the Supreme

Court by the Members of Parliament on the strength of the Sixteenth Amendment

impairing the independence of the higher Judiciary.

 Article 7B of the Constitution should have been at the back of the mind of the Members

of Parliament before passing of the Sixteenth Amendment and the Sixteenth Amendment

is hit by Article 7B of the Constitution as it has affected the independence of the

Judiciary, one of the basic features of the Constitution.

 Judicial independence encompasses both an individual and institutional dimension and

the individual dimension relates to the independence of a particular Judge, and the

institutional dimension relates to the independence of the Court which he mans and each

of these dimensions depends on the objective conditions or guarantees that ensure the

Judiciary’s freedom from any outside influence or interference and the requisite

guarantees are security of tenure, financial security and administrative independence.

44
 Judicial independence has been recognized as “the lifeblood of constitutionalism in

democratic societies” and the principle of judicial independence requires the Judiciary to

be independent both in fact and perception.

 The institutional independence of the Judiciary reflects a deeper commitment to the

doctrine of separation of powers among the Executive, Legislative and Judicial organs of

the State and although judicial independence had historically developed as a bulwark

against the abuse of the Executive power, it equally applied against other potential

intrusions, including any from the Legislative organ as a result of legislation. In order to

buttress up this submission.

 It is common knowledge that in our country, a vast majority of the legislators have

criminal records; but nevertheless they will be involved in the process of removal of the

Judges of the Supreme Court by dint of the Sixteenth Amendment and this may give rise

to conflict of interests posing a threat to the rule of law.

 A question must be answered as to whether the Sixteenth Amendment has advanced

public interest or defeated it and he believes that the Sixteenth Amendment has defeated

it. Mr. Ajmalul Hossain lastly submits that the Sixteenth Amendment is a colourable

piece of legislation in the facts and circumstances of the case and as such the Sixteenth

Amendment should go.

45
 Chapter: 7
Conclusion

7.1 Recommendation

Above mention discussion is the 16th amendment of constitution regarding the removal of

judges. In my view that the impeachment of judge on the grounds of misconduct or

incapability, is necessary for a good judicial service.

However, it is the duty of judge to settle the dispute and ensure the justice. And the judge

must be free from any political influence to protect the right of the citizen and ensure the

justice .The supreme court is the guardian of the constitution ,its responsibility to protect it.

For ensuring the natural justice the separation of power ,independence of judiciary and rule

of law must be established in the country. But I believe that these three basic structures of

the Bangladesh constitution have been destroyed by the 16th amendment through giving the

power of impeachment to the parliament.

The parliament can not amend the basic structure of the constitution,+ every provision of

the constitution can be amended provided in the result the foundation and the structure of

the constitution remains the same.

I give some recommendation to impeach the judge such as follows:

A method of impeachment is as follows:

1. A permanent body, National Judicial Commission must be set up

2. Whose composition of 5 members is shuffled every 5 years. The composition of the

Commission must be in the manner prescribed: Chief Justice of the Supreme Court, a senior

Supreme Court Judge chosen by the Speaker of the parliament , a Chief Justice of a High

46
Court chosen by the Leader of Opposition and two eminent jurists appointed by the members

of the Bar Association.

3. The working of this body is not to subvert the jurisdiction of the Parliament to initiate

proceedings .it is only a dedicated forum to regulate the disciplining the members of the

Judiciary.

4. The aim of the body among others, including appointment of judges will mainly deal with

looking into allegations of impropriety and misconduct against the members of the Judiciary.

5. The work of the NJC will be to initiate disciplinary proceedings against the said judge and

the powers vested in the body will be to the tune of imposing minor measures such as issuing

advisories, requesting retirement, stopping assignment of judicial work for a limited time,

issuing a warning and censure or admonition which might be in the nature of being public or

private.

6. Their work shall be subject to scrutiny by a Parliamentary Committee formed for the said

7..There is a bar for accountability of judges while at the same time ensuring that their

independence is not infringed .

8. The judges of supreme court must follow the code of conduct

The Supreme Court has reformulated 39-point code of conduct for its judges with a view to

avoiding any misgiving and confusion under article 96 of the constitution.20

(1) A Judge should participate in establishing, maintaining, and enforcing high standards of

conduct, and should personally observe those standards so that the integrity and

independence of the judiciary is preserved. (6) A Judge should dispose of promptly the

20
The judgment of appellate division on 16th amendment regarding code of conduct of judges.

47
business of the court including avoiding inordinate delay in delivering judgments/orders. In

no case a judgment shall be signed later than six months of the date of delivery of judgment.

(2) A Judge should avoid public comment on the merit of a pending or impending Court case.

(3) A Judge shall disqualify himself/herself in a proceeding in which the Judge’s impartiality

might reasonably be questioned.

(4) A Judge shall disqualify himself/herself to hear a matter/cause where he served as lawyer

in the matter in controversy, or with whom the Judge previously practiced during such

association as a lawyer concerning the matter, or the Judge or such lawyer has been a

material witness.

(5) A Judge shall not hear any matter if he/she knows or if he/she is aware or if it is brought

into his/her notice that, individually or as a fiduciary, the Judge or the Judge’s spouse or

children have a financial interest in the subject matter in controversy or is a party to the

proceeding, or any other interest that could be affected substantially.

(6) A Judge requires a degree of detachment and objectivity in judicial dispensation and he is

duty bound by the oath of office.

(7) A Judge should practise a degree of aloofness consistent with the dignity of his office.

(8) A Judge should not engage directly or indirectly in trade or business, either by himself or

in association with any other person.

48
(9) A Judge must at all times be conscious that he is under the public gaze and there should

be no act or omission by him which is unbecoming of his office and the public esteem in

which that office is held.

(10) A Judge should not engage in any political activities, whatsoever in the country and

abroad.

(11) A Judge shall disclose his assets and liabilities, if asked for, by the Chief Justice.

(12) Justice must not only be done but it must also be seen to be done. The behaviour and

conduct of a member of the higher judiciary must reaffirm the people’s faith in the

impartiality of the judiciary. Accordingly, any act of a Judge, whether in official or personal

capacity, which erodes the credibility of this perception has to be avoided.

(13) Close association with individual members of the Bar, particularly those who practice in

the same court, shall be eschewed.

(14) A Judge should not permit any member of his immediate family, such as spouse, son,

daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to

appear before him or even be associated in any manner with a cause to be dealt with by him.

(15) No member of his family, who is a member of the Bar, shall be permitted to use the

residence in which the Judge actually resides or other facilities for professional work.

(16) A Judge shall not enter into public debate or express his views in public on political

matters or on matters that are pending or are likely to arise for judicial determination.

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(17) A Judge is expected to let his judgments speak for themselves. He shall not give

interview to the media.

7.2 Conclusion

There are some issues in constitutional law which cannot be answered in one word, for
example, what would be the meaning of ‘gross misconduct’ under articles 52 and 96. The
concept of ‘Independence of Judiciary’ is one of such issues; one cannot define how much
independence is necessary for ensuring justice. But, the bottom level is certain that there
shouldn’t be assimilation or transgression, instead, there should be check and balance. “The
judiciary was generally seen as the most important of powers, independent and unchecked,
and also was considered dangerous.

If it is accepted that the provision of original Constitution should prevail, the 16th
Amendment is good. But, according to the opinions of Amicus Curies and Judges of the
verdict, it’ll always create political influences on judges disturbing judicial independence and
put a constant fear on them too. Therefore, vesting of such power in the Parliament, as in
India and England, will not be justifiable, because the situations of democracy of Bangladesh
and those countries are different.

It may be argued that the Judiciary, being an organ of the State, is independent and separate
theoretically but not practically. Because, the Judiciary, being subordinate to the President, is
subordinate to the decision of the Prime Minister too, who is also the chief of the ruling
political party.

Respecting the decision of the Supreme Court in 16th amendment case, I must say that the
verdict has been a cherished dream for the persons of legal arena specifically and for the
people generally. However, the verdict has created a doctrinal or theoretical hegemony
regarding the application of original Constitution for ascertaining the Basic Structure. The
intellectuals will further consider that ‘is there any scope to keep the original Constitution
remain applicable?. The most convenient way will be to keep both simultaneously for both of
‘independence’ and ‘check & balance’ are necessary. Therefore, the Parliament and Supreme
Judicial Council can act concurrently in association of each other; and there may be two
enactments for detailed provisions namely ‘The Judges (Appointment) Act, and ‘The Judges
(Inquiry) Act’. Otherwise, this verdict will be a precedent for abrogating any provision of the
original Constitution in future days through exercising political malafide and terming as
‘historical mistake’.

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Bibliography
1. https://www.britannica.com/topic/separation-of-powers
2. Bangladesh Act No XIII of 2014 amended the Constitution of Bangladesh.
3. http://thecommonwealth.org/sites/default/files/press-
release/documents/Compendium%20on%20Judicial%20Appt%20Tenure%20and%20Rem
oval%20in%20the%20Commonwealth.pdf
4. https://ballotpedia.org/Impeachment_of_federal_judges
5. https://constitutionallawreporter.com/article-03-section-01/impeachment-of-federal-judges/
6. https://www.supremecourt.uk/about/judicial-conductand-complaints.html
7. (Scotland Act 1998, s 95 and Judiciary and Courts (Scotland) Act 2008, ss 35–38).
8. (Judicature (Northern Ireland) Act 1978, s 12C).
9. Constitution of India
10. Judgment of high court division regarding 16th amendment
11. Judgement of high court division on 16th amendment
12. https://futrlaw.org/judgment-16th-amendment-case-new-dimension-judicial-interpretation/
13. Juggement of appellant division against the appeal of the judgement of highcourt division
on 16th amendment.
14. The judgment of appellate division on 16th amendment regarding code of conduct of judges.

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