The Independence of the Judiciary in Bangladesh : Exploring the Gap Between Theory and Practice

This book highlights that an independent judiciary is indispensable for the very existence of any society based on democratic values, such as the observance of the rule of law and respect for the human rights of individuals. In order to ensure that the judiciary’s interpretation of the law is not bound by the will of the executive and that it is able to call the executive to account by protecting the life as well as liberty of the governed, it is imperative to guarantee, among other things, a transparent method of appointment and the security of tenure of the judges. Taking into account the importance of an independent judiciary in a democratic society, the framers of the Constitution of Bangladesh, 1972, following in the footsteps of the framers of the Constitutions of India and Pakistan, incorporated in the Constitution the ideal of safeguarding the independence of the judiciary as one of its basic features. This book, however, makes it manifestly evident that the key elements for realising such an ideal have not adequately been guaranteed by the Constitution. Consequently, this book sheds light on how succeeding generations of executives have sought to undermine the independence of the judiciary. Accordingly, this book puts forward recommendations for the insertion of detailed norms in the Constitution of Bangladesh for establishing the best means for excluding patronage appointments to the bench and for guaranteeing the security of tenure of the judges. This book asserts that the incorporation of such norms, safeguards the independence of the superior judiciary to decide cases without fear or favour. This book, therefore, seeks to address the gap that exists between the theory and practice concerning the independence of the judiciary in Bangladesh. Since no book is currently available in the market that critically examines these issues in a systematic and structured manner, this research enhances knowledge by not only identifying the flaws, deficiencies and lacunae of the constitutional provisions concerning the method of appointment of the judges of the Supreme Court of Bangladesh but also the measures undertaken by the current Bangladeshi regime to dispense with the transparent method of removal of the judges involving a body of judicial character. Preface Acknowledgements About This Book Contents About the Author Chapter 1: Introduction 1.1 Introduction 1.2 The Standards Concerning the Independence of the Judiciary and Their Recognition in Domestic Constitutions 1.3 The Constitution of Bangladesh and the Guarantee of Judicial Independence 1.3.1 The Constitution of Bangladesh and the Method of Appointment of Judges of the SC 1.3.2 The Constitution of Bangladesh and the Method of Removal of Judges of the SC 1.4 Objectives of the Book 1.5 Structure of the Book References Chapter 2: The Principle of Judicial Independence and Its Recognition in the Constitution of Bangladesh, 1972 2.1 Introduction 2.2 The Importance of an Independent and Impartial Judiciary in a Democratic State 2.3 Traditional and New Conceptual Dimensions (Four Meanings) of Judicial Independence 2.3.1 Four Meanings of Judicial Independence 2.4 The Importance of the Method of Appointment and the Security of Tenure of the Judges as Constituent Elements of Judicial Independence 2.4.1 The Importance of a Transparent Method of Appointment of the Judges 2.4.2 The Importance of a Transparent Method of Removal of Judges 2.5 Case Study: The Independence of the Judiciary in Pakistan 2.6 The Principle of Judicial Independence as Enshrined in the Constitution of Bangladesh, 1972 References Chapter 3: The Method of Appointment of the Judges of the Supreme Court Under the Constitution of Bangladesh, 1972 3.1 Introduction 3.2 The Appointment of the Chief Justice of Bangladesh 3.3 The Provisions of the Constitution of Bangladesh, 1972, Concerning the Appointment of Judges of the AD of the SC of Bangladesh 3.4 The Constitutional Provisions Concerning the Appointment of the Judges of the HCD of the SC 3.5 Dispensation of the Constitutional Requirement of “Consultation with Chief Justice” in the Appointment of Judges of the SC 3.5.1 Deletion of the Constitutional Requirement of Consultation with the Chief Justice by the Constitution (Fourth Amendment) Act, 1975 3.5.2 Restoration of the Constitutional Requirement of Consultation with the Chief Justice and Deletion of this Requirement Again by the First Martial Law Regime (1975–1979) 3.5.3 The Method of Appointment of Judges Under the Second Martial Law Regime (1982–1986) 3.5.4 Breach of the Convention of Consulting the Chief Justice in 1994 in Appointing the Judges of the SC 3.5.5 Judicial Interpretation of the Requirement of “Consultation with the Chief Justice” in Bangladesh 3.6 Restoration of the Requirement of “Consultation with the Chief Justice” in the Constitution of Bangladesh in July 2011 3.7 The Establishment of the Supreme Judicial Commission in Bangladesh to Recommend Candidates for Appointment as Judges to the SC 3.7.1 Composition of the Supreme Judicial Commission 3.7.2 Selection Process 3.7.3 Functions and Selection Criteria 3.7.4 Selection Meeting of the Commission 3.7.5 Consideration of Report by the President 3.8 Validity of the Supreme Judicial Commission Ordinance References Chapter 4: The Intrusion of Extraneous Considerations in the Appointment of the Chief Justice and the Other Judges of the Supreme Court of Bangladesh 4.1 Introduction 4.2 Contravention of the Convention of Seniority in Appointing the Chief Justice of Bangladesh 4.2.1 Supersession during the Regime of the BNP-Jamaat Alliance (2001–2006) 4.2.2 Supersession during the Non-Party “Care-Taker” Government (2007–2008) 4.2.3 Supersession during the Present BAL Government (2009- to Date) 4.3 The Violation of the Convention of Seniority in Appointing the Judges of the AD 4.3.1 Contravention of the Principle of Seniority in Appointing Judges of the AD during Martial Law and Autocratic Regimes 4.3.1.1 Contravention of the Principle of Seniority in Appointing Judges of the AD by the First Martial Law Regime (August 1975–April 1979) 4.3.1.2 Violation of the Principle of Seniority in Elevating Judges to the AD by the Second Martial Law Regime (March 1982–November 1986) 4.3.1.3 Breach of the Principle of Seniority in Appointing Judges of the AD by the Civilian Regime of HM Ershad (1986–1990) 4.3.2 Breach of the Violation of the Principle of Seniority in Appointing the Judges of the AD following the Return to Parliamentary Democracy 4.3.2.1 Violation of the Principle of Seniority in Elevating Judges to the AD during the BNP Regime (1991–1996) 4.3.2.2 Violation of the Convention of Seniority in Appointing Judges to the AD during the Regime of the BAL (1996–2001) 4.3.2.3 Contravention of the Convention of Seniority in Appointing Judges of the AD during the BNP Regime (2001–2006) 4.3.2.4 Contravention of the Convention of Seniority in Appointing Judges of the AD during the Present BAL Regime (January 2009- to Date) 4.4 The Appointment of the Judges of the HCD References Chapter 5: The Guarantee of Security of Tenure of the Judges of the Supreme Court under the Constitution of Bangladesh, 1972 5.1 Introduction 5.2 The Original Provisions of the Constitution of Bangladesh, 1972, Concerning the Retirement Age and the Method of Removal of the Judges of the Superior Courts 5.3 The Changes Introduced to the Security of Tenure of the Judges of the SC of Bangladesh by the Constitution (Fourth Amendment) Act, 1975 5.4 The Changes Introduced to the Security of Tenure of the Judges by the Martial Law Regime of 1975 5.5 The Changes Introduced to the Security of Tenure of the Judges by the Martial Law Regime of HM Ershad (1982–1986) 5.6 The Changes Introduced to the Retirement Age of the Judges by the BNP Government (2001–2006) References Chapter 6: The Functioning of the Supreme Judicial Council, the Changes Introduced to the Method of Removal of Judges of the Supreme Court of Bangladesh in 2014 and the Subsequent Scathing Attack on the Judiciary 6.1 Introduction 6.2 The Functioning of the Supreme Judicial Council 6.3 The Omission of the Constitutional Provisions Concerning the SJC by the Constitution (Sixteenth Amendment) Act, 2014 6.4 The SC’s Invalidation of the Sixteenth Amendment and the Consequent Attack on the Chief Justice 6.5 The Impact of Justice Sinha’s Resignation on the Independence of the Judiciary References Chapter 7: Conclusion 7.1 Introduction 7.2 The Constituent Elements of Judicial Independence 7.2.1 The Importance of a Transparent Method of Appointment 7.2.2 The Importance of Security of Tenure 7.3 The Constitution of Bangladesh and the Principle of Judicial Independence 7.4 Does the Constitution of Bangladesh Guarantee a Transparent Method of Appointment of Judges of the Superior Judiciary? 7.4.1 The Appointment of the Chief Justice 7.4.2 The Appointment of the Judges of the AD 7.4.3 The Appointment of the Judges of the HCD 7.4.4 The Fate of the Supreme Judicial Council, 2008 7.5 Does the Constitution Adequately Safeguard the Security of Tenure of the Judges of the SC? 7.6 Recommendations: Incorporation of Effective Safeguards in the Constitution of Bangladesh, 1972 for Guaranteeing the Independence of the Judiciary References Table of Cases Domestic Court Judgements Bibliography List of National Constitutions and Constitutional Amendments Statutes/Rules/Treaties/Conventions/General Comments/Principles Websites/Internet Materials