Bangladesh judiciary-executive verbal duel deepens

Bangladesh judiciary-executive verbal duel deepens

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Dhaka – Chief Justice Surendra Kumar Sinha on Tuesday observed that the state is trying to tighten its grip on the apex court after keeping the lower courts under its strong control.
“You’ve taken the lower courts under your clutch and now you’re trying to take the Supreme Court, too,” the Chief Justice told Bangladesh’s Attorney General Mahbubey Alam.He made the remarks as he heard arguments of the state in an appeal filed against a High Court (HC) order that declared illegal the Constitution 16th Amendment that has established Parliament’s authority to remove Supreme Court judges.
The Chief Justice said the lower courts cannot be run under the authority of the Supreme Court. “As a result, we can’t appoint judges in many cases. Even in some cases, the Law Ministry is not taking proper steps even when the Supreme Court asks for taking actions against lower court judges based on allegations,” he said.
About law minister’s comment that the judiciary is independent and the salaries of the judges have been hiked, SK Sinha asked, “Has the judiciary become independent with an increase of the salary scale?”
The Attorney General said the independence of the judiciary will not be hampered through the implementation of the 16th Amendment to the Constitution.
He also said the amendment was brought to return to the spirit of the original Constitution of 1972 and empower people through MPs to impeach the judges. “As per the Constitution, people are the owner of absolute power and the MPs represent them in Parliament. That doesn’t mean that the SC judges will be impeached after the MPs raise their hands. There’re legal proceedings,” the state chief officer added.
At one stage, the Chief Justice said, “Why did the government keep article 70 in the Constitution?”
In reply, Mahbubey Alam said the article was included in the national charter to avoid ‘Horse Trading’.
Later, SK Sinha said the MPs cannot perform their duties independently. “As a result, you can’t have trust in your party’s MPs.”
Mentioning that the socio-economic structure of the country has changed a lot, he said the thoughts and sprit of 2017 will differ from that of 1972. “Changes should be brought to the Constitution with the changes in the society,” he added.
The Attorney General also raised the question over the jurisdiction of the SC lawyers to file writ petitions.
In reply, the Chief Justice said SC lawyers are the conscious citizens of the country. They have the right to file writs. “You (Attorney General) say that SC lawyers don’t have any right to file writ petition. So, will I myself file writ?” he said.
Mentioning one of the HC judges’ comment that MPs have criminal records, the Attorney General said if his statement is not true, a complaint should be lodged to the President to remove him.
The seven-member bench of the Appellate Division started the hearing on Monday.
On September 17, 2014, the Jatiya Sangsad passed the ‘Constitution (16th Amendment) Bill, 2014′ without any opposition, empowering Parliament to impeach judges of the Supreme Court for their ‘incapacity’ or ‘misconduct’.
Nine Supreme Court lawyers filed a writ petition with the High Court on November 5, 2014, questioning the validity of the amendment.
On May 5 last year, the HC declared the 16th Amendment to the Constitution illegal. The government on January 4 last filed an appeal challenging the HC decision.
The Constitution drafted in 1972 had given the MPs the power to impeach judges and decide their term in office. After the Fourth Amendment in 1975, the power was vested in the President. The power of removal of judges was vested under the Fifth Amendment in a ‘Supreme Judicial Council’ comprising senior judges of the Supreme Court.
This provision was changed following a tussle between the two organs of the state during the immediate past term of the government as a judge of the SC termed remarks made by the then Speaker as violation of the constitution while the Speaker in a detailed ruling termed the judge’s remarks as amounting to such violation. The matter referred to the Chief Jusice was resolved by the Supreme Court upholding the court’s jurisdiction.

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