The HC ruling on the 16th amendment

The HC on Thursday declared the 16th constitutional amendment as illegal, unconstitutional and against the principles of the separation of powers between the various organs of the state and the independence of the judiciary. Soon afterwards, however, several ministers and MPs disparaged the verdict, and by extension, we think, the judiciary itself, going so far as to describe it as a "conspiracy against democracy and sovereign parliament."

The last thing we want is a confrontational relationship between the judiciary and the parliament. While it is not unusual for a parliament and a judiciary to disagree from time to time, whether in Bangladesh or in any other part of the world, what is harmful and undesirable is a relationship of antagonism, such as that exposed by the utterances of the parliamentarians.    

We had wondered why the parliament felt compelled to make such an amendment to begin with, given that the legislature and the executive branches could already exert considerable influence over the judiciary, including appoint HC judges. The amendment raises concerns about whether or not the parliament wishes to have undue and crucial influence over the judiciary, violating one of the fundamental principles of the Constitution – that of an independent judiciary.  It is imperative that, in a democracy, there is a balance of power between the different organs of the state thereby ensuring 'check and balance' between them.

We feel that the points raised by the HC have a lot of merit, particularly the criticism of Article 70 of the Constitution which is a major constraint to MPs performing functions independently in the parliament. The fact that the parliament can impeach judges with a two-thirds majority, on one hand, makes the judiciary subservient to the parliament, and on the other, means that the latter cannot take any action against a judge even if it has sufficient evidence to do so without a two-thirds majority. Seen from both angles, we believe that the process of impeachment of judges through the supreme judicial council should be seriously reconsidered by the Parliament. 

Rather than to see this HC ruling as an affront against the parliament we urge our law makers to ensure that we uphold the true spirit of the Constitution, which enshrines the principles of separation of powers and judicial independence.