Resignation of Chief Justice and Vulnerable Judicial Independence -By Sohrab Hussain
Since the independence of Bangladesh in 1971, no state organ except Judiciary has fallen in such existential crisis in terms of its independence. Surendra Kumar Sinha, whon was the first chief justice among twenty one judges, after a long-time drama, was obliged indirectly to resign from his office. This indirect interference of the government as to the judiciary broke down the long practiced legacy of the judiciary.
The conflict between two organs was revealed when an honorable High Court judge criticized in response to the comment of Abdul Hamid, the ex-speaker of National Parliament in relation to the expansion of street nearby the Supreme Court.
Forthwith, many members of the parliament criticized such courage of the judge claiming the immunity of the parliament from any legal action and demanded the restoration of impeachment power of the judges in the hand of the parliament. Before that, the cold conflict between two organs had been continued for many decades.
The constitution of Bangladesh secures the independence of judiciary under article 22 though practically it depends on the will of the parliaments. The reluctance of the previous governments as to the independence of the Judiciary from the executive and parliament increased the tension between two organs.
At last, in landmark Masdar Hossain case, court drew attention of the parliament regarding their responsibility to separate the judiciary as an independent organ to ensure the rule of law and accountability and uphold the supremacy of the constitution.
The Appellate Division formulated twelve directives to ensure the separation of judiciary which were binding upon government under article 102 and 112. Then BNP-led coalition government sought the extension of the time for twenty six times for implementation and eventually left the parliament without implementing the promised and binding responsibility.
Now, government is delaying to make the code of conduct for lower court judges despite the dissatisfaction of the Supreme Court. In the meantime, the willingness of the parliament to restore the parliament power to impeach the judges instead of the Supreme Judicial Council in order to control the whole judicial system brought the 16th Amendment Bill. In response to the writ petition challenging the 16th amendment, the Supreme Court declared such amendment as invalid in the same way how it declared the 5th and 7th amendment as void.
Bangladesh parliament is formulated under the constitution, the supreme law of the Republic and no organ has discretion to make the laws inconsistent with the constitution. The parliament itself is not a sovereign law making authority since it is under obligation to makes the laws within the ambit of the constitution. So any law made beyond the mandate of the constitution may be challenged by aggrieved person under article 102 of the constitution.
Following such jurisdiction, Supreme Court of Bangladesh entertained the writ petition named Sukor Ali case, where court affirmed that mandatory death penalty having no exception enshrined in section 11 (a) of the Nari o Shisu Nirjaton Daman Ain 2000, or section 303 of The Penal Code, or section 6 (2) of Nari-o-Shishu Nirjatan Ain, 1995 are inconsistent with the merit of article 31 and 32 (right to life and liberty) of the constitution of Bangladesh.
Thus, Supreme Court of Bangladesh declared 16th amendment as invalid since it goes beyond the mandate of the constitution of the republic. After such declaration and comments given by the court, government reacted forthwith and took the heinous decision of the history of Bangladesh. Even Prime Minister Shiekh Hasina openly criticized the Supreme Court which helped fuel in this conflict.
Therefore, they stared to execute their decision by illegal means. They met with Chief Justice for several times to pressurize him following the no protocol. Then government met with attorney general and president to make the way how they can cancel the court’s decision.
As a part of their conspiracy, they pressurized the Chief Justice to leave the office gradually. Being obliged, Chief Justice took the leave for 1 month and left Bangladesh and then, resignation letter sent by Chief Justice after one month dated 11/11/2017 proved what had gone during one month. No doubt, this was an irreparable wrong of the Awami League government for which they would have to cost big price in future.
The present government has shown the way how to interfere and lame an independent organ of the state, which is the last resort of hope of justice for poor and deprived people. Journalist Motiur Rahman, former editor-in-chief of Amardesh, said in a seminar that Bangladesh has no sovereignty since no state organ is functioning independently for the interference of neighbor friendly (so called) state.
After such unexpected occurrence, what would happen if Supreme Court cancel this decision and declare such amendment as consistent with the mandate of the constitution of the Republic of Bangladesh? Possibly, the judiciary will be a pocket organ of the government and they will interfere openly in all cases of the court.
So the independence of the judiciary is offing! And it, as a government institution, is at the brink of the big hole. The exercise of unfettered power by the government made intolerant to any criticism even if it is done by the Judiciary. In other words, if a government does come to power without the mandate of its own citizens it always feels fear regarding the possibility of losing the power for which government fears any criticism goes against the interest of government.
The preponderance of the decision will be reduced in future and mistrust on the government and judiciary will increase rapidly in future. While the world is forwarding to the independence of the judiciary to ensure rule of law and justice in the society, Bangladesh is going towards dependence and interference of the government in the internal affairs of the judiciary.
The way out of this crisis is far since two organs are confronting each other and in this case, a good government having willingness to ensure justice can end such conflict by ensuring independence of the judiciary.