CRITICS OF SIXTEENTH AMENDMENT UNDER

THE CONSTITUTION OF THE PEOPLES REBULIC

OF BANGLADESH

 General Discussion on Sixteenth Amendment of the Constitution of Bangladesh

Before proceeding to the discussion of various points of Sixteenth amendment of the

Constitution of the People’s Republic of Bangladesh, at first we need to see the relevant
provision from Sixteenth amendment which talks about impeachment of Justices of Supreme
Court. According to Article 96 of the existing Constitution of Bangladesh,

 Subject to the other provisions of this article, a Judge shall hold office until he attains the
age of sixty-seven years1.
 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
incapacity2.
 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 Judge3.
 A Judge may resign his office by writing under his hand addressed to the President4.

There was a provision in the Article 96 of the 1972 constitution regarding impeachment of
Supreme Court judges through the Presidential order by having two-thirds majority in parliament
for proved misconduct and incapacity. Later, during the presidential form of government, a new
provision was incorporated in the constitution which stipulates that any judge of the Supreme

1
Article 96(1), The Constitution of the People’s Republic of Bangladesh
2
Article 96(2), Ibid
3
Article 96 (3), Ibid
4
Article 96 (4), Ibid

Rizvi Hasan Porosh, LLB, LLM (2016), Research Published by Department of Law, Northern University
Bangladesh
Court may be impeached through a Presidential order5. According to the aforesaid provision, no
judge can be removed before giving him or her scope of replying show cause notices mentioning
actions against them on the ground of misconduct and incompetence.

But, in 1977 and 1978, a provision was incorporated in the constitution giving the authority of
impeachment of Supreme Court judges on the grounds of misconduct and incapacity to the
President following recommendations of the Supreme Judicial Council formed by the Chief
Justice and two other senior judges of the Supreme Court. The provision was against the basic
principle of the constitution and democratic spirit as well, the objective says.

In most of the democratic countries in the world, the principle of accountability of the judges of
the superior court, like other organs of the state, lies with the parliament consisting of the elected
representatives of the people.

Now in the light of various methods of Interpretation this amended article will be analyzed.

 Under its Literal meaning

If we give a very specific consideration over the previous mentioned Article of the Constitution,
under the literal meaning, it actually shows that,

a) members of the parliament can initiate the proceeding of impeachment of Judges

b) The resolution for the impeachment of Judges requires two third majority of the total
number of the members in parliament6. Hence, in no way two third majorities can be
found if the session of parliament doesn’t get the presence of all of its members.
c) by perusing the provisions of Clause 2 of Article 96, it seems that whatever may be
passed by MPs in the session under the said reference; the ultimate decision stays over
the hand of the Head of the Executive or more specifically to the President. Moreover,
the provision does not expressly says anything repugnant on this regard; that what will be
the situation if in anyway resolution is not passed by the President within a fixed period.

5
Md. Abdul Halim, Constitution, Constitutional Law and Practices: Bangladesh Perspective, 3rd Edition, CCB
Foundation, 2014
6
Article 96(2), The Constitution of the People’s Republic of Bangladesh

Rizvi Hasan Porosh, LLB, LLM (2016), Research Published by Department of Law, Northern University
Bangladesh
 d) It gives an option for the parliament to create law in relation to the resolution and
procedure of investigation for the cases relating to Impeachment of Judges7. No direct
Law has been prescribed on this regard.
e) It also avails the provision of self-resignation by Judges. Although impeachment and
removal these two words are not exactly the same issues under legal field but the
provisions of the Constitution actually holds both criteria’s in one Article.

5.1.2 In Harmonious Approach

If interpret the previous mention Article under Harmonious Construction then following points
can be found:

a) Although the President of Bangladesh have two distinct Powers namely; appointment of
Chief Justice8 and appointment of Prime Minister9 under the provisions of the Supreme
Law; after Sixteenth amendment Article 96 also avails another power for President while
passing the order in pursuant to the resolution by the members of parliament for the
purpose of impeachment of Judges. Specifically which does not say anything about the
consultation with Prime Minister on this regard
b) The amendment cannot be called in question to unconstitutionality as its upholds the
dignity of independent judiciary under the meaning of the following provision:
“The State shall ensure the separation of the judiciary from the executive organs of the
State10”

if in anyway the provisions of Article 96 would have stated that impeachment will be made by
the executive of Bangladesh then definitely it would be the violation of Article 22 of the
Supreme Law of Bangladesh. While the power of impeachment has been vested to the
parliament by the sixteenth amendment, it actually serves the purpose of Article 22 of the
Constitution, which in reality demands a separate judicial system from the executive and not
from the legislature.

7
Article 96(3), Ibid
8
Article 95, Ibid
9
Article 56(3), Ibid
10
Article 22, The Constitution of the People’s Republic of Bangladesh

Rizvi Hasan Porosh, LLB, LLM (2016), Research Published by Department of Law, Northern University
Bangladesh
  Drawbacks of Sixteenth Amendment

A constitutional amendment refers to the modification of the constitution of a nation or state. In

many jurisdictions the text of the constitution itself is altered; in others the text is not changed,
but the amendments change its effect. The method of modification is typically written into the
constitution itself. All of the world's active national constitutions mention amendment
procedures11. Most of the Constitutions are made with a view to provide certain benefits to state
or more specifically to clear ambiguities. But sometimes amendment with no future observations
creates ambiguities and hassles for the state. Sixteenth amendment also provides certain
drawbacks in this regard which may be an obstacle in relation to an Independent Judicial system
of Bangladesh. Some the drawbacks are enumerated below:

i. For that the primary objective of the 16th Amendment Act 2014 is to destroy the
principle of Independence of Judiciary and to make the Judiciary ineffective to safeguard
the Constitution; the principle of Independence of Judiciary as one of the basic features of
the Constitution enshrined, particularly, from Article 22, Article 94(4), Article 116A of
the Constitution as expounded in the Case of AnwarHussainChowdhury V Bangladesh
(popularly known as the 8th Amendment Case)12, reiterated and reaffirmed in
MasdarHossain’s Case13 is compromised by the 16th Amendment Act 2014 giving
overwhelming authority to the executive through Parliament to impeach the Supreme
Court Judges which is a vicious blow on the Judiciary and a blatant interference that
violently torn down the very fabric of the Constitution and demolished its structural
integrity.

ii. Although Article 96 after the sixteenth amendment empowers the parliament to impeach
Judges of Higher Courts still technically the issue is handled by the executives of
Bangladesh. Because most of the ministers who are part of executive of Bangladesh, they
also represent themselves as the members of parliament. In a clear word practically it can
said that, there is no difference between persons belonging to executives and legislature
in Bangladesh. Therefore, ultimately executive has gained the control over judiciary in

11
Mahamudul Islam, Constitutional Law of Bangladesh, 2nd edition, Mollick brothers, 2003, pg- 146
12
Anwar HussainChowdhury V Bangladesh [1989 BLD (SPL) 1]
13
MasdarHossain’s Case [52 DLR (2000) 82]

Rizvi Hasan Porosh, LLB, LLM (2016), Research Published by Department of Law, Northern University
Bangladesh
 relation to impeachment by the sixteenth amendment. Which prima facie seems to be
violating Article 22 of the Constitution of the People’s Republic of Bangladesh
iii. Nevertheless the Article 96 of the Constitution of Bangladesh, gives the power to the
President to pass order for the ultimate decision of impeachment but still the question
lies, what should be the consequence if the President doesn’t give assent to the resolution
of parliament; or how much value does President bears in relation to the passing of the
process of impeachment. These question are arising due to similar situation as described
in law making process under the provisions of the constitution where even if, President
doesn’t gives his consent; after a certain time law will be automatically passed. Though
Article 96 doesn’t say anything like that but question remains in assumption
iv. Moreover although the President has the sole power to make decision in relation to the
impeachment of Judges still, because of the power given to the MPs under Article 52 of
the Constitution of Bangladesh it seems a little difficult President to make any
descending opinion against MPs resolution.
v. 16th Amendment Act 2014, seems ultra vires to the Constitution as it is in direct conflict
and contradictory to spirit of the preamble of the Constitution in as much as our
constitutional pledge, as stated in the preamble, inter alia, that democracy and socialism
meaning economic and social justice shall be fundamental principles of the Constitution;
further pledge that it shall be a fundamental aim of the State to realise through the
democratic process to socialist society, free from exploitation- a society in which the rule
of law, fundamental human rights and freedom, equality and justice, political, economic
and social, will be secured for all citizens; moreover the affirmation in the preamble that
it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its
supremacy as the embodiment of the will of the people of Bangladesh are being
restricted, hampered due to the 16th Amendment Act 2014 by weakening the Judiciary,
the most important and the conscience keeper of the State.
vi. Again, 16th Amendment Act 2014 seems ultra vires to the Constitution as it is in
violation 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 by way of other means as much as since the separation of judiciary as well as
the independence of judiciary are the most fundamental cornerstone of the basic structure

Rizvi Hasan Porosh, LLB, LLM (2016), Research Published by Department of Law, Northern University
Bangladesh
 of the Constitution, enactment of 16th Amendment Act 2014 literally destroyed them
which cannot be done under Article 7B of the Constitution.

 Advantages of Sixteenth Amendment

Even though there are many points by which Sixteenth Amendment of the Constitution of
Bangladesh can be called in question with regard to its validity, eventually there are some
advantageous points of this amendment. These are given underneath:

 The power to remove a Judge of the Supreme Court on the ground of his misbehavior or
incapacity was previously conferred to the Supreme Judicial Council instead of the
Parliament substituting Article 96 of the Constitution enacted in 1972, by the military ruler
through unconstitutional means of Martial law namely the Second Proclamation Fifteenth
Amendment) order, 1978. The said martial proclamation is against the spirit of Article 7 of
the Constitution. Hence via Sixteenth Amendment such spirit has been reinstituted.
 In most of the democratic countries in the world, the principle of accountability of judges of
the Superior Court, like other organs of the state, lies in the parliament consisting of elected
representatives of the people. Hence the process also falls under domain of democracy
 Moreover the previous mentioned issue also reflects the theory of separation of power with
checks and balances. And it’s not violative to the spirit of Article 22 or more specifically
Independence of Judiciary as it separates or does not imposes the authority to impeach the
judge by any member of executive but to the MPs whom are elected by the votes of Republic
whom bear all the power under the meaning of the Supreme Law.14
 Additionally this amendment was expedient and necessary for the revival of Article 96 of the
Constitution enacted in 1972.15

14
Article 7, the Constitution of the People’s Republic of Bangladesh
15
Preamble, The Constitution (Sixteenth Amendment) Act, 2014

Rizvi Hasan Porosh, LLB, LLM (2016), Research Published by Department of Law, Northern University
Bangladesh