The 16th amendment and it’s validity:
In 2014 parliament passed the constitution act by which the parliament re-introduced the power of impeachment of judges of the supreme court of Bangladesh .The original constitution of 1972 introduced the impeachment power by parliament in article 96 . The impeachment power by parliament was repealed within 3 years by the 4th amendment to the constitution and it’s place provision was made so that the president could remove a judge by his order .Subsequently while martial law was in motion , then president Ziaur Rahman amended article 96 and introduced the provision supreme judicial council for removal of judges is in accordance with the recommendation adopted by the international lawyers convention held in 1959 in new Delhi.
The impact of the amendment on independence of judiciary in Bangladesh:
First although the process of impeachment by parliament is recognized an practiced in most democratic countries of the world. There are democratic cultures traditions safe guards on independence of judiciary and elements of free and fair el;ections are also there to make sure that parliament must not abuse its power impeachment against judge of the supreme court . However in Bangladesh ,these protective save gaurd and elements are absent and as such there is scope of abuse of the power of impeachment by parliament.
Second, at the awami league government through its questionable bruti majority amended the constitution with major and overhauling changes in the 15th amendmend but it didn’t bring back the original provisions. In articles 95,96 and 116 of the constitution regarding independence of judiciary however ,when a high court bench raised the issue of impartiality of the speaker in parliament advocate Abdul Hamid,it is only than the parliament became furious in criticizing the concern judge.
Third, there is another ill –motivated reason for introducing the 16th amendment to the constitution. Apart from criticizing the speaker in his partial role in parliament by a bench, another bench of the high court division directed the government to arrest some RAB officials involved in 7 murder case in Narayangonj.
Fourthly, although article 96 has been entered to its original provision on enabling law like the judge inquiries act has been enacted . As much it remains unclear how judge will be removed though impeachment procedure on the grounds of misconducted or incapacity .
Fifthly , 46 years have passed since the independence of the country but unfortunately no parliament has made any law under article 92(2) (c) (a) of the constitution foe appointment of judge compared to this long over due legislative imperatives of parliament . Its unfortunate to see that parliament have become very jealous and over active in question of removal of judge on the ground of misconduct or incapacity.