Bangladesh Chief Justice determined to ‘restore democracy’

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LOOKEAST EXCLUSIVE

Bangladesh chief justice Surendra Kumar Sinha has told friends and admirers in Tokyo that he is determined to ‘restore democracy’ in Bangladesh — something that has send a chill down the spine of those in power in Dhaka.

At a party hosted by Bangladeshi expatriates on Saturday, Justice Sinha said there were ‘many severe lacunae in Bangladesh’s practice of democracy’ and he was determined to effect course correction.

The ruling Awami League is especially nervous and uncertain about the Chief Justice after the Supreme Court on 2nd July unanimously declared the 16th Amendment to the constitution illegal, which means parliament no longer has the power to impeach judges of the apex court.

Chief Justice aspires to become the next President of the country with military support. He is in touch with several generals, both retired and serving

Bangladesh intelligence has received reports that a group of top lawyers are going to move the Supreme Court to declare election of 154 MPs, elected uncontested in 2014 polls, as illegal.

“That can lead to dissolution of the parliament and the army may step in,” one official said, adding that the Chief Justice aspires to become the next President of the country with military support.

“He is in touch with several generals, both retired and serving,” the official told LOOKEAST on condition of anonymity.

The Awami League government is especially worried after the seven-member bench of the Appellate Division, led by Chief Justice Surendra Kumar Sinha, upheld a High Court judgement that had scrapped the amendment, rejecting an appeal filed by the state.

“From now on, the Supreme Judicial Council will deal with the impeachment matters, not parliament,” Manzill Murshid, one of the petitioners against the amendment, told reporters after the verdict.

The chief justice said the court had some observations based on which it had rejected the appeal.

The court also said it would expunge some observations made by the High Court regarding the petition.

Attorney General Mahbubey Alam expressed frustration over the Supreme Court’s verdict, saying the Supreme Judicial Council had been scrapped by parliament and could not be restored automatically.

Bangladesh intelligence has received reports that a group of top lawyers are going to move the Supreme Court to declare election of 154 MPs, elected uncontested in 2014 polls, as illegal

Claiming a vacuum has now been created, he said: “We will have a discussion with the Ministry of Law, Justice and Parliamentary Affairs to see if a review plea can be filed.”

He further said he was disappointed that the original constitution (1972), which allowed parliament to impeach Supreme Court judges, was not restored.

The 16th Amendment was passed by parliament on September 17, 2014, empowering the members of parliament (MPs) to impeach the top court judges for incapability or misconduct via two-thirds majority.

The amendment triggered debate on whether parliament should have such authority, and 9 Supreme Court lawyers filed a writ petition with the High Court on November 5 the same year challenging the legality of the constitutional change.

The High Court declared the amendment illegal on May 5, 2016. The government moved the Appellate Division against the High Court verdict on January 4, 2017.

On February 8, the Supreme Court appointed 12 senior lawyers as amici curiae, seeking their opinions over the legality of the 16th Amendment.

Hearing on the appeal began on May 8 and continued till June 1. During the hearing, nine of the amici curiae opined against the 16th Amendment, one in favour, while two refrained from giving an opinion.

During the hearing, the government counsel argued that the Martial Law authorities had inserted the Supreme Judicial Council concept when they were in power illegally, and the 16th Amendment was introduced to go back to the original constitution.

He said the amendment did not harm the original structure of the constitution.

former minister Kamal Hossain appearing as amicus curiae (friend of the court) in connection with a writ petition challenging the validity of the section 19 of the Representation of the People Order (RPO) had opposed the validity of the election of 154 MPs elected without contest in 2014 polls

In response, the writ petitioners’ counsel said the provision in the 1972 constitution, which empowered lawmakers to impeach judges, was scrapped through the Fourth Amendment in 1975 as the provision proved to cause more harm than good.

They further argued that ruling party lawmakers cannot vote against their party’s decisions due to Article 70 of the constitution, even if they disagree with the said decisions. Same could happen in case of the impeachment of a Supreme Court judge, they added.

The Fourth Amendment, passed in 1975, vested the power of impeaching Supreme Court judges in the president. The Fifth Amendment, brought on during the regime of military strongman Ziaur Rahman, made way for the formation of Supreme Judicial Council to impeach judges.

This amendment was declared illegal by the court later.

After scrapping the 16th amendment, the Supreme Court is now likely to take up a writ petition, hearings for which has been conducted over the last three years.

Noted jurist and former minister Kamal Hossain appearing as amicus curiae (friend of the court) in connection with a writ petition challenging the validity of the section 19 of the Representation of the People Order (RPO) had opposed the validity of the election of 154 MPs elected without contest in 2014 polls.

Terming unprecedented the 154 MP candidates’ election unopposed, Kamal, one of the framers of the constitution, submitted that the principle of the constitution was democracy, and all powers in the Republic belong to the people. “So, according to the constitution, the elected representatives will exercise their power on behalf of people,” he contended.

“Can we call those elected unopposed public representatives?” Chief Justice questioned.

The concern in the Awami League is that the Chief Justice and his bench may rule in favour of the petitioners and strike down the validity of the election of these 154 MPs.

If that happens, the parliament will be threatened by imminent dissolution and the present government will clearly be on oxygen.

Coming as it does after the reported failed assassination bid on Prime Minister Sheikh Hasina, which was reported by , this is seen as a huge challenge by the Awami League.

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