16 amendment of Bangladesh. Full Slide-Share

1. “16 amendment of Bangladesh”
SADMAN MAHFUZ

2. What is the 16th amendment?
• The 16th amendment to the constitution — passed on September 17,
2014— empowered parliament to remove judges of the Supreme Court
for their incompetence or misconduct based on a two-thirds majority.
• Ministers said the amendment harked back to the first constitution,
drawn up in 1972, which bestowed on members of parliament the right
to impeach judges.
• That power was transferred to the president following the fourth
amendment to the constitution in 1975. Later, the fifth-amendment,
brought in during military ruler Ziaur Rahman’s regime, legalized the
formation of a Supreme Judicial Council (SJC) to impeach judges.

3. General Discussion on Sixteenth Amendment of
the Constitution of Bangladesh
Subject to the other provisions of this article, a Judge shall hold office
until he attains the age of sixty-seven years.
• 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 incapacity.
• 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 Judge.
• A Judge may resign his office by writing under his hand addressed to
the President.

4. Under its Literal meaning
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 parliament.
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.
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 Judges. 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. Why it was declared illegal
• In light of the State vs Masdar Hossain case verdict, the judiciary was
separated from the executive and legislative organson November 1,
2007.
• The Supreme Court scrapped the 16th amendment on the ground that
it undermined the independence of the judiciary. Nullifying
parliament’s power to remove judges, the apex court reinstated the
Supreme Judicial Council for the removal of errant judges.
• “Neither individual judges nor the judiciary should be accountable to
the executive,” according to the verdict

6. Who will remove judges now?
• In its ruling, the apex court said the power of impeachment
was now automatically transferred to the Supreme Judicial
Council since the 16th amendment was void. The SJC was a
much more transparent process, the seven-member bench
said in its verdict. Disagreeing with the court, Law Minister
Anisul Huq claimed: “A court cannot make a law or order
retention of its earlier version. It can only define the law.”

7. Advantages of Sixteenth Amendment
• 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.
• Additionally this amendment was expedient and necessary for the revival of
Article 96 of the Constitution enacted in 1972.

8. Thank You