Bangladesh’s Independent Judiciary in Peril

The country takes an ominous step toward lawlessness.

Former American Ambassador Caroline Kennedy once proclaimed: “The bedrock of our democracy is the rule of law and that means that we have to have an independent judiciary, judges that can make decisions independent of the political winds that are blowing.” In the United States and other democratic countries across the globe, an independent judiciary is a pivotal part of the democratic system. Without the existence of an independent judiciary that is willing to stand up to the powers that be for the cause of justice, a society cannot be called democratic. 

Judicial independence in the country of Bangladesh has come under attack in recent days. The Bangladeshi government under Sheikh Hasina has inserted the 16th amendment into the constitution, which empowers the parliament to remove supreme court justices if allegations of incapability and misconduct are proven to be true.  However, this provision is problematic for a number of reasons. Bangladeshi Chief Justice Surendra Kumer Sinha, a Hindu, ruled that the amendment was illegal, stressing that “judges are neither subject to periodic elections nor to censure. They serve until they reach the age of retirement. They may be removed only for proven misbehavior or incapacity or gross misconduct.”

He continued:

In their day to day functions, judges wield tremendous pressure. They are to review decisions of both the legislative and executive branches. For judicial independence, it requires a guarantee that the judiciary is free from any interference.  Judges can be removed following a due procedure. They cannot be removed or punished for bona fide errors or for disagreeing on a particular interpretation of  law. Also, the judges act according to ethical standards and are held accountable if they fail to do so. International law clearly establishes that judges can only be removed for serious misconduct or incapacity. Disciplinary proceedings must be conducted by an independent and impartial body.

Unlike the US Congress, which has a strong system of checks and balances in place during judicial impeachment proceedings to ensure that the political dictates of the day do not interfere with judicial independence, Bangladesh’s system of checks and balances has been compromised ever since Sheikh Hasina rose to power and especially since the contentious 2014 elections, when Sheikh Hasina scrapped the provision that a neutral caretaker government should oversee elections and when 153 MP’s were selected instead of being elected. This dramatic move has put the Hasina government at odds with the Bangladeshi Supreme Court. According to Shipan Kumer Basu, head of the Hindu Struggle Committee, “No opposition was allowed to contest the election against Awami League MP’s. [Chief Justice] Sinha declared that the present government is not valid. The sticking observation that the Chief Justice gave was that each and every citizen has the right to vote, which was flouted in the last election. So the government is not authorized to function anymore. The government now finds itself in a fix and by any means wants to repeal that observation.”

Since Bangladeshi democracy was so severely compromised in the last election, the Bangladeshi Supreme Court justice wants an independent body of judges -- and not the Bangladeshi Parliament -- to oversee the removal of justices. Chief Justice Sinha is not convinced that the dictates of the MP’s political parties won’t affect the outcome of any proceedings. His fears are justified by the fact that the ruling Awami League has already called for Sinha’s resignation due to his stance on this particular ruling and no other reason.

Basu believes the fact that Sinha is a Hindu plays a significant role in how Sheikh Hasina’s government is presently treating him:

The ruling party appointed the Chief Justice themselves. She wanted to show that she is secular. But if we look back, we will find that Sheikh Majibor Rahaman was a person who did not want a separate state at all. He wanted to be part of Pakistan. He wanted to become the chief minister of the state. He is a co-conspirator of the great Calcutta killings in 1946, where more than 20,000 Hindus were massacred. The Awami League has its origins in the Muslim League.  So the roots of the party is in no way linked to the freedom struggle of Bangladesh. Sheikh Hasina is the successor who promised to follow in her father’s footsteps. By appointing the chief justice from the minority community, she engaged in political appeasement. If the Chief Justice was a person from the majority community, the government would not have the audacity to speak out against him. The situation in the country needs a turnaround.

If Bangladesh continues to target a chief justice because of his faith and his opposition to a certain government position due to his support for maintaining an independent judiciary, what little that remains of Bangladeshi democracy will cease to exist. Once this happens, a dictatorship that persecutes minorities and gives a green light to radical Islamists to do likewise will fill the void.