Bangladesh: ICJ urges Parliament to ensure laws governing impeachment of Supreme Court judges respect the independence of the judiciary
The ICJ expressed concern at the promulgation of a constitutional amendment that empowers the Bangladesh Parliament to impeach judges of the Supreme Court.
The ICJ urges the Government to ensure the impeachment provision meets its obligations under the International Covenant on Civil and Political Rights and international standards on the independence of the judiciary.
“Parliament must prescribe adequate safeguards to ensure the newly enacted impeachment provision meets international standards for protecting the independence of the judiciary and the right to a fair trial,” said Sam Zarifi, ICJ’s Director for Asia and the Pacific. “Without such safeguards, the looming fear of arbitrary and politically motivated impeachment would create an environment in which judges would be unable to exercise their judicial functions independently and impartially, especially in cases involving the Government.”
On 22 September 2014, President Abdul Hameed gave his assent to the 16th constitutional amendment, which was passed unanimously by the Bangladeshi Parliament on 17 September 2014.
The amendment empowers Parliament to impeach judges of the Supreme Court on the grounds of “proven misbehavior or incapacity” by passing a resolution supported by at least a two-third majority of parliamentarians.
To exercise this power, Parliament has to first pass a law to regulate the procedure in relation to investigation and proof of the misbehavior or incapacity of a judge that would lead to an impeachment.
International standards on the independence of the judiciary, including the UN Basic Principles on the Independence of the Judiciary, the Commonwealth Principles on the Accountability of and the Relationship between the Three branches of Government, and the Beijing Statement of Principles of the Independence of the Judiciary, stipulate that judges shall be subject to suspension or removal only for “reasons of incapacity or behavior that renders them unfit to discharge their duties”.
The phrase “proven misbehavior or incapacity” in the Bangladeshi amendment will have to be interpreted and applied in line with this relatively high threshold.
“Impeachment of judges must be an exceptional measure, reserved for cases of gross misconduct,” said Zarifi. “Unless Parliament takes great care to ensure the law regulating and clarifying the impeachment procedure follows international law and standards on the removal of judges, the constitutional amendment can only be interpreted as an assault on the independence of the judiciary.”
Any removal proceedings must meet international standards on fair trial and due process.
A judge at risk of being disciplined or removed must be accorded the right to be fully informed of the charges; the right to be represented at the hearing by council of choice; the right to make a full defense; and the right to be judged by an independent and impartial tribunal.
“The actions that Parliament might take under the impeachment amendment are particularly worrying given the Awami League Government’s recent record of passing a series of regressive laws and policies relating to human rights,” added Zarifi. “After clamping down on the operation of civil society groups and restricting freedom of expression of the media and human rights defenders, it appears that the Government is now looking to target the judiciary.”
An independent and impartial judiciary is central to the protection of human rights and the rule of law.
The ICJ therefore urges the Bangladesh Parliament to safeguard judicial independence by ensuring that the laws governing the impeachment procedure meet international law and standards on the independence of the judiciary and the right to a fair trial.
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser (London), t: +44 7889565691; e: reema.omer(a)icj.orgNewsWeb stories