International Commission of Jurists
Bangladesh: ICJ urges Parliament to ensure laws governing impeachment of Supreme Court judges respect the independence of the judiciary

Bangladesh: ICJ urges Parliament to ensure laws governing impeachment of Supreme Court judges respect the independence of the judiciary

Sep 24, 2014 | News

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.

Contact:

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.org

South Sudan: Lack of domestic judicial capacity and the need for international cooperation and justice

South Sudan: Lack of domestic judicial capacity and the need for international cooperation and justice

Jun 25, 2014 | Advocacy, Non-legal submissions

The ICJ made an oral statement at the UN Human Rights Council, highlighting a severe lack of domestic judicial capacity, and the large needs for justice in relation to gross violations and international humanitarian law, as well as ordinary civil and criminal matters, in South Sudan.

The ICJ reported in 2013 that, notwithstanding substantial legal reforms, the justice system in South Sudan was so under-resourced that statutory courts were effectively unavailable to a large majority of the population. Further, judicial appointment procedures were insufficiently independent or transparent to satisfy international standards. Customary courts have a greater presence, but rightly do not have criminal jurisdiction, and further do not meet international standards as regards, for instance, institutional guarantees for independence and impartiality.

In addition to the difficulties most residents already faced in accessing justice, the conflict has resulted in gross violations of human rights and international humanitarian law. South Sudan must ensure effective remedy and reparation for victims of such violations, and that anyone reasonably suspected of responsibility is investigated and, if there is sufficient evidence, prosecuted. At the same time, it must fulfill the fair and effective administration of ordinary civil and criminal justice.

Particularly given the scale and gravity of the violations, the South Sudanese justice system simply does not have the capacity to bear this burden, at least not alone. In addition to building the capacity of the domestic judiciary, it is clear that an international criminal tribunal, preferrably the International Criminal Court, will need to play a key role. Other states, too, will have to exercise all grounds of jurisdiction at their disposal, and deliver effective mutual legal cooperation.

The ICJ considers that the lack of an effective, independent and impartial court system in South Sudan may well have contributed to the rapid deterioration of the situation over the past months. Building an independent and impartial justice system in which all residents of South Sudan can have confidence is essential to preventing recurrence of the violations in the future.

HRC26-Oral statement on SouthSudan-Advocacy-non legal submission-2014 (full statement in PDF)

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