Judicial Independence Is Non-Negotiable

Introduction

Recently, the full verdict of the 2024 Review Judgment in Civil Review Petition No. 751 of 2017 has now been published, and upon careful examination, it becomes evident that this is a historic document, one in which the Supreme Court of Bangladesh took a decisive and principled stand in defence of judicial independence. In a constitutional democracy, the judiciary serves not merely as an institution but as the guardian of the rule of law. Its independence is not a matter of convenience or prestige; it is fundamental to the very survival of constitutional governance.

Through the restoration of clauses (2)–(8) of Article 96 of the Constitution, the Appellate Division did far more than correct a technical oversight, it issued a powerful reaffirmation of core constitutional values. In doing so, the Court made it unequivocally clear that judicial independence is non-negotiable, and that the Constitution must not be manipulated by transient political impulses or majoritarian pressures. This article explores the deeper symbolism, legal clarity, and institutional resilience reflected in this judgment, and explains why the 2024 Review Judgment on the 16th Amendment stands as a defining moment in the constitutional history of Bangladesh and a critical milestone for its democratic future.

Article 96: Guardian of Judicial Integrity

Article 96 of the Constitution of Bangladesh outlines the mechanism for the removal of Judges of the Supreme Court. Prior to the enactment of the 16th Amendment in 2014, this authority was vested exclusively in a Supreme Judicial Council (SJC), composed of the Chief Justice and the two senior-most Judges of the Appellate Division. Although not without its critics, the SJC system was established to maintain confidentiality and fairness in addressing allegations of judicial misconduct, to shield the judiciary from political retaliation, and to uphold the fundamental principle of separation of powers. However, the 16th Amendment significantly altered this framework by transferring the power of removal to Parliament. This change effectively politicized the process, exposing judges to the influence of majoritarian pressures and thereby compromising judicial independence. In doing so, it pushed the constitutional doctrine of checks and balances to a critical tipping point.

The 2024 Review Judgment: More Than a Correction

The original 2017 judgment struck down the 16th Amendment and reinstated the Supreme Judicial Council (SJC); however, it omitted any reference to clause (8) of Article 96, which safeguards a judge’s right to resign. In its 2024 Review Judgment, the Appellate Division addressed and corrected this omission by restoring Article 96 in its entirety. This act was more than a simple rectification of an oversight; it represented a profound reassertion of core constitutional values. It reaffirmed that the Constitution is a living document, not a tool to be manipulated by shifting political majorities; that the personal autonomy of constitutional officeholders, including judges, must be preserved; and that the institutional sanctity of the judiciary must be shielded from both external political interference and internal administrative confusion.

The Chief Justice, Syed Refaat Ahmed, aptly observed:

The entrenched right of resignation ubiquitously present throughout the constitutional framework is a right guaranteed to constitutional officeholders straddling all three organs of the State.

Why This Judgment Matters: A Broader Perspective

• Constitutional Resilience in a Politicized Era

In an era where institutions around the world often face intense political pressure, Bangladesh’s highest court has taken a thoughtful and principled stand to preserve the constitutional balance. By fully restoring Article 96, the Appellate Division reaffirmed that core constitutional values cannot be set aside for short-term political advantage. Through its judgment, the Court conveyed a clear yet measured message: while Parliament holds legislative authority, that power does not extend to undermining the independence of the judiciary. This position is not an assertion of superiority, but rather a careful affirmation of the Court’s responsibility to uphold the Constitution with integrity and restraint.

• Rebalancing the Doctrine of Separation of Powers

The 16th Amendment had fundamentally distorted the horizontal balance of power among the Legislature, Executive, and Judiciary. By restoring Article 96, the Court reaffirmed the Supreme Judicial Council’s primacy in overseeing judicial discipline and removed the judiciary from the shadow of parliamentary control.

Justice Zubayer Rahman Chowdhury went further, branding the Amendment as:

What was the essence of the Sixteenth Amendment case? In my view, it was an attempt by a despotic and fascist Government to wrest the power of removal of Judges from the Supreme Judicial Council and vest them in the hands of the Parliament, thereby putting the independence of Judges at stake.

Such forthright language from the judiciary, while rare, underscores the severity of constitutional subversion that was attempted through the 16th Amendment.

• Reclaiming Judicial Legitimacy Through Self-Regulation

The 2024 Review also corrected another significant constitutional misstep the formulation of a Code of Conduct for judges by the Appellate Division itself in 2017. While the initiative reflected good intentions, it overstepped constitutional limits, as Article 96(4)(a) clearly vests that responsibility in the Supreme Judicial Council.

By reassigning this authority to the SJC, the Court acknowledged the importance of institutional processes and internal accountability, reinforcing the principle that independence must be matched with responsibility.

• The Expungement of Political Commentary: Judicial Modesty Reaffirmed

Another key feature of the Review was the expungement of certain political and historical remarks made by Justice Md. Ashraful Kamal in the High Court Division’s dissenting opinion. These remarks, concerning the role of former President Ziaur Rahman, were declared obiter dicta, lacking legal necessity and undermining judicial neutrality.

Justice Md. Rezaul Haque rightly observed:

The remarks were passed without objective consideration… and appear to be political in nature and derogatory to judicial norms.

In doing so, the Appellate Division reaffirmed that judges are not historians, commentators, or political analysts, and must exercise judicial restraint.

End Note: Constitutionalism Reinforced

The restoration of Article 96 in full is more than a legal correction, it is a symbol of constitutional resilience. It signals that neither time nor power nor partisanship can erode the foundations of judicial independence, so long as there remains a judiciary willing to defend the Constitution with courage, clarity, and conviction. The 2024 Review Judgment is not the end of a legal battle it is the renewal of a constitutional promise: That the rule of law will remain supreme, and that the judiciary will remain free, even in the face of overwhelming political forces.

Epilogue: A Lesson for All Branches of Government

In Bangladesh, where democratic institutions are still evolving, the Review Judgment of 2024 stands as a constitutional compass guiding future legislatures, executives, and judges to respect the equilibrium envisioned in the Constitution. To safeguard democracy, one truth must be internalized across all branches: A Constitution is not what a majority makes it; it is what the judiciary protects it to be.

Author Mokarramus Shaklan, Advocate, Supreme Court of Bangladesh. E-mail: m_shaklan@yahoo.com