A Catch-22 for Supreme Court

Bangladesh Supreme Court is now going through a peculiar situation.

Three of its judges who were asked last week to refrain from judicial work on charge of alleged misconduct can neither be removed from their offices nor can they resign.

They cannot be removed even if the allegation against them is proved in investigation due to the absence of any proper process and authorities.

But it was not like this before. Until 2014, the Supreme Judicial Council (SJC) was empowered to carry out investigation into any alleged misconduct by any apex court judge. If allegations were proved, the council could recommend to the president for removal of the judge.

Introduced in 1978 in the constitution, the SJC was comprised of the chief justice and two other senior judges of the Appellate Division.

Things took a different turn in 2014 when the government abolished the chief justice-led SJC and empowered parliament to remove SC judges on the grounds of misconduct or physical incapacity by amending the constitution for the 16th time.

But the High Court scrapped the 16th amendment in 2016 when it was challenged. The government also lost its appeal with the Appellate Division. The government then sought a review of the Supreme Court judgement which is pending.

So, that puts the judicial system in a peculiar situation where a Supreme Court judge cannot be removed.

The three HC court judges in question are the first to be accused of misconduct after cancellation of the constitutional provision for removal of judges.

A primary inquiry was opened against them, according to a press statement issued by a Supreme Court spokesperson last week.

But the question is: What action can be taken against them if the allegation is proved?

According to former law minister Shafique Ahmed, there is a vacuum right now in the wake of the situation centring the constitutional amendment that had restored parliament’s power to remove an SC judge.

“What can be the next course of action regarding the three judges will remain unclear until disposal of the case,” he told The Business Standard, referring to the review petition against the 16th amendment verdict.

Barrister M Amir-ul Islam, however, thinks the chief justice-led Supreme Judicial Council has to open investigation into the allegation of misconduct against the three judges. He claims that the Supreme Judicial Council has automatically been restored after cancellation of the 16th amendment to the constitution.

There is another unique thing in this saga. The constitutional provision about resignation of Supreme Court judges was made a part of the 16th amendment, which was nullified by the apex court. So, the three judges cannot resign from their offices even if they want to.