Separation of Powers in Bangladesh Under Threat

Bangladesch Parlamentswahlen Gewalt in Rajshahi

The parliamentary elections in early January were marred by massive unrest and clashes between supporters of the two major parties AL and BNP

The verdict could not have been clearer: With 327 votes to 0, the parliament in Dhaka voted on September 17 for the ruling party Awami League’s (AL) so-called constitutional 16th Amendment. The new amendment bestows parliament the power to investigate and sack the South Asian nation’s top judges on the grounds of incapability and misconduct.

The reason for such a unanimous decision: The country’s main opposition party – Bangladesh Nationalist Party (BNP) – has no representation in the legislature as it boycotted the parliamentary elections held earlier this year.

Critics say the amendment grants the government influence over the country’s judiciary. They fear it could be exploited by the administration to influence the rulings of senior judges, to put them under pressure and control them.

“The amendment represents a major threat to the independence of the judiciary,” says Sara Hossain, a lawyer practicing in the Supreme Court of Bangladesh. Many of her colleagues share a similar view, she told DW. Although she had raised her concerns with politicians, they were not taken into consideration, Hossain stressed.

Widespread criticism

Opposition parties have also criticized the constitutional amendment, suspecting a government plan behind the move to establish a one-party rule and to abolish the separation of powers between various branches of the state. “By making such changes to the law, the Awami League wants to make sure that it remains in power,” says Mirza Fakhrul Islam Alamgir, the BNP’s acting secretary general.

Bangladesh has a political system in which the constitution reins supreme, even above the parliament, Lawyer Hossein explained. “If lawmakers are now equipped with these powers, it is a slap in the face for the entire system,” she underlined.

This view is also shared by Christian Wagner of the German Institute for International and Security Affairs. “The judicial system in Bangladesh has so far been formally independent. Even the appointment of the Chief Justice of the country’s top court was made by the judiciary itself,” Wagner told DW. The recent law change severely undermines the judicial independence, the expert added.

“Judges who issue rulings that are unpopular in the eyes of the Parliament now face the threat of being removed from office by a majority vote in the parliament,” Wagner explained. Considering the numbers in the current parliament, it is an easy game for the ruling party – which has a three-quarters majority – to initiate proceedings against judges.

Furthermore, the legislature lacks a powerful opposition due to the non-representation of the BNP in the body.

Exceptional cases?

However, Suranjit Sengupta, a ruling AL party politician and chairman of the Parliamentary Standing Committee on the Ministry of Law, Justice and Parliament Affairs, rejects all criticism. He explains that the term “impeachment” of judges is misleading and is specifically used by opponents to confuse the public.

Impeachments are not a common practice and are only carried out in exceptional cases, the politician said. “A judge can only be removed from office when the person is suffering from mental illness or if allegations of incapability or misconduct against them are proved,” Sengupta stressed.

Furthermore, the politician pointed out that the president still has the final word on the impeachment of a judge. Only the intermediate entity in the impeachment process is changing: Instead of a judicial panel as before, from now on it will be the parliament that will recommend the impeachment of a judge if two-thirds of members in the legislature agree.

Deep rift between the camps

It is unclear what impact the current law change will have on the overall situation in Bangladesh. The political situation in the country has been tense for a long time. The parliamentary elections in early January were marred by massive unrest and clashes between supporters of the two major parties AL and BNP.

These two outfits have been shaping the country’s politics since the early 1990s. A fierce power struggle has long been raging between the leaders of the two parties – Prime Minister Sheikh Hasina (AL) and Khaleda Zia (BNP).

Despite all the reassurances from both sides, Khandokar Mahhub Hossain, president of the bar association of the Supreme Court, is pessimistic about the future. He believes the recent developments will have drastic consequences on the day-to-day work of the country’s top judges.

“There will be chaos,” Hossain told DW. “Judges will have to live in constant fear of being removed from office once they issue verdicts that are against the wishes of the Parliament,” he explained.

This view is shared by SWP expert Wagner: “It is feared that the government would use this amendment to remove unpopular judges and appoint those acceptable to the ruling party.”

When the government does it for the first time and replaces a judge, then the move “could once again inflame the country,” the analyst underlines, warning of a “renewed political escalation.”