Description

The Constitution Sixteenth Amendment revived the original provision in vesting the power of removal of Judges of the Supreme Court upon Parliament. The Appellate Division, however, declared the Amendment ultra vires in the Constitution 16^th Amendment Case. The Government submitted, inter alia, that the Amendment ensured accountability of the Judges to the people. This article argues that the parliamentary removal mechanism of Judges furthers the system of ‘checks and balances’ and not the accountability of the Judges. The article thus holds that due to the faulty argument of the Government, the whole attention of the Court was misdirected towards ensuring accountability of the Judges instead of maintaining the balance of power between Parliament and Judiciary. The article, therefore, suggests an alternative interpretation of the Constitution Sixteenth Amendment revolving mainly around the idea of ‘checks and balances’. The alternative interpretation if properly presented by the Government, perhaps the Court would have put under more compulsion to save the Amendment following this principle of statutory interpretation: Between two interpretations, save the Act. The article has in view two main objectives: first, it would bring it to the attention of both the Bar and the Bench that they should take adequate care of venturing all the possible alternative interpretations of a constitutional provision especially when they are deciding the validity of a constitutional amendment; second, the knowledge it develops might prove beneficial in any future litigation of the Bangladesh constitutional law on issues concerning ‘separation of powers’ and ‘checks and balances’.

Keywords: Constitution Sixteenth Amendment, independence of judiciary, basic structure, accountability of the Judges, ‘separation of powers’, ‘checks and balances’.