Developments in Bangladeshi Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Bangladeshi constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

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—Ridwanul Hoque, Professor of Law, University of Dhaka, and Sharowat Shamin, Lecturer, University of Dhaka

I. Overview and Introduction

In Bangladesh, the year 2016 was a significant year of judicial activities, with the higher judiciary playing an active role against arbitrary executive decisions. At times, however, the court remained conservative or reticent on issues like the freedom of religion or the secular identity of the nation. The High Court Division declared the 16^th constitutional amendment unconstitutional. This and a few other decisions received mixed reactions from civil society, rights-activists, and politicians. This paper reviews three most significant 2016 decisions in some detail while briefly covering a few other decisions on human rights that might prove impactful and consequential. The paper begins with a short introduction to Bangladesh’s Constitution and the Supreme Court and then turns to some remarkable constitutional decisions that may broadly be categorized into the clusters of separation of powers and rights and freedoms.

II. The Constitution and the Court

The Constitution of the People’s Republic of Bangladesh (‘the Constitution’) was adopted on November 4, 1972 and came into effect on December 16, 1972. The Constitution stands on four ‘fundamental’ principles—secularism, democracy, socialism, and nationalism. These fundamental cores had been subjected to changes many times. Curiously, alongside the principle of secularism, the Constitution currently recognizes ‘Islam’ as the state religion, albeit guaranteeing the ‘peaceful enjoyment’ of other religions (art. 2A). The Constitution entrenches the principle of constitutional supremacy (art. 7), recognises the value of the rule of law, human dignity and human rights, and sets out the goal of social justice. It contains a set of state policy principles which are in effect an index of social rights. Declared to be judicially non-enforceable, these principles are nevertheless ‘fundamental’ in the governance of the State, lawmaking, and legal/constitutional interpretations (art. 8). Importantly, the Constitution has entrenched an enforceable bill of rights that are called ‘fundamental rights’.

The Constitution establishes a parliamentary form of responsible government headed by the Prime Minister, establishes the separation of powers that is based on the notion of checks and balances, and incorporates the basic principles of judicial independence.

The higher judiciary is composed of the Supreme Court of Bangladesh, which has two divisions, the High Court Division and the Appellate Division. The eleven-member Appellate Division hears appeals from any order, judgment, and decree of the High Court Division (HCD). The Chief Justice of Bangladesh, with a wide range of constitutional administrative powers over the management of the Supreme Court, sits in the Appellate Division and is appointed by the President. In case of the appointment of associate justices, the President has to act upon the advice of the Prime Minister and to consult the Supreme Court. In practice, however, it is the executive or, to be more precise, the Prime Minister who appoints all judges of the Supreme Court including the Chief Justice. Judges have a secure tenure, serving on the court until the age of sixty-seven.

The Constitution uniquely places the Supreme Court as its guardian, ensuring its functional independence and the authority to enforce the Constitution. Specifically, the HCD has jurisdiction to enforce fundamental rights through appropriate ‘directions or orders’ as well to enforce legal obligations and remedy legal breaches (arts. 44 & 102). The Court’s judicial review power extends not only over administrative actions but also over legislations and constitutional amendments. Before the 16^th amendment decision of the HCD that is now subject to an appeal, the Appellate Division invalidated 5^th, 7^th, 8^th, and 13^th amendments with finality, and urged for the restoration of core features of the founding constitution of 1972.

III. Constitutional Controversies

Two decisions, detailed below, were particularly controversial: first was the case in which the HCD declared unlawful the restoration of the old parliamentary process of removal of judges, and second was the instance when it abruptly dismissed a challenge to Islam’s state religion status. Moreover, throughout 2016, there remained a tension between the top judiciary and the executive with particular regard to the Supreme Court’s insistence that the government issue regulations for the control, disciplining, and terms of conditions of services of judges in the junior judiciary in line with principles of judicial independence. In a rolling review,[1] the Appellate Division is extending off-and-on the timeframe for the government to notify such regulations. Earlier, the Appellate Division recommended certain amendments to the proposed bylaw to regulate the conduct and discipline of officials of the junior judiciary. In a tactical defiance, the government let the court know that the President did not think that such a notification was necessary. The controversy and the tug-of-war between the top court and the government on the independence of the lower judiciary are not yet over.[2]

IV. Major Cases

In this part, we focus on three important decisions of the Supreme Court from the year 2016. The first case is a landmark decision by the Appellate Division concerning arbitrary arrests and abusive remand of suspects. The other two decisions are by the HCD, which are controversial decisions in a sense and have high political implications.

Bangladesh v. Bangladesh Legal Aid and Services Trust (BLAST)[3]

This appeal by the government arose from HCD’s judgment of April 2003,[4] in which that court issued a set of guidelines to be followed by the police and magistrates with regard to arrests without warrant, detention in police custody, and interrogation of suspects. On May 24, 2016, the Appellate Division rejected the appeal and largely endorsed the guidelines earlier issued by the HCD.

Arbitrary arrests or detention and the use of torture in police custody for the extraction of confessions or for other unlawful gains have been rampant in Bangladesh, despite that the Constitution guarantees procedural and substantive safeguards for the arrestees or suspects of crimes and prohibits torture. The history of this liberty-protective decision dates to July 1998 when a young university student, Rubel, died in police custody within hours after his arrest by police on the suspicion of committing crimes. Rubel’s death was caused by severe torture while in custody. Section 54 of the Criminal Procedure Code of 1898 authorizes the police to arrest any person without warrant if the police-officer reasonably suspects that person to be involved in any cognizable offence.[5] Following the most shocking death of Rubel in police custody, a legal rights organization, BLAST, brought a public interest litigation seeking court directives with a view to preventing arbitrary arrests and custodial torture in the future. Eventually, the HCD issued a 15-point guideline in 2003, clearly delimiting the power of the police to arrest without warrant and the discretion and authority of the magistrates to remand an arrestee to police custody.

On appeal, the Appellate Division largely upheld the HCD’s guidelines, which can be termed as Bangladesh’s Miranda-safeguards, and asked the relevant authorities to comply. Most notable of the guidelines are that the police are now required to disclose identity when making an arrest, prepare a memorandum of arrest, inform the relatives or friends of the arrest, and to take the arrestee to a medical doctor in the event of any injury during arrest. The guidelines also require the magistrates to initiate legal proceedings against the concerned police-officer in case she or he is found to have breached the law.

It goes without saying that the rationale of this decision is embroiled in the principle of the rule of law. The court thought that being the ‘guardian’ of the Constitution, it could not keep quiet in the face of rampant violation of fundamental rights of citizens by law-enforcing agencies. Moreover, it placed special focus on the constitutional right to life and the notion of due process, and reaffirmed that the right to life includes a right to live with human dignity. When developing its reasoning, the court also revealed a sensitization about the disadvantaged citizens’ inability to seek remedies against police brutalities and abusive arrests. Appreciably, it relied on comparative decisions and cited Bangladesh’s international obligations to derive and buttress decisional reasoning when issuing the binding guidelines. In the context of ever-escalating international terrorism and the State’s need to suppress it, the court held that if the need to preserve the state security can be fulfilled by any other reasonable means, a law restrictive of personal liberty would be unreasonable within the meaning of constitutional rights and principles.[6]

It is hoped that the Appellate Division’s guidelines vis-à-vis arrests and detention in police custody will contribute towards ending the vice of impunity for torture and abuses by law enforcement agencies.

Sirajul Islam Chowdhury and others v Bangladesh, Writ Petition No. 1834 of 1988 (State Religion Challenge)

On March 28, 2016, the High Court Division summarily dismissed a 28-year-old constitutional petition challenging Islam as the state religion. The court said that the petitioners lacked any standing to litigate, but it did not hold any hearing at all.[7] Things, however, are not as simple as they might appear. The challenge goes much deeper into the question of ever ‘contested’ national identity as well as the core of the judicial role discourse vis-à-vis moral, political, and religious disputes in a transitioning or divided society.

Bangladesh’s Independence Constitution adopted the principle of secularism as a connotational core. In the late 1970s, the first military regime abandoned secularism and installed into the Constitution the principle of absolute faith in Allah. The second military regime introduced Islam as the state religion. Relinquishment of secularism and the embracement of political Islam by the military regimes were challenged by some eminent citizens and civil society organizations. Moreover, the lawyers too began a movement against the demolition of the State’s secular identity. They feared discrimination against minorities and women, and lodged in 1988 three challenges against the state religion provision, article 2A of the Constitution, incorporated through the 8^th amendment to the Constitution.[8] The 8^th amendment brought forth another change; it decentralized the HCD into six regional benches, which too was challenged at the same time. The challenge to the judicial-decentralization part of the 8^th amendment was successful in 1989 and gave birth to the doctrine of an unconstitutional constitutional amendment in Bangladesh.[9] In contrast, the challenge to the state religion part of the 8^th amendment remained undecided, partially due to an unfavorable political environment despite the country’s transition to democracy in 1991.

When the party that led Bangladesh’s independence movement came to power for the second time in the post-democratic transition era and promised the revival of the lost secular identity, the surviving petitioners thought it wise to revitalize their petition. When the 15^th amendment (2011) revived the principle of secularism but did not strike out the state religion clause, the petitioners added a supplementary challenge to the 15^th amendment too. The HCD showed initial willingness to hear the challenge and appointed amici curiae. As the petitioners’ counsels were preparing to argue the case, the court on March 28, 2016 rather abruptly dismissed the petition reasoning that the petitioners lacked a standing. This argument of the lack of locus standi gave a shock and sheer surprise to the legal community, because the notion of public interest litigation that allows any public-interested citizen to challenge any gross breach of the Constitution became firmly established. As such, although a detailed judgment has not yet become available, it would not be unfair to critique the court’s rejection of the state religion challenge as somewhat unprincipled and incompatible with its own jurisprudence of abstract ‘public interest judicial review’.

Undoubtedly, whether state religion and secularism can go hand in hand under a constitutional order is a novel issue. In the wake of Parliament’s deliberate choice for such a curious solution in a Muslim-majority country and given the local political specificities, especially the fact that the incumbent government’s opposition introduced Islam to the Constitution, the petition seemingly posed some challenges for the court. In addition to the jurisprudential challenges noted, there was another political problem of an acute nature. The time announced for the hearing of the petition turned out to be extremely politically sensitive. Militancy, terrorism, and religious intolerance began to rise sharply. Several secular-minded intellectuals and Internet blog writers had already been killed by extremists. In such a background context, several religious groups commenced demonstrations against the case challenging Islam as the state religion, condemning the petitioners as atheists. They also threatened that the case would trigger disturbances. Another Islamist group ‘requested’ the Court to reject the petition and met with the Chief Justice in the morning of the day of the hearing.

A question remains whether these events influenced the court’s decision. The court certainly did not endorse, nor did it reject, Islam’s constitutional status. It indeed decided not to decide the case involving the status of Islam under the Constitution. For this, the technical ground of locus standi might have appealed to the court as a tool. The approach, however, is not that simple and it begs certain questions. To what extent was the court free to make its own value judgment? Or, did the court skirt its jurisdictional inability to deal with a hard issue such as the legality of Islam’s constitutional status?[10]

Asaduzzaman Siddiqui v. Bangladesh (parliamentary removal of judges)[11]

On 25 May 2016, the HCD in a 2 to 1 decision invalidated the 16^th amendment (2014) that restored verbatim an original constitutional provision regarding the removal of the Supreme Court judges, a system that was absent from 1974 to 2014.

Bangladesh’s original Constitution provided for the removal of Supreme Court judges by an order of the President pursuant to a resolution of Parliament passed by a two-thirds majority and only on the ground of proved misbehavior or incapacity (art 96(2)). Before this provision was ever tested, the 4^th amendment; (1975) had done away with this system, making the judges removable without any legal process that is, merely by an order of the President. In August 1975, the Constitution itself was thwarted, and a lingering period of extra-constitutional regimes installed. The first military regime extra-constitutionally amended the judicial removal clause to introduce a peer-driven removal process, which was later affirmed by the 5^th amendment (1979). The new system made the judges removable by the President upon the recommendation of the Supreme Judicial Council (hereafter SJC), composed of the Chief Justice and the two most senior judges of the Appellate Division. In the meantime, the court also invalidated the 5^th amendment but initially kept intact the system of the SJC. When the 16^th amendment was enacted reviving the system of parliamentary removal of the judges, it was challenged on the principle ground that the removal system was incompatible with the notions of judicial independence and separation of powers.

The HCD proceeded with the undisputed premise that the independence of the judiciary is an essential feature of the Bangladeshi Constitution (‘basic structure’) impervious to a constitutional amendment. The main rationale for the invalidation of the 16^th amendment was that it created an opportunity for Parliament to exert pressure on the judges. The court took into consideration the existing political culture in Bangladesh and the fact that, because of the anti-defection rule in art. 70 of the Constitution, members of Parliament would be unable to freely exercise their minds when deciding on a proposal to remove a judge.

It seems that the court took too seriously the possibility of abuse of the restored original constitutional provisions regarding the removal of judges. In doing so, it lost sight of the fact that Parliament cannot in fact resolve to remove a judge unless there is a positive finding of proved incapacity or misconduct of the concerned judge. It was for an act of Parliament to detail the legal mechanism to investigate and prove the allegations of misbehaviour by any judge. For this purpose, a peer-trial process can be installed, and in fact a law to that effect was in the making when the HCD was hearing the case.

Undeniably, independence of the judiciary is a basic structural norm of the Constitution of Bangladesh, and the judicial removal process is what lies at the core of this normative concept. There is, however, no set formula for maintaining judicial independence when establishing the judges’ removal procedure. In contrast, means and processes of ensuring judicial independence are indeed society-specific and so is the judicial removal process, provided that the basics of judicial independence are kept intact. In this case, the HCD engaged in an exercise of choosing which mode of judicial removal is more suitable for Bangladesh, a political choice that belongs to the people through their elected representatives. Both the system of Supreme Judicial Council and the parliamentary process of judicial removal are constitutional if there is an objective legal standard to measure and prove allegations of misconduct or incapacity of the concerned judge.

Eventually, the 16th amendment decision by the HCD led to the marginalization—indeed defiance—of the constituent power of the founding people of Bangladesh who chose the parliamentary model of judicial removal. Least attractive was the court’s rebuttal of the argument that they lacked power to invalidate a provision of the Constitution originally enacted, arguing that the re-introduction of the original form of art. 96(2) was an exercise of ‘derivative’ constituent power which it had power to assess and pronounce unconstitutional. That this was a folly is clear from the court’s apprehension of the probable abuse of the parliamentary removal of Supreme Court judges. A glimpse of this fallacy can be seen in the court’s own polemic statement that ‘the poking of the nose of the Parliament into the removal process of the Judges’ is violative of the doctrine of separation of powers and that ‘[t]he rule of law will certainly get a serious jolt by the Sixteenth Amendment [that] [i]n fact […] is hanging like a Sword of Damocles over the heads of the Judges of the Supreme Court of Bangladesh’.[12]

In effect, the court’s 16^th amendment verdict is an affront to the separation of powers. Despite the firm footing of the doctrine of basic structure in Bangladesh, the court clearly lacks, it is argued, power to invalidate an original provision of the Constitution even if that is what an amicus curiae termed ‘unsuitable, outdated, [and] obsolete’ in the Bangladeshi context.[13] How can an original provision of the Constitution, restored verbatim after some years of abeyance, be unconstitutional merely because the judges ‘think’ the provision might in the future be abused? In the background history of the 16^th amendment as well as in the challenge thereof loomed a relationship chasm, some three years before this verdict, between Parliament and the executive on the one hand and the judiciary on the other. Whatever be the political motive behind a constitutional amendment, a clearly lawful amendment cannot be struck out by a judicial decision based on extremely feeble, shallow reasons.

Other significant cases: Slum dwellers’ right to housing & the safe environment

In the old tradition of issuing proactive decisions in the protection of slum dwellers in Dhaka (Bangladesh’s homeless community), the Appellate Division on January 31, 2016 upheld the HCD’s prohibitive injunction on eviction of dwellers from Kalyanpur slum in Dhaka. Following a petition filed by Ain o Salish Kendra, Coalition for Urban Poor, and two slum dwellers, the HCD on January 21 issued the injunction restraining the government from evicting this suffering community from their ghettos for three months.[14] While judicial orders such as this could not earlier protect the slum dwellers in the long run, judicial activism of this sort provides some measure of temporary relief to the slum dwellers who have no place to call home.

In another lingering proceeding lodged by an environmental organization, the HCD on June 16 ordered the relocation of some 154 tanneries from the City of Dhaka to a nearby suburb, Savar. Both divisions of the Supreme Court were quite tough on the need to move these polluting industries out, and saddled a heavy compensation in the event of default. The industry owners resorted to many tactics to delay such relocation. When the government in compliance with the court order cut off utility services to the tanneries, they finally moved to the designated suburban industrial zone. This instance of judicial activism was surely for the preservation of the environment and public health. An unintended consequence, however, was that some 50,000 workers lost their jobs at least for months. The court, however, had the issue of their protection in mind, though. It first lessened and then waived the amount of fine for the default of the tannery owners, and ordered redirecting of such amounts to the welfare and rehabilitation of the workers instead.[15]

V. In Lieu of Conclusion

As the above judgments of the Bangladeshi Supreme Court in 2016 show, the court remained an important institution of constitutional politics and governance. The kind of tension that was seen between the organs of the State is in fact inevitable in a democracy. It however remains to be seen how the apex court of the country manages to negotiate, shape, and decide the unresolved issues in the future in regard to the principle of judicial independence and the process of removing judges. Accordingly, a challenging time seems to lie ahead for the court vis-à-vis the issue of legality of an original provision of the Constitution concerning the removal of judges. It will have to strike a delicate balance between institutional legitimacy and capacity and the higher normativity of the founding constitutional principles.

In 2016, the Bangladeshi higher judiciary dealt with the extremely complex issue of the constitutionality of Islam’s state religion status. As said, the court’s decision to not decide such issues as state religion or the principle of secularism was unprincipled, and arguably reveals its institutional fragility to an external volatile environment. And, when judged in the backdrop of current unstable constitutionalism, the court’s decisions in the areas of personal liberty, rights of the most hapless sections of the people in society, and multi-pronged environmental issues, its activism and the role in 2016 seem pragmatic and promising.

VI. Further Selected Reading

Islam, Mahmudul (2012). Constitutional Law of Bangladesh. Dhaka: Mullick Brothers.

Hoque, Ridwanul (2015). ‘Judicialization of Politics in Bangladesh: Pragmatism, Legitimacy, and

Consequences’, in Mark Tushnet and Madhav Khosla (eds.), Unstable Constitutionalism: Law and Politics in South Asia, New York: Cambridge University Press, 261-290.

Hoque, Ridwanul (2015). ‘Courts and the Adjudication System in Bangladesh: In Quest of

Viable Reforms’, in J. Yeh and Wen-Chen Chang (eds.), Asian Courts in Context, Cambridge: Cambridge University Press, 447-486.

Hoque, Ridwanul (2012). ‘Constitutionalism and the Judiciary in Bangladesh’, in S. Khilnani, V.

Raghavan, and A. K. Thiruvengadam (eds.), Comparative Constitutionalism in South Asia, New Delhi: Oxford University Press, 303-340.

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[1] Rooted in the so-called judicial intendance case, Secretary, Ministry of Finance v. Md. Masdar Hossain (1999) 52 DLR (AD) 82.

[2] Details are available at: http://www.thedailystar.net/frontpage/rules-lower-court-judges-sc-says-president-misinformed-1329352/.

[3] 8 SCOB [2016] AD 1 (judgment of May 24, 2016). SCOB= Supreme Court Online Bulletin.

[4] BLAST v. Bangladesh (2003) 55 DLR (HCD) 363.

[5] Cognizable offence means an offence for which a police-officer may under any law arrest without warrant.

[6] Above note 3, para. 114.

[7] Maher Sattar and Ellen Barry, ‘In 2 Minutes, Bangladesh Rejects 28-Year-Old Challenge to Islam’s Role’, New York Times, March 28, 2016. Available at: <http://www.nytimes.com/2016/03/29/world/asia/bangladesh-court-islam-state-religion.html>.

[8] Writ Petition No. 1834 of 1988. The other two challenges were WP No. 1330 of 1988 and WP No. 1177 of 1988.

[9] Anwar Hossain Chowdhury v. Bangladesh (1989) BLD (Special) 1 (decision of the Appellate Division).

[10] For a commentary on this decision, see Hoque, Ridwanul (2016), Constitutional Challenge to the State Religion Status of Islam in Bangladesh: Back to Square One?, Int’l J. Const. L. Blog, May 27, 2016, at: <http://www.iconnectblog.com/2016/05/islam-in-bangladesh>.

[11] Advocate Asaduzzaman Siddiqui v. Bangladesh, Writ Petition No. 9989 of 2014, judgment May 5, 2016.

[12] Ibid., at pp. 144-145.

[13] Ibid., argument of Mr. Amir-Ul Islam, at p. 135.

[14] For details, visit: http://www.thedailystar.net/city/sc-upholds-hc-injunction-eviction-dwellers-210625 (retrieved on April 10, 2017).

[15] A report is available at: http://www.theindependentbd.com/arcprint/details/83525/2017-03-03, and http://www.thedailystar.net/city/doe-collect-tk-1cr-14-industries-damaging-buriganga-1277317 (retrieved on April 10, 2017).