After my utmost effort we were able to do a research on 16th amendment is the violation of the basic philosophy of the Constitution: A Critical Analysis. Know and analyze the sixteen amendments of the Bangladesh Constitution - Focus on impeachment of judges. This article indicates that the Sixteenth Amendment is a violation of the basic philosophy of the Constitution: A Critical Analysis.
Chapter: 2
16 th Amendment of Bangladesh Constitution
Amendments of Bangladesh Constitution
A comparative study between 5 th and 16 th
Comparative study between 8th& 16th Amendment
Impeachment on world perspective
Commonwealth countries
The underlying advance, the one that is sure to be the offense, is taken by the House of Representatives. By strategy, for example, President Bill Clinton was impeached by the House of Representatives, he was not impeached by the Senate anyway. Of those fifteen: eight were condemned by the Senate, four were acquitted by the Senate, and three surrendered before an outcome at commencement.
They are deposed by the Crown in an area determined by both Houses of Parliament (Supreme Courts Act 1981, s 11(3)). In Scotland, judges are vacated by the Crown on the proposal of the Scottish First Minister. The proposal cannot be made unless a target for this impact is approved by the Scottish Parliament in a development initiated by the First Minister.
This development cannot in any event be initiated unless a committee consisting of two sitting or dedicated judges, a senior legal guide and a lay person submits a report to the Scottish Parliament explaining that the judge is unfit for office due to infirmity, dereliction of duty or dire straits. Owing to the proposed departure of the Lord President or Lord Justice, the Scottish First.
India
- Writ against 16 th amendment
- Judgment of High Court Division
- Appeal against judgment
- Judgment of Appellate Division
- Pending Review
7. The Sixteenth Amendment is ultra vires the Constitution for what it is worth in direct conflict and opposition to the spirit of the Preamble to the Constitution. 8. The independence of the judiciary is one of the main points of the Constitution as clarified in Anwar Hossain Chowdhury and others. 13. The Supreme Court of Bangladesh being the guardian of the Constitution should not allow any advancement of the Constitution; but rather the Sixteenth Amendment is an advance on the autonomy of the guardian of the Constitution.
According to the Appellate Division's judgment in the Fifth Amendment case, the arrangements identified with the Supreme Judicial Council were held blameless in the Constitution of Bangladesh. According to Article 147, fourth paragraph, of the Constitution, this (Article 147) applies, among other things, to the workplace of a judge at the Supreme Court. The Sixteenth Amendment has undoubtedly fluctuated the expulsion component of the sitting judges of the Supreme Court of Bangladesh due to their unfortunate behavior or their inadequacy to their disservice.
18. The sixteenth amendment of the method of giving the intensity of the expulsion of the judges of the Supreme Court to the members of the Parliament is definitely against the soul of the freedom of the judiciary. Since Parliament has restored the original provisions of Article 96 of the Constitution, the Sixteenth Amendment is not subject to judicial review. The Supreme Court is the guardian of the Constitution, but not the overseer of the entire process of government.
This separation is a prerequisite to ensure independence of higher judiciary as enshrined in Article 95 of the Constitution.
Violation of Basic Philosophy of the Constitution
- Violation of basic structure of the constitution
- Violation of rule of law
- Violation of Independence of judiciary
- Violation of Basic philosophy of the constitution
As indicated by Montesquieu's hypothesis of division of intensity, the three organs of the state will perform their duty independently. As stated in the Sixteenth Amendment of the Constitution of Bangladesh, the powers of judges are vested in members of Parliament. Through the 16th Amendment, Article 96 of the Constitution is amended and the impeachment procedure for judges goes to the hands of Parliament from the Supreme Judicial Council.
If Supreme Court judges are dismissed by Parliament, the judges cannot act independently. The underlying logic implies the essence or principle of the constitution, which reflects the primary motivation for the constitution. This change harms the principle of law, the non-attachment of intensity, the basic structure of the constitution.
In this sense, the Sixteenth Amendment disregards the basic structure of the Constitution and will be an ultra-infection of the Constitution in the vicinity of Article 70 as it stands. Through this process, the general population of justice, influenced by the standard of law, will deny another essential rationality of the constitution.
Chapter: 6
Opinions of Legal experts
Opinion of D. Kamal Hossain
The formal needs of the autonomy of judges include, among others, the security of their residence and the reasonable state of administration. Since the Sixteenth Amendment infringes upon the independence of the Judiciary and the separation of powers, the equivalent is at war with Article 7B of the Constitution and is therefore subject to overturning. The Sixteenth Amendment has unmistakably changed the component of the impeachment of Supreme Court justices by reason of their proven remorse or unfitness due to their injury during their term of office, and in this light, the Sixteenth Amendment is inconsistent with Article 147(2) of the Constitution.
Amir-ul Islam learned Amicus Curiae, he was one of the Members of the Constitution Drafting Committee in the post-freedom period in 1972. As indicated by him the sixteenth amendment is illegal and unlawful and violative of the division of intensity. However, there was no other choice for the members of the drafting committee to delegate the activity of the removal of the Supreme Court judges to Parliament and Parliament was therefore equipped with it by the first Constitution of 1972.
We learn through involvement and experience that it is the best instructor for an individual and the reconstruction of the first article 96 of the constitution by the sixteenth amendment is not sustained by experience and in such a way the meetings of Sri Lanka, India and Malaysia not cheerful. The guideline of independence of judiciary requests that a judge should be tried by his companions for his misbehavior/error or inadequacy and this will best ensure his autonomy in the release of his legal capacity.
Opinion of Mr. Ajmalul Hossain
The power of law is not rational, but our experience shows that currently around 70% of parliamentarians in Bangladesh are everyday representatives and disputants, and for the freedom of the judiciary, they should not be associated with the procedure of evacuating the judges of the Supreme Court of Bangladesh due to proven mischief or inadequacy. He does not find fault with the Sixteenth Amendment, but what is of the greatest importance is that the law to be circumscribed under the Revised Article 96, Sec. if this law is limited by Parliament, it is difficult to say at this stage whether the Sixteenth Amendment has impaired the freedom of the judiciary or not. The Judges of the Supreme Court should be tried by their friends should there be any incidence of misconduct or inadequacy and this will ensure the freedom of the higher judiciary without limit degree and in this regard, the Supreme Judicial Council as presented in Article 96 of the Fifteenth Amendment of the constitution is the best component.
The arrangements identifying with the Supreme Judicial Council were continually presented Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) and in the Fifth Amendment case the Appellate Division overlooked these arrangements as being increasingly straightforward and protective of liberty of the judiciary. There is reliably a degree of abuse of the intensity of the evacuation of the Supreme Court judges by the members of parliament on the quality of the sixteenth amendment that invalidates the freedom of the higher judiciary. Article 7B of the Constitution should have been at the back of the minds of the MPs before the Sixteenth Amendment was passed and the Sixteenth Amendment is affected by Article 7B of the Constitution as it has affected the independence of the judiciary, one of the essential highlights of the Constitution.
It is common knowledge that in our nation, the majority of officers have criminal records; however, in any event, they will be dealing with a Sixteenth Amendment disqualification process for Supreme Court justices, and this may offer a rise to an irreconcilable circumstance that poses a risk to the legal standard. Ajmalul Hossain finally presents that the Sixteenth Amendment is a colorful piece of legislation in the reality and conditions of the case and in that role the Sixteenth Amendment should disappear.
Chapter: 7 Conclusion
Recommendation
There is an obstacle to the responsibility of judges, while at the same time ensuring that their freedom is not affected. The Supreme Court has restated a 39-point set of principles for its judges with a view to avoiding any doubt and confusion under Article 96 of the Constitution. Under no circumstances will a judgment be pronounced later than six months after the date of the judgment.
A person's conduct and leadership of the higher legal power must confirm the confidence of the people in the justice of the legal executive.
Conclusion
Since the judiciary, which is subordinate to the president, is also subject to the election of the prime minister, who is also the leader of the decision-making political assembly. Regarding the choice of the Supreme Court in the Sixteenth Amendment case, I would say that the decision has been a cherished dream for the people in the legitimate field explicitly and for the general population in general. In any case, the decision has made a doctrinal or hypothetical authority regarding the use of a unique constitution to discover the basic structure.
Smart people will also think that 'is there any extension to keep the first Constitution stable?. The most advantageous way will be to keep both all the time for both "autonomy" and "control and equality" are essential. In this direction, the Assembly and the High Judicial Council can act simultaneously in relation to each other; and there may be two institutions for sharp agreements to be specific 'Judges (Appointment) Act and 'Judges (Inquiry) Act'.
Otherwise, this decision will be a reference point for canceling every amendment of the first Constitution in the days to come, by practicing political malafides and naming it as a 'chronic botch'.
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