This book highlights that an independent judiciary is indispensable for the very existence of any society based on democratic values, such as the observance of the rule of law and respect for the human rights of individuals. In order to ensure that the judiciary’s interpretation of the law is not bound by the will of the executive and that it is able to call the executive to account by protecting the life as well as liberty of the governed, it is imperative to guarantee, among other things, a transparent method of appointment and the security of tenure of the judges. Taking into account the importance of an independent judiciary in a democratic society, the framers of the Constitution of Bangladesh, 1972, following in the footsteps of the framers of the Constitutions of India and Pakistan, incorporated in the Constitution the ideal of safeguarding the independence of the judiciary as one of its basic features. This book, however, makes it manifestly evident that the key elements for realising such an ideal have not adequately been guaranteed by the Constitution. Consequently, this book sheds light on how succeeding generations of executives have sought to undermine the independence of the judiciary.
Accordingly, this book puts forward recommendations for the insertion of detailed norms in the Constitution of Bangladesh for establishing the best means for excluding patronage appointments to the bench and for guaranteeing the security of tenure of the judges. This book asserts that the incorporation of such norms, safeguards the independence of the superior judiciary to decide cases without fear or favour. This book, therefore, seeks to address the gap that exists between the theory and practice concerning the independence of the judiciary in Bangladesh.
Since no book is currently available in the market that critically examines these issues in a systematic and structured manner, this research enhances knowledge by not only identifying the flaws, deficiencies and lacunae of the constitutional provisions concerning the method of appointment of the judges of the Supreme Court of Bangladesh but also the measures undertaken by the current Bangladeshi regime to dispense with the transparent method of removal of the judges involving a body of judicial character.
Table des matières
1. Introduction.- 2. The Principle of Judicial Independence and Its Recognition in the Constitution of Bangladesh, 1972.- 3. The Method of Appointment of the Judges of the Supreme Court (SC) under the Constitution of Bangladesh, 1972.- 4. The Intrusion of Extraneous Considerations in the Appointment of the Chief Justice and the Other Judges of the Supreme Court of Bangladesh.- 5. The Guarantee of Security of Tenure of the Judges of the Supreme Court under the Constitution of Bangladesh, 1972.- 6. The Functioning of the Supreme Judicial Council, the Changes Introduced to the Method of Removal of Judges of the Supreme Court of Bangladesh.- 7. Conclusion.
A propos de l’auteur
Dr M. Ehteshamul Bari is a Senior Lecturer in Law and the Higher Degree Research Coordinator in the Thomas More Law School at the Australian Catholic University (ACU), Melbourne, Australia. He previously served as the Acting Deputy Dean of Law at ACU.
Dr Bari’s primary research expertise lies in the areas of constitutional law, human rights law, Asian law, and public international law. Apart from this monograph, he is also the author of two other monographs, namely,
States of Emergency and the Law: The Experience of Bangladesh (London and New York: Routledge, 2017) and
The Use of Preventive Detention Laws in Malaysia: A Case for Reform (Singapore: Springer, 2020). He has also published many research articles in reputed peer-reviewed journals, including the Oxford University Commonwealth Law Journal, Wisconsin International Law Journal, George Washington International Law Review, Emory International Law Review, Cardozo International and Comparative Law Review, Transnational Law and Contemporary Problems, Michigan State International Law Review, Suffolk Transnational Law Review and San Diego International Law Journal. Dr Bari has received prestigious research awards in recognition of his scholarship.
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