The Appellate Division of the Supreme Court on Sunday reinstated the Supreme Judicial Council by dismissing the state’s petition against the ruling that declared the 16th amendment to the Constitution illegal.
The amendment empowered Parliament to remove Supreme Court justices for their incapacity or violation of the code of conduct.
The latest decision has restored the authority of the Supreme Judicial Council to deal with such matters.
“Disposed of with observation,” said the order passed by the Appellate Division bench headed by Chief Justice Syed Refaat Ahmed.
As part of the verdict, clauses 2 to 8 of Article 96 of the Constitution, repealed by the 16th amendment, were also restored.
“The verdict has reinstated the Supreme Judicial Council’s authority, which had been transferred to Parliament through the 16th amendment, to remove judges. This ruling reinforces the original constitutional provisions,” Barrister Ruhul Quddus Kajal, who was present during hearing, told reporters after the verdict.
Advocate Manjil Mushid moved the writ petition before the court while Attorney General Md Asaduzzaman stood for the state.
The 16th Amendment to the Constitution was passed in January 2014, soon after the Awami League-led 14-party alliance assumed office through January 5 general elections boycotted by the Bangladesh Nationalist Party-led alliance.
On May 5 in 2016, a High Court bench comprising Justices Moinul Islam Chowdhury, Kazi Reza-ul Haque and Ashraf Uddin Kamal declared the 16th Amendment unconstitutional in a majority decision.
A seven-member Appellate Division full bench led by then Chief Justice Surendra Kumar Sinha on July 3, 2017 pronounced its judgment, upholding a High Court verdict that declared illegal the 16th amendment to the Constitution, which had empowered parliament to remov judges for incapacity or misconduct.
After receiving the full copy of judgment, the state filed an appeal to the Appellate Division in January 2017. The full judgment was published in August 2017.
The appellate division led by chief justice Surendra Kumar Sinha observed in its full text of verdict, “I am of the opinion that the said procedure should not be disturbed. The removal process of a judge of the higher judiciary as laid down in the impugned 16th amendment will render insecurity in the mind of the judges thereby creating opportunity to undermine the independence of judiciary making this organ vulnerable and jeopardising the rule of law which will create opportunity for creating political influence and pressure upon them specially when Article 70 of the Constitution is subsisting.
“So long Article 70 is there, the independent wish of a member of the parliament in respect of casting vote freely does not exist.”
Later, in December 2017, the government filed a review petition with the Appellate Division, seeking the reinstatement of the 16th Amendment.
Parliament in 2014 amended the Constitution restoring parliament’s authority to impeach the justices of the Supreme Court in case of misconduct or incapacity.
With the passage of the bill, the Article 96 framed in the 1972 Constitution was re-substituted annulling the Supreme Judicial Council, introduced by Ziaur Rahman through military orders between 1977 and 1978.
The 350-strong parliament passed the Constitution (Sixteenth Amendment) Bill, 2014 in division votes by 327:0 after running over two and half-hour discussion ignoring the opposition’s amendment motions for taking further public opinions.
Former Law, Justice and Parliament Affairs minister Anisul Hoque placed the bill before the House seeking its immediate passage with Speaker Shirin Sharmin Chaudhury in the chair.
After the division vote, the Speaker announced the result amid thumping of desks by the lawmakers.
In the division vote, not a single vote was cast against the amendment in the Article 96 that substituted the clauses, including clause 2, 3, 4, 5, 6, 7 and clause 8.
The Article 96 of the 1972 Constitution had the provision to impeach the justices of the Supreme Court with a majority of two-third votes of the total members of parliament in case of misconduct or incapacity.
Main opposition lawmakers, including Jatiya Party chairman Hussain Muhammad Ershad, leader of the opposition Raushan Ershad, JP Secretary General Ziauddin Ahmed Bablu, Kazi Feroz Rashid, MA Hannan, Raushan Ara Mannan, Yahya Chowdhury, Nururl Islam Milon, Pir Fazlur Rahman, independent lawmakers, including Rustam Ali Farazi, Haji Mohammad Selim, Tahzib Alam Siddique and Abdul Matin, Jatiya Samajtantrik Dal lawmaker Mayeen Uddin Khan Badal and Bangladesh Nationalist Front lawmaker Abul Kalam Azad moved with the amended motions for taking public opinions on the bill.
Major opposition Bangladesh Nationalist Party, which remained absent in the House due to its boycott to the 10th general polls, claimed that the government took the move to cling to power.
Supporting the move in restoring parliament’s authority, the opposition lawmakers told the House not to pass the bill in a hurried manner as it would mislead the people.
Moving the bill, the law minister said this act may be called the Constitution (Sixteenth Amendment) Act, 2014 and the following article 96 shall be substituted, namely
(1) Subject to the provisions of this article, a judge shall hold office until he attains the age of sixty-seven years
(2) A judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of parliament, on the ground of proved misconduct or incapacity.
(3) Parliament shall by law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehaviour or incapacity of a judge.
(4) A judge may resign his office by writing under his hand addressed to the President.
While the annulled Article 96(2) says, “A judge shall not be removed from his office except in accordance with the following provisions of this article. (3) There shall be Supreme Judicial Council, in this article referred to as the council, which shall consist of the chief justice of Bangladesh and the two next senior judges.”
The president under the constitutional provision may direct the council to inquire into the matter of gross misconduct and report its findings.
