The High Court on Thursday released the copies of the judgment of two Justices of a three-member special bench which had earlier declared the 16th amendment to the Constitution establishing Parliament’s power to remove the Supreme Court judges illegal and contradictory to the national charter. Earlier on May 5, a three-member special HC bench, headed by Justice Moyeenul Islam Chowdhury, passed the majority verdict following a writ petition. The two other judges of the bench were Justice Dr Quazi Reza-Ul Hoque and Justice Md Ashraful Kamal. Dhaka, UNB News Agency Reported.
Justice Moyeenul Islam and Justice Qazi Raza-Ul Hoque gave their judgment in favour of declaring the 16th amendment illegal. The full copies of their judgment were published on the website of the Supreme
Court on Thursday. However, judgment of junior-most of the bench Justice Ashraful Kalam, who held that the amendment was legal, has not been published. After the publication of the judgments on the internet, Attorney General Mahbubey Alam told reporters that the High Court gave its verdict based on majority decision of the three Justices and the judgments of two Justices have been published with their signature.
The decision to file regular appeal in connection with the verdict will be taken after reading the judgment of the deferring Justice which is yet to be published, he added. Earlier in its order on March 10 last, the court said the amendment is contrary to the provisions enshrined in the Constitution for the freedom of the judiciary. It said the provision to remove judges by parliament is an accident in the history although the law exists in several countries of the world.
In most of the Commonwealth countries, judges are not removed by parliaments. Noting that parliament members cannot go against the party decision as per the section 70 of the Constitution and they have to vote in favour of the party even if they do not approve of the matter, the court said judges will have to wait for MPs’ mercy if the 16th amendment remains in force. On September 17, 2014, the Jatiya Sangsad passed the ‘Constitution (16th Amendment) Bill, 2014′ without any opposition, empowering Parliament to impeach judges of the Supreme Court due to their incapacity or misconduct.
Nine Supreme Court lawyers filed the writ petition with the High Court on November 5, 2014, praying to consider the 16th Amendment as illegal and unconstitutional. The petition also sought an order staying the operation of the 16th Amendment and also against enacting any law in a bid to remove the Supreme Court judges, as per this amendment, until disposal of the rule. After primary hearing, the HC bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal issued a rule asking the government to explain why the amendment should not be declared illegal and contrary to the constitution, and cancelled.
The hearing on the rule began on May 21 last year. Four eminent lawyers — Dr Kamal Hossain, Barrister M Amir-Ul Islam, Barrister Rokon Uddin Mahmud and Barrister Ajmalul Hossain QC made their depositions to the court as amici curiae. In their observations, Dr Kamal Hossain and Barrister M Amir-Ul Islam said there can be no law to remove judges unless there is a law to recruit judges. Dr Kamal Hossain had also said the judiciary will be left in a fragile condition through the 16th amendment. Echoing the eminent lawyer, the court said the Chief Justice-led Supreme Judicial Council is the best way to remove judges. As the 16th amendment is contrary to the basic structure and power segregation principle of the Constitution, so it is declared illegal and cancelled, the court said in its ruling.
Meanwhile, the Cabinet on April 26 approved the draft of ‘The Supreme Court Judges (Investigation) Bill, 2016’, having provisions to investigate the allegations of ‘misconduct’ by the judges of the High Court and the Appellate Division of the Supreme Court, and their impeachment by parliament.