Dhaka – The High Court on Thursday declared the 16th amendment establishing Parliament’s power to remove the Supreme Court judges illegal and contradictory to the national Constitution.
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.
A three-member special HC bench, headed by Justice Moyeenul Islam Chowdhury, passed the order following a writ petition. The two other judges of the bench were Justice Dr Quazi Reza-Ul Hoque and Justice Md Ashraful Kamal.
In its order, 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.
Law Minister Anisul Huq and Attorney General Mahbubey Alam said the state will appeal against the HC order.
Making a statement in Parliament under section 300 of the rules of procedure following harsh criticism by some MPs over the HC’s verdict, Anisul said, “They (HC) termed it (the 16th amendment) illegal, but it is not illegal at all… it (today’s judgment) is not maintainable.”
“As we believe in the freedom of judiciary, we’ll follow legal process and will lodge appeal with the Appellate Division. No conspiracy against the democracy will be tolerated,” he said.
The minister said nobody opposed the 16th amendment to the Constitution when it was passed in Parliament in September, 2014 just to restore the provision which had been in the 1972 Constitution. That provision was scrapped in 1976 and approved through the 5th Amendment passed in 1979. The provision then was to deal with misconduct judges by a Supreme Judicial Council headed by the Chief justice, to be called by the President at the recommendation of tje CJ to start proceedings and take action.
The Law Minister said the 2014 amendment was brought aiming to ensure the dignity of the judges and freedom of the judiciary.
Jatiya Party MP Fakhrul Imam and Kazi Firoz Rashid and Jatiya Samajtantrik Dal MP Mainuddin Khan Badal harshly criticised the HC verdict and demanded a statement of the Law Minister. JP and JSD both share power of government and sit in the opposition bench of Parliament.
Earlier the Attorney General said, “We’re aggrieved at the verdict. We’ll file appeal with the Chamber court on Sunday seeking a stay of the judgment. We can directly file the appeal as the High Court in its order gave us the certificate for appeal.”
On September 17, 2014, the Jatiya Sangsad (Parliament) passed the ‘Constitution (16th Amendment) Bill, 2014′, 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 in 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’, providing for inquiry of allegations of ‘misconduct’ by the judges of the High Court and the Appellate Division of the Supreme Court, and their impeachment by Parliament. – Greenwatch Dhaka and UNB news agency