Staff Reporter :
Challenging the legality of 16th Amendment to the Constitution, a Supreme Court lawyer on Wednesday filed a writ petition with the High Court seeking rule to adjourn the effectiveness of the amendment until the hearing.
SC lawyer Eunus Ali Akond filed the writ petition yesterday afternoon also pleading the HC to ‘cancel’ the controversial amendment.
He also urged the HC to issue a rule upon the government seeking an explanation as to why the amendment should not be declared ‘illegal’.
The petition named the Cabinet Secretary, Law Secretary, Parliament Secretary and Chief Election Commissioner [CEC] as respondents.
The court is likely to hear the petition on October 19.
The ruling Awami League government has brought the 16th Amendment to the Constitution to empower the national parliament Jatiyo Sangsad] to impeach SC judges for their ‘incapacity and misconduct’.
“According to Section 66 of the Constitution, no specific academic qualification is required to become an MP. But as per Section 95, a lawyer or a district judge needs 10 years experience to be a SC judge,” Eunus Ali Akond said in his petition.
Raising question he said, ” Then how could they [lawmakers] have the authority to impeach judges with this qualification?”
“A lawmaker who has no academic qualification cannot be empowered to impeach a SC judge, who is academically more qualified than him,” he said in the petition.
“The judiciary is totally independent as per verdict of the HC regarding the case of separation of judiciary from the administration. And so, it cannot be controlled by any organ of the state in line with the said SC verdict.”
“The 16th Amendment is totally repugnant of the Constitution as the President has the authority to appoint judges as per section 135[1]. The independence of the judiciary will be diminished, if the power to impeach the SC judges is given to the parliament,” he said.
The latest constitutional amendment has also abolished the Supreme Judicial Council [SJC].
Apart from the SC judges, according to the 16th Amendment, the JS also could remove the CEC and Election Commissioners, Public Service Commission Chairman and its members, Anti-Corruption Commission Chairmen and its Commissioners and Comptroller and Auditor General on similar grounds by applying same procedures.
Earlier, the Article 96 of the 1972 Constitution had allowed JS to impeach SC judges. But the Awami League government through the Fourth Amendment to the Constitution conferred the power on the President in 1975.
Later, President Ziaur Rahman in 1978 cancelled the provision bringing the Fifth Amendment to the Constitution and formed the SJC. Zia formed the SJC through a martial law proclamation when there was no parliament following the assassination of Father of the Nation Bangabandhu Sheikh Mujibur Rahman in 1975.
After a longtime legal debate, the High Court in a historic verdict pronounced the Fifth Amendment illegal, where the SJC also had lost its validity, although the article was not restored in the meantime.
The President of the Republic could be impeached through two-third majority in the JS as per Article 54 of the Constitution and the Speaker could be impeached with simple majority of JS members as per article 74 [Ga].
Apart from it, the 57 [2] article of Constitution has given power to bring no-confidence motion against the Prime Minister with simple majority of the parliament members.
Amid widespread criticism, Law Minister Anisul Haq placed the bill in the JS on September 7.
The JS unanimously passed the amendment bill on September 17. The gazette was published on September 22 when President Md Abdul Hamid gave his consent to the bill.
