Dhaka, May 5 (UNB) – The High Court on Thursday declared the 16th
amendment to the Constitution establishing Parliament’s power to
remove the Supreme Court judges illegal and contradictory to the
national charter.
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.
Earlier on March 10, the HC fixed today (Thursday) to pass its order
on the writ petition filed challenging the legality of the
much-talked-about 16th amendment.
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.
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.
Meanwhile, Law Minister Anisul Huq and Attorney General Mahbubey Alam
said the state will appeal against the HC order.
While delivering 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.
The amendment was brought aiming to ensure the dignity of the judges
and freedom of the judiciary.
Earlier, Jatiya Party MP Fakhrul Imam and Kazi Firoz Rashid and Jasod
MP Mainuddin Khan Badal harshly lambasted the HC’s verdict and
demanded the statement of the Law Minister under the section 300 in
this regard.
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 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.
