M Faruque Hossain :
The High Court Division of the Supreme Court on Thursday released the full text of its verdict that declared the 16th amendment to the Constitution, which allowed the Parliament to remove the Supreme Court judges on grounds of incapacity or misconduct, illegal and unconstitutional.
A three-member bench headed by Justice Mayeenul Islam Chowdhury delivered the verdict by majority on May 5. The two other judges are Justice Quazi Reza-Ul Hoque and Justice Md Ashraful Kamal.
The 165-page verdict written by Justice Mayeenul Islam Chowdhury was uploaded on the SC website on Thursday.
The verdict read, “…we have no hesitation in holding that the sixteenth amendment is a colourable legislation and is violative of the principle of separation of powers among the three organs of the State, namely the Executive, the Legislature and the Judiciary, and the Independence of the Judiciary as guaranteed by Article 94 (4) and 147 (2), two basic structures of the Constitution and the same is also hit by Article 7B of the Constitution.”
“So we find merit in the Rule. The Rule, therefore, succeeds. Accordingly, by majority view, the Rule is made absolute without any order as to costs. It is hereby declared that the Constitution (Sixteenth Amendment) Act, 2014 (Act No.13 of 2014) Annexure-‘A’ to the Writ Petition) is colourable, void and ultra vires the Constitution of the People’s Republic of Bangladesh.”
In his part of judgment, Justice Md Ashraful Kamal, who deferred with two other judges, said that the then President Ziaur Rahman had taken over the State power illegally and amended the Constitution incorporating a provision of the Supreme Judicial Council for removing a SC judge.
Zia had violated the army rules, amending the constitution which is illegal and unconstitutional, he said in his judgment.
“The 16th amendment to the Constitution empowering the Parliament to remove a judge for his misconduct and incapacity has made the Constitution free from the black spot and reestablished the real independence of the judiciary,” Justice Kamal said. Attorney General Mahbubey Alam said the State would appeal against the HC order.
The Constitution of Bangladesh was drafted in 1972 giving the member of parliaments the power to impeach judges and decide their term in office. But after the Fourth Amendment in 1975, the power was vested with the President.
The Fifth Amendment, brought on during the regime of General Ziaur Rahman, legalized the formation of a Supreme Judicial Council to impeach judges.
Then the 16th Amendment was passed on September 17, 2014, allowing the Parliament to remove judges by a two-thirds majority on grounds of inefficiency and misconduct.
The Cabinet cleared the draft of a law to address the issues of incompetence and misconduct of top court judges.
Nine Supreme Court lawyers filed a petition challenging the legality of the amendment on November 5, 2014. Four days later, the HC issued a rule asking why the amendment would not be declared unconstitutional.
The High Court Division of the Supreme Court on Thursday released the full text of its verdict that declared the 16th amendment to the Constitution, which allowed the Parliament to remove the Supreme Court judges on grounds of incapacity or misconduct, illegal and unconstitutional.
A three-member bench headed by Justice Mayeenul Islam Chowdhury delivered the verdict by majority on May 5. The two other judges are Justice Quazi Reza-Ul Hoque and Justice Md Ashraful Kamal.
The 165-page verdict written by Justice Mayeenul Islam Chowdhury was uploaded on the SC website on Thursday.
The verdict read, “…we have no hesitation in holding that the sixteenth amendment is a colourable legislation and is violative of the principle of separation of powers among the three organs of the State, namely the Executive, the Legislature and the Judiciary, and the Independence of the Judiciary as guaranteed by Article 94 (4) and 147 (2), two basic structures of the Constitution and the same is also hit by Article 7B of the Constitution.”
“So we find merit in the Rule. The Rule, therefore, succeeds. Accordingly, by majority view, the Rule is made absolute without any order as to costs. It is hereby declared that the Constitution (Sixteenth Amendment) Act, 2014 (Act No.13 of 2014) Annexure-‘A’ to the Writ Petition) is colourable, void and ultra vires the Constitution of the People’s Republic of Bangladesh.”
In his part of judgment, Justice Md Ashraful Kamal, who deferred with two other judges, said that the then President Ziaur Rahman had taken over the State power illegally and amended the Constitution incorporating a provision of the Supreme Judicial Council for removing a SC judge.
Zia had violated the army rules, amending the constitution which is illegal and unconstitutional, he said in his judgment.
“The 16th amendment to the Constitution empowering the Parliament to remove a judge for his misconduct and incapacity has made the Constitution free from the black spot and reestablished the real independence of the judiciary,” Justice Kamal said. Attorney General Mahbubey Alam said the State would appeal against the HC order.
The Constitution of Bangladesh was drafted in 1972 giving the member of parliaments the power to impeach judges and decide their term in office. But after the Fourth Amendment in 1975, the power was vested with the President.
The Fifth Amendment, brought on during the regime of General Ziaur Rahman, legalized the formation of a Supreme Judicial Council to impeach judges.
Then the 16th Amendment was passed on September 17, 2014, allowing the Parliament to remove judges by a two-thirds majority on grounds of inefficiency and misconduct.
The Cabinet cleared the draft of a law to address the issues of incompetence and misconduct of top court judges.
Nine Supreme Court lawyers filed a petition challenging the legality of the amendment on November 5, 2014. Four days later, the HC issued a rule asking why the amendment would not be declared unconstitutional.
