Staff Reporter :
The High Court [HC] on Sunday issued a rule upon the government seeking explanation by two weeks why the 16th amendment to the Constitution would not be declared illegal and void.
A HC bench comprising Justice Mainul Islam and Justice Ashraful Kamal issued the rule after hearing a writ petition lodged by nine Supreme Court lawyers, including Asaduzzaman Siddique, Aklas Uddin Bhuiyan and Sarwar Ahad Chowdhury, on November 5.
Cabinet Secretary, President’s Office Secretary, Prime Minister’s Office Secretary, Parliament Secretary, and Law, Justice and Parliamentary Affairs Secretary have been asked to reply in this regard within two weeks.
The HC bench also set November 26 to pass further necessary order in this regard.
The amendment to the Constitution brought by the ruling Awami League government provides the National Parliament [Jatiya Sangsad] with the power to remove judges of the Supreme Court for their misconduct or incapacity.
Manzill Murshid, counsel of the petitioners, said, “Though the Supreme Court had scrapped the Martial Law Ordinance, it had preserved Article 96 that deals with removing judges through the Supreme Judicial Council. It was also included in the reprinted Constitution.”
“But the 16th amendment was passed and a gazette notification was published all in a sudden,” he further said.
The petitioners in the writ said that the provision in the amendment might curb the independence of the judiciary.
On the other hand, Deputy Attorney General Motahar Hossain Saju represented the state. “I’ve told the court that the amendment has not been passed into law. And hence, a writ [hearing] cannot take place at this stage. The matter will be clear once it is enacted into law,” Saju said. The latest constitutional amendment has also abolished the Supreme Judicial Council, which was earlier formed to take action against the judges for same kind of acts.
Meanwhile, 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 Chairman 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 Supreme Judicial Council. Zia formed the council 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 long time legal debate, the HC in a historic verdict pronounced the Fifth Amendment illegal, where the Supreme Judicial Council 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.
It is to be noted that 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.
