Landmark verdict for saving judiciary and rule of law

The Supreme Court yesterday upheld the High Court  verdict that declared illegal the 16th Amendment to the Constitution. 

The seven-member full bench of the Appellate Division headed by Chief Justice Surendra Kumar Sinha unanimously upheld the High Court verdict dismissing the appeal filed on behalf of the State. The Chief Justice of Bangladesh pronounced the decision dismissing the Parliament's power to remove Supreme Court judges. Announcing the summary of the apex court verdict, the Chief Justice said they rejected the appeal with some findings, hearing the arguments for and against the State move during more than 11 days.
 
Those who advised the government to pass the law empowering the one-house parliament to try and remove the judges of the Supreme Court wanted audaciously, forgetting the democratic struggle of the people, to make the judiciary subservient to the government. The inner threat was to deny the people the assurance of the rule of law and fundamental rights as guaranteed by the constitution. What is most significant is the truth that the present parliament is not itself duely elected.

Many will agree that the law was passed at the initiative of those undemocratic forces who misled Bangabandhu to assume the power of dismissing the judges of the Supreme Court under one party rule. Sheikh Hasina the Prime Minister should have been cautious about the law and its inner conspiracy.

By claiming the power of impeaching the judges of the Supreme Court, the parliament denied the basic principle of the separation of powers and independence of the judiciary. The efforts of the undemocratic forces have been foiled by the judgement in favour of the democratic constitution and protection of the people's fundamental rights.

What the members of the parliament must not forget is that the constitution itself has made the Supreme Court the guardian of the constitution and not trusted the parliament.

Earlier, nine Supreme Court lawyers filed a writ petition with High Court Division on November 5, 2014, questioning the validity of the 16th Amendment to the Constitution. In a major ruling on May 5, last year, the High Court declared the 16th Amendment illegal and contradictory to the Constitution. Following the verdict, the State on January 4, this year, filed the appeal with the Appellate Division of the Supreme Court challenging the High Court decision.

Later, on June 1, the Appellate Division ended the hearing on the appeal and  declared illegal the 16th Amendment to the Constitution. The Appellate Division on February 8, appointed 12 senior lawyers as amici curiae (friends of court) seeking their opinions about the legality of the 16th Amendment to dispose of the appeal filed against the High Court order.

The 12 senior lawyers  are: former Justice TH Khan, Dr Kamal Hossain, Barrister M Amir-ul Islam, Barrister Rafiqul Haque, Barrister Rokanuddin Mahmud, former attorney general AJ Mohammad Ali, Barrister Fida M Kamal, Barrister Ajmalul Hossain QC, Barrister Shafique Ahmed, former attorney general AF Hasan Arif, and senior advocates MI Farooki and  Abdul Wadud Bhuiyan.

However, Barrister Rafiqul Haque and Barrister Shafique Ahmed did not make any submission before the court on the matter.

Amici Curiae Barrister Ajmalul Hossain QC made comments supporting the amendment, while other nine Amicus Currie were very much critical about the 16th Amendment before the court. The ten Amici Curiae placed several relevant arguments, facts, decisions and documents in support of their respective stances.
The Constitution of the People's Republic of Bangladesh passed in 1972 had given the MPs the power to impeach the judges of the Supreme Court and decide their term in office. But, in 1975, through the Fourth Amendment of the Constitution the power given to the President of the country. However, later, the provision of Supreme Judicial Council was included in the Constitution.

On September 17, 2014, the Jatiya Sangsad passed the Constitution (16th) Amendment Bill 2014 without any opposition, empowering the Parliament to impeach the judges of the Supreme Court for their 'incapacity' or 'misconduct'.