SC justices’ removal process still unclear

The 16th Amendment has created a lot of confusion as to what happens now with regards to the process in which Supreme Court justices will be impeached. Jurists, especially senior lawyers, have been making contradictory statements over which branch of the state will take the final decision to remove a judge on grounds of incapacity or misconduct. Some senior lawyers think that the Supreme Judicial Council (SJC) has been restored automatically as the amendment becomes invalid. Hence, the government’s intervention is not necessary to restore the SJC system now. On the other hand, a number of prominent lawyers, including some appointed by the government, say the council system was scraped on September 17, 2014, when the House  passed the ‘Constitution (16th Amendment) Bill, 2014’ empowering the parliament to impeach judges. In his post-verdict reaction, Attorney General Mahbubey Alam had said a vacuum over the question of judges’ removal was created following the verdict. “The council is still not the authority. A constitutional section cannot be restored on its own if any amendment is scraped. Now, the government will take measures to fill up the gap. We should wait,” he said. Law Minister Anisul Huq said the full verdict on the amendment will bring an end to the debate. “Until the Supreme Court publishes the full text of the verdict, it will not be wise to comment on the way the justices will be dismissed,” he said. On July 3, the Appellate Division of the apex court dismissed a government appeal against a High Court verdict on a writ petition that declared the amendment illegal, unconstitutional and against the principles of separation of the state power and the independence of the judiciary. According to the verdict, the three-member SJC headed by the chief justice was the best option for impeaching a judge. The parliamentary mechanism for the removal of judges is an accident of history, though it is in vogue in some countries. In public perception, the independence of the judiciary had been curbed by the amendment. If the judiciary is not independent in public perception, it cannot be sustained at all, the verdict had said. Following the verdict the writ petitioner, Manzil Murshid, on the same day had said: “From now on the Supreme Judicial Council will deal with the impeachment matters, not parliament.” Senior lawyer Barrister M Amir-ul Islam, one of the six amicus curiae who was in favour of the council during the appeal hearing on a writ challenging the amendment at the apex court, also said that after the verdict the SJC has been restored automatically. “It is mentioned in the law that if any constitutional amendment is declared invalid and unconstitutional, the previous or original version will be restored automatically. In this case, the legislature or the executive have nothing to do with it,” he told the Dhaka Tribune. Eminent jurist Dr Kamal Hossain, another amicus curiae, who also opined against the amendment during the appeal hearing, however, told the newspaper that there is no scope of discussion before the apex court releases its full verdict. Asking people to wait some more days for the full verdict to get released, he said that everything will be clear if the full verdict is studied along with the Article 111 of the constitution. The 1972 constitution had empowered the parliament to remove judges, which was bestowed on the president in 1975 through the fourth amendment to the constitution. During his martial law regime, military dictator Ziaur Rahman introduced the SJC in 1978. The fifth amendment made by Zia was scrapped by the Supreme Court in 2010. The ruling had voided all his decisions. However, SJC remained. Through 15th amendment, the Awami League government retained the SJC and in the 16th Amendment the impeachment power was given back to the parliament.