Nine amicus curiae opined against the 16th amendment that empowered Parliament to impeach Supreme Court judges.
On September 17, 2014, the parliament passed the ‘Constitution (16th Amendment) Bill, 2014’ empowering the parliament to impeach judges of the Supreme Court for incapability or misconduct.
Nine Supreme Court lawyers filed a writ petition with the High Court on November 5, 2014, praying to consider the 16th Amendment as illegal and unconstitutional.
Following the writ petition, High Court declared the 16th amendment to the constitution illegal on May 5, 2016. The hearing on a government petition filed against the HC verdict started at the Appellate Division of Supreme Court on May 8.
The Supreme Court appointed 12 amicus curiae to hear their opinions. Of them one amicus curiae barrister Ajmalul Hossain QC talked in favour of the amendment, while barrister Rafiqul Haque and former law minister barrister Shafique Ahmed abstained from placing their views citing health reasons.
The proceedings will be concluded on Thursday after the state places its counter arguments before the appeals court.
In the hearing, amicus curiae former justice TH Khan said in a written statement that the Supreme Judicial Council should be strengthened if the state wants to ensure the independence of the judiciary. The power of the council should be increased, he said.
Dr Kamal Hossain said that the 16th amendment had hit the basic structure of the constitution. This amendment has undermined the freedom of the judiciary. Nobody can touch the basic framework of the constitution as it is the highest law of the country.
“if any part of the state thinks there is no limit to its power, constitutional rule is no longer there,” he remarked.
Senior lawyer Abdul Wadud Bhuiyan said the authority of forming the Supreme Judicial Council should be in the hands of the Chief Justice. The balance of power will be lost if it is given to the government.
Barrister M Amir-ul Islam said the Supreme Judicial Council will investigate and decide if any allegation is raised against any Supreme Court judge. The judiciary will decide on misconduct allegations against the judges. This is a system followed by almost all of the countries in the world.
Most of the countries have stepped away from parliamentary remediation. They have given the power to the Supreme Judiciary Council, he said.
Barrister Rokanuddin Mahmud said the absence of a Supreme Judicial Council will create anarchy in the judiciary.
Civil service, police, military all have their own method of removal of accused officers. Thus the judiciary should have its own body to decide on removal of judges. If the removal power goes to others hands the Chief Justice will lose control on the subordinate judges, he argued.
Former attorney general AJ Mohammad Ali said because of the Article 70 of the constitution, lawmakers cannot vote against the decision of the party, if even if they disagree with the decision.
The lawmakers will not be able to talk against the party’s decision when removing a judge under the 16th amendment.
AF Hasan Arif said the amendment is an interference on the independence of judiciary.
The independence of the judiciary is not needed for the judges themselves, but to protect the rights of the people. Under the pressure of parliament or the executive, the rights of the people should not be disturbed and the judiciary was that much independent to ensure that.
Senior lawyer MI Farooki said, the decision regarding the impeachment should be in the hand of the judiciary, not in the hand of politicians.
Barrister Fida M Kamal said the independence of judiciary is a fundamental part of the constitution.
“The Fourth amendment brought changes in the direction of governance including the judiciary. Changes were also made into the article 96. If you keep your hands tied like this, then you can not swim.”
Barrister Ajmalul Hossain said the 16th amendment is legal. The court should not have authority to scrap it. The parliament will decide on the removal.
“The Supreme Court will legalise the system of removing the judges after parliament takes decision to remove anyone. By the 16th Amendment, the original constitution has been restored. This amendment is legally valid,” he said.