The Supreme Court has unanimously declared the 16th Amendment to the constitution illegal, which means parliament no longer has the power to impeach judges of the apex court.
A seven-member bench of the Appellate Division, led by Chief Justice Surendra Kumar Sinha, yesterday upheld a High Court judgement that had scrapped the amendment, rejecting an appeal filed by the state.
“From now on, the Supreme Judicial Council will deal with the impeachment matters, not parliament,” Manzill Murshid, one of the petitioners against the amendment, told reporters after the verdict.
The chief justice said the court had some observations based on which it had rejected the appeal.
The court also said it would expunge some observations made by the High Court regarding the petition.
Attorney General Mahbubey Alam expressed frustration over the Supreme Court's verdict, saying the Supreme Judicial Council had been scrapped by parliament and could not be restored automatically.
Claiming a vacuum has now been created, he said: “We will have a discussion with the Ministry of Law, Justice and Parliamentary Affairs to see if a review plea can be filed.”
He further said he was disappointed that the original constitution (1972), which allowed parliament to impeach Supreme Court judges, was not restored.
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The 16th Amendment was passed by parliament on September 17, 2014, empowering the members of parliament (MPs) to impeach the top court judges for incapability or misconduct via two-thirds majority.
The amendment triggered debate on whether parliament should have such authority, and nine Supreme Court lawyers filed a writ petition with the High Court on November 5 the same year challenging the legality of the constitutional change.
The High Court declared the amendment illegal on May 5, 2016. The government moved the Appellate Division against the High Court verdict on January 4, 2017.
On February 8, the Supreme Court appointed 12 senior lawyers as amici curiae, seeking their opinions over the legality of the 16th Amendment.
Hearing on the appeal began on May 8 and continued till June 1. During the hearing, nine of the amici curiae opined against the 16th Amendment, one in favour, while two refrained from giving an opinion.
During the hearing, the government counsel argued that the Martial Law authorities had inserted the Supreme Judicial Council concept when they were in power illegally, and the 16th Amendment was introduced to go back to the original constitution.
He said the amendment did not harm the original structure of the constitution.
In response, the writ petitioners' counsel said the provision in the 1972 constitution, which empowered lawmakers to impeach judges, was scrapped through the Fourth Amendment in 1975 as the provision proved to cause more harm than good.
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They further argued that ruling party lawmakers cannot vote against their party's decisions due to Article 70 of the constitution, even if they disagree with the said decisions. Same could happen in case of the impeachment of a Supreme Court judge, they added.
The Fourth Amendment, passed in 1975, vested the power of impeaching Supreme Court judges in the president. The Fifth Amendment, brought on during the regime of military strongman Ziaur Rahman, made way for the formation of Supreme Judicial Council to impeach judges.
This amendment was declared illegal by the court later.
What the High Court verdict said
The High Court in its verdict said the three-member Supreme Judicial Council led by the chief justice was the best option for impeaching a judge for incapacity or misconduct.
“The parliamentary mechanism for the removal of judges is an accident of history, though it is in vogue in some countries of the world,” it said.
Examining the constitutionality of the 16th Amendment, the court found that a peculiar political culture was prevalent in the country. In public perception, the independence of judiciary had been curbed by the amendment, the verdict said.
“If the judiciary is not independent in public perception, it cannot be sustained at all,” the High Court said.
The court observed that there was no consensus on pressing national issues between the major political parties, the society was sharply polarised and there might not be two-thirds majority of the ruling party at all times.
The verdict said people would suffer because of the 16th Amendment.