16th amendment to the Constitution
Hearing on state appeal February 8
The Appellate Division of the Supreme Court yesterday fixed February 8 for hearing on an appeal filed by the government against the High Court verdict that had declared unconstitutional the 16th amendment to the Constitution that empowered parliament to remove the Supreme Court judges for misconduct and incapacity. A four-member bench of the Appellate Division headed by Chief Justice Surendra Kumar Sinha fixed the date saying that the hearing on the appeal over the 16th amendment of the Constitution would be held at the full bench comprising of all eight judges considering the gravity of the matter. Advocate Manzil Morshed stood for the petitioner while Attorney General Mahbubey Alam represented the state. Advocate Manzil Morshed said a regular bench of the Appellate Division is likely to hear the appeal on February 8. The High Court on May 5, 2016 declared unconstitutional the 16th amendment to the constitution that reinstated parliaments power to remove Supreme Court judges. The three-member HC bench of Justice Moyeenul Islam Chowdhury, Justice Quazi Reza-Ul Hoque, and Justice Md Ashraful Kamal pronounced the verdict after hearing a public interest litigation writ petition. Justice Quazi Reza-Ul Hoque agreed with the verdict pronounced by Justice Moyeenul Islam Chowdhury while Justice Md Ashraful Kamal disagreed with the verdict. Later, on August 11 last year, the High Court released the copies of the judgment of two Justices of a three-member special bench which had earlier declared the 16th amendment to the Constitution establishing Parliaments power to remove the Supreme Court judges illegal and contradictory to the Constitution. In its verdict, the HC said that the amendment is contrary to the provisions enshrined in the Constitution for the freedom of the judiciary. It said the provision to remove judges by parliament is an accident in the history although the law exists in several countries of the world.
In most of the Commonwealth countries, judges are not removed by parliaments. Noting that parliament members cannot go against the party decision as per the section 70 of the Constitution and they have to vote in favour of the party even if they do not approve of the matter, the court said judges will have to wait for MPs mercy if the 16th amendment remains in force. On September 17, 2014, the Jatiya Sangsad passed the Constitution (16th Amendment) Bill, 2014 without any opposition, empowering the Parliament to impeach judges of the Supreme Court due to their incapacity or misconduct. Nine Supreme Court lawyers filed the writ petition with the High Court on November 5, 2014, praying to consider the 16th Amendment as illegal and unconstitutional. After primary hearing, the HC bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal issued a rule asking the government to explain why the amendment should not be declared illegal and contrary to the constitution. The hearing on the rule began on May 21 last year. Four eminent lawyers -- Dr Kamal Hossain, Barrister M Amir-Ul Islam, Barrister Rokon Uddin Mahmud and Barrister Ajmalul Hossain QC made their depositions to the court as amici curiae.
