Chief Justice (CJ) Surendra Kumar Sinha yesterday wanted to know that if in future allegations of "incapacity" or "misbehaviour" are made against Supreme Court (SC) judges, how would they be impeached if the ruling party or alliance does not have a two-thirds majority in Parliament.
“As per the 16th Amendment to the Constitution, Parliament needs a two-thirds majority to remove a SC judge for 'incapacity' or 'misbehaviour'. But what happens if no political party or alliance gains a two-thirds majority in future? This vacuum is worrying me,” the CJ made the observation during hearing on an appeal on the 16th Amendment that empowers Parliament to remove SC judges for "incapacity" or "misbehaviour".
The seven-member bench of the Appellate Division, headed by the Chief Justice, adjourned the hearing till Sunday. During yesterday’s hearing, advocate TH Khan, barrister Rokanuddin Mahmud and barrister M Amir-ul Islam placed their submission before the bench.
At one stage of the hearing, the matter of two-thirds majority came up before the court.
 “We are reserving the holy laws of the republic. But something incorporated into the 16th Amendment will create a vacuum if the ruling party or alliance does not have a two-thirds majority in future. This vacuum is worrying us,” the CJ said.  Barrister Rokanuddin Mahmud raised the question before the apex court during his submission as amicus curiae. "A political party may or may not get a two-thirds majority and there might even be a "hung" parliament in future. What happens in that case?" the CJ said. Rokanuddin Mahmud said if civil, military or police authorities can investigate misconduct of their officers, why the power to remove Supreme Court judges be given to Parliament members.
He also said that the apex court judges are most educated persons in society. They hold a high social status. The judges are working in a disciplined way. If the power to remove them goes to Parliament, their independence as well as discipline will vanish, he added.
Earlier in the morning, advocate TH Khan, after submitting his written statement, told the court that the verdict of 13th Amendment to the Constitution was not legal, as then Chief Justice, ABM Khairul Haque, put his signature on the copy of the verdict in the 16th month of his retirement, which was not legal.
The government assumed powers in accordance with the apex court verdict on the 13th Amendment. So, forming of this government was not legal and the activities of this government, including the 16th Amendment, were not legal, he added. On September 17, 2014, the Jatiya Sangsad passed the "Constitution (16th Amendment) Bill, 2014" without any opposition, empowering Parliament to impeach judges of the Supreme Court for "incapacity" or "misconduct". Nine SC lawyers filed a writ petition before the High Court on November 5, 2014, questioning the validity of the amendment.