16th Amendment appeal hearings deferred by two months

The hearing of an appeal against the verdict ruling Parliament's power to impeach to court judges as illegal has been deferred.

On Tuesday, the seven-member full appeals bench, led by Chief Justice Surendra Kumar Sinha, was scheduled to hear arguments in the appeal filed by the State.

Attorney General Mahbubey Alam pleaded for more time citing several other 'important cases' pending with him when the court granted him two months.

The Amendment, passed in 2014, allows Parliament to remove top court judges on grounds of incompetence and misconduct.

In November the same year, nine Supreme Court lawyers filed a petition with the High Court challenging the legal basis of the amendment and secured a verdict in their favour in May last year.

The State moved the Appellate Division challenging the decision.

Munjil Morshed, the counsel of the lawyers who challenged the amendment, said after Tuesday's hearing: "The matter will be heard on May 8."

During the previous hearing on Feb 8, the court said it will hear opinions of several senior lawyers over the State's appeal against the High Court verdict declaring 16th Amendment as illegal.

The court announced names of 12 lawyers as amici curiae or 'friends of the court' to hear their opinions on the matter.

They are Kamal Hossain, M Amir-Ul-Islam, AF Hasan Arif, Ajmalul Hossain QC, Rafiq-Ul Haque, Abdul Wadud Bhuiyan, Rokonuddin Mahmud, TH Khan, MI Faruqi, AJ Mohammad Ali and Fida M Kamal.

On Tuesday, Hossain submitted his opinions in written while Mahmud appeared in the hearing.

The court has asked the 11 other senior lawyers to submit their opinions as soon as possible.

Bangladesh’s Constitution drafted in 1972 had given the MPs the power to impeach judges and decide their term in office. But after the Fourth Amendment in 1975, the power was vested with the president.

The Fifth Amendment, brought on during Gen Ziaur Rahman’s regime, legalised the formation of a Supreme Judicial Council to impeach judges.

Then the 16th Amendment was passed on Sep 17, 2014, allowing Parliament to remove judges by a two-thirds majority on grounds of inefficiency and misconduct. 

On May 5 last year, the special High Court bench of justices Moyeenul Islam Chowdhury, Quazi Reza-Ul Hoque and Md Ashraful Kamal by a majority declared the 16th Amendment as illegal.

The verdict read, “...we have no hesitation in holding that the Sixteenth Amendment is a colourable legislation and is violative of the principle of separation of powers among the three organs of the State, namely, the Executive, the Legislature and the Judiciary and the Independence of the Judiciary as guaranteed by Articles 94 (4) and 147 (2), two basic structures of the Constitution and the same is also hit by Article 7B of the Constitution.”

“It is hereby declared that the Constitution (Sixteenth Amendment) Act, 2014 (Act No. 13 of 2014) (Annexure-‘A’ to the Writ Petition) is colourable, void and ultra vires the Constitution of the People’s Republic of Bangladesh.”

The State moved the Appellate Division challenging the verdict, which came up for a hearing at the four-member bench led by the chief justice on Jan 5.

The court then said the Appellate Division's full bench will hear the matter on Feb 8.

On Feb 8, the State sought eight weeks time for preparation, which the court granted and fixed Mar 7 for the hearing.

It said then that the petitioner and the State will get an hour each that day to present their statement and that the counsels will have to file their argument in written.

The hearings were deferred once again on Tuesday upon the State's plea.