MPs resent SC verdict declaring their power to impeach judges illegal

The members of parliament have begrudged last week’s Appellate Division decision to uphold a High Court verdict that declared the 16th Amendment to the Constitution illegal.

Several lawmakers during an unscheduled discussion in parliament on Sunday also expressed frustration over the role of the amici curiae or 'friends of the court' in the case and called them ‘opportunist’.
 
The same parliament had passed the 16th amendment three years ago restoring its powers to impeach top court judges on the grounds of incompetence and misconduct.
 

After the High Court in May last year declared the amendment illegal, the MPs had reacted sharply to the verdict. They even walked out of parliament in protest.

In a bid to calm them at the time, Law Minister Anisul Huq had assured them that the verdict would be overturned if challenged in the Appellate Division.

But on Jul 3, the chief justice-led seven-strong bench of the apex court upheld that verdict.

On Sunday evening, Jatiya Samajtantrik Dal MP Moin Uddin Khan Badal started the discussion on the issue when parliament session resumed after the break for Maghrib prayers.

Leader of the Parliament and Prime Minister Sheikh Hasina joined the session in the middle of the discussion.

After a two-and-a-half-hour discussion on a point of order, Speaker Shirin Sharmin Chaudhury hinted at having a scheduled discussion on this issue later.

Bangladesh’s Constitution drafted in 1972 had empowered the MPs to impeach judges. But the fourth amendment in 1975 vested that power with the president.

Then the fifth amendment, brought on during General Ziaur Rahman’s regime, had legalised the formation of a Supreme Judicial Council to impeach judges.

The Awami League government passed the 16th amendment in parliament in 2014, adding Section 96 and restoring the MPs’ power to remove judges.

JaSoD MP Badal, during the discussion, said, “The judiciary and the Supreme Court must make it clear where and how Section 96, which has been annulled and was also in the original constitution, has struck the basic structure.”

Addressing the Appellate Division, he argued, “We didn’t want a dependent judiciary. You are the constitution’s custodian. We don’t deny that. But can you repeal a law that has been formulated by parliament? Has the constitution given you (that power)?

“It said you can look into something if that harms the basic structure (of the constitution). Parliament wants to understand what does it mean by structure?”

Badal continued, “Didn’t this parliament raise (the judges’ retirement age) to 67 years? Is it interfering with that issue? Didn’t this parliament give money (to the judiciary) to spend independently? Didn’t it pass (the bill to hike) salaries and allowances some days ago? It has done as much as it could.

“It’s not right if you talk big. It’s as if you have pitted the whole judiciary against the constitution.”

“Your (top court) own verdict has declared that Ziaur Rahman’s regime and ascension to power are illegal. But his Supreme Judicial Council is legal? There is a thing called natural justice. Can you try yourself? Have you become Allah?” the JaSod lawmaker asked.

“Are you pulling up parliament on sovereignty? The people are sovereign. I’ll leave it with history and time to decide how acceptable the people will find this verdict.”

As the court ruling evoked sharp political reactions, nine Supreme Court lawyers filed a petition on Nov 5, 2014, challenging the 16th amendment’s legal basis.

On May 5, 2016, a three-strong High Court bench in a majority verdict declared the 16th amendment illegal. The state later appealed against it.

But on July 3, the Appellate Division upheld the High Court rule.

Jatiya Party MP Ziauddin Ahmed Bablu on Sunday criticised the amici curiae whose opinion the court had taken in this case.

“These amici curiae were involved in the constitution’s formulation. Dr Kamal (Hossain) has changed his colours many times. The Supreme Court calls him. He has whitened black money. They roll up their sleeves whenever military rule is imminent.”

“Supreme Judicial Council does not go along with democracy. The people own this country. Is it possible that I’ll try myself? We don’t want to diminish independence. We want to establish good governance,” he said.

Bablu added, “The judiciary’s decision will go against the people and the constitution of 1972. It’s our duty to object to it. We hope you (top court) will show respect to the people and the parliament by reviewing (the verdict).”

Addressing the judiciary, he said, “Don’t play games with parliament’s sovereignty. Don’t do politics. Establish justice. Only Allah is not accountable. Are you greater than Allah that you won’t be held to account?”

During the hearings of this critical case, the Appellate Division had heard opinions of 10 Supreme Court lawyers as amici curiae.

Nine of them including Dr Kamal had called for annulling the 16th amendment, favouring the Supreme Judicial Council. The eight others are TH Khan, AFM Hasan Arif, M Amir-Ul-Islam, Rokanuddin Mahmud, Fida M Kamal, AJ Mohammad Ali, MI Faruqi and Abdul Wadud Bhuiyan.

Only Ajmalul Hossain QC supported the amendment. Barristers Rafiq-Ul Haque and Shafique Ahmed did not give their opinions.

Joining Sunday’s discussion in parliament, Commerce Minister Tofail Ahmed said, “I have nothing to say about the Supreme Court’s verdict. My problem is with the amici curiae who have lied. They have tried to give false information to the nation.”

“Dr Kamal Hossain has told reporters that we are following what India has. India doesn’t have this one right now. How can someone like him lie this way? Amir-Ul-Islam has also said something very objectionable. I don’t want to say that.

“They are opportunists. They made the Constitution in 1972 in one way, but now they are speaking differently.”

The minister said, “The amici curiae prefer Ayub Khan’s system. They have lied while doing all these. People without ethics are jeered in society. The amici curiae have carried out their duties while providing wrong information. I’m saddened by this.”


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