Law Commission chief criticises SC verdict on 16th constitutional amendment

Law Commission Chairman Justice ABM Khairul Haque has censured the Supreme Court verdict that declared illegal the 16th Amendment to the Constitution.

Former chief justice Haque heavily criticised some of the observations made by current Chief Justice Surendra Kumar Sinha at a media briefing on Wednesday.

The verdict for taking away parliament's powers to sack top judges appears "preconceived" to the Law Commission chief.

Some of Chief Justice Sinha's comments on MPs were "irrelevant" and the terms he used were "immature", his former colleague at the top appeals court added.

Bangladesh being a people's republic gives public representatives the authority to hold judges accountable, but that is no longer the case because of the Supreme Court's verdict, said Haque.

“The constitution says this is the People's Republic of Bangladesh. But after this verdict, it seems our country is going to be the Judges' Republic of Bangladesh."

"This is the first verdict I saw which goes back to martial law over the original constitution."

The verdict's observation sidesteps the main subject to comment on parliament, electoral commission and the state of society, said Haque, who was chief justice from 2010 to 2011. 

"If the honourable chief justice says the parliament is immature and its members uneducated, then I have to say, as per obvious logic, that the judges too are immature. Because they also talked about MPs in their verdict, which they didn't need to."

The lack of mutual respect and use of unparliamentary language in criticisms show immaturity on both sides, said the Law Commission chief.

Justice Haque warned against the move taken to revive the Supreme Judicial Council for sacking top judges, in the absence of a law, which, he said, should have followed the court's verdict on 16th amendment.

"When there wasn’t any Supreme Judicial Council, the judiciary was still independent," he pointed out.

The verdict without being specific said that the judiciary's independence is at stake without the Supreme Judicial Council, he said. "My statement is clear, there is no relationship between the council and the judiciary's independence.

"Moreover, it is being used as a weapon disguised as the judiciary's independence."

The amendment to Article-96 of the Constitution brought about by parliament on Sept 17 of 2014, which had returned to MPs the power to sack judges over incapacity, is known as the 16th Constitutional Amendment.  

The move was declared illegal by High Court last year following a writ petition. The verdict was then upheld by the Appellate Division on Jul 3 in a major blow to the government.

On Aug 1, a 799-page copy of the full verdict was released. It showed that the court has brought back the Supreme Judicial Council by reinstating six sections under Article-96.

The council headed by the chief justice will investigate a judge accused of misconduct or incapacity, and then recommend his or her removal to the president.

The Appellate Division formed a new 39-point code of conduct for judges, any violation of which would be considered misconduct.

The council convened for its first meeting at the chief justice's office on Sunday, according to reports in the media.

"Before this verdict, and even before the hearing ... I noticed how judges were making derogatory remarks about parliament members. So did they already have an idea about MPs being ineffective, immature, uneducated and ignorant before reaching their verdict?," asked the Law Commission chief.

"This notion was already there, there is no need to hold hearings for it. Whatever it may be, this is certainly not how a judge should behave."

The government is yet to provide an official reaction to the verdict. Law Minister Anisul Huq is scheduled to brief the media on Thursday.

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