The special bench of justices Moyeenul Islam Chowdhury, Quazi Reza-Ul Hoque and Md Ashraful Kamal gave the order by majority on Thursday over a petition challenging the validity of the 16th Amendment.
The High Court said the ‘parliamentary mechanism’ to remove judges is ‘an accident of history’.
The judges gave examples from other countries and said, “...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.”
“So we find merit in the Rule. The Rule, therefore, succeeds. Accordingly, by majority view, the Rule is made absolute without any order as to costs.
“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,” they said.
Justice Chowdhury and Justice Hoque agreed that the amendment was illegal, while Justice Kamal was for dismissing the writ petition, Additional Attorney General Murad Reza said.
*Bangladesh’s Constitution drafted in 1972 gave 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.
*The 16th Amendment, which was passed in September 2014, restored the Parliament’s power to sack Supreme Court judges.
*Constitution’s Section 96 (2) says, “A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehaviour or incapacity.”
*Section 96 (3) says Parliament may by law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehaviour or incapacity of a Judge.
*On Apr 25, 2015, the Cabinet cleared the draft of a law to address the issues of incompetence and misconduct of top court judges.
Attorney General Mahbubey Alam said that the State will file an appeal against the order.
“We will move the Supreme Court’s chamber judge on Sunday against this verdict,” he told the media.
Lawyer Manzill Murshid, who stood for the petitioners, said the verdict restored the power of the Supreme Judicial Council to remove corrupt and incompetent judges after one and a half years.
Law Minister Anisul Huq has termed the verdict ‘unconstitutional’.
Opposition MPs have staged a walkout in Parliament in when a bill to raise judges’ salaries was moved for voting.
Attorney General Alam said the High Court observed that the trial of corrupt or incompetent judges would become ‘political’ if the power to impeach judges was given to MPs, who ‘cannot go against party decisions in Parliament’.
Lawyer Murshid said the court observed the amendment ‘curbs’ the independence of the judiciary in ‘public perception’.
He also said the state was wrong to argue that most countries remove judges through Parliament.
According to the verdict, he said, 63 percent of the Commonwealth countries do not follow the procedure.
Alam argued that the petition is 'not maintainable' as Parliament is yet to pass a bill, which is under consideration, into law.
The 16th Amendment was passed on Sept 17, 2014, allowing Parliament to remove judges by a two-thirds majority on grounds of incapacity and misconduct.
It was notified by inclusion in the official gazette five days later.
In November the same year, nine Supreme Court lawyers filed a petition challenging the legal basis of the amendment.
After that, the High Court issued a rule on the government asking why the amendment shall not be declared unconstitutional.
Secretaries to the Cabinet, offices of the president and prime minister, ministry of law, justice and parliamentary affairs were asked to come up with explanations by two weeks.
Hearings on the rule commenced on May 21 last year, when the court announced names of five senior lawyers as amici curiae, or friends of court, to hear their opinions on the matters.
Of them, Kamal Hossain, M Amir-ul Islam, Rokanuddin Mahmud and Ajmalul Hossain QC gave their opinions to the court.
After the hearings, which lasted for 17 days, the court fixed Thursday to give its decision on the matter.