16th Amendment illegal: Confusion grows over suitable process to impeach judges

A cloud of uncertainty has risen over what procedure would be suitable to impeach a top court judge, should the need be, after the Appellate Division declared that the 16th Amendment to the Constitution is indeed illegal.

The amendment, which had given the parliament powers to impeach judges on the grounds of incompetence and misconduct, was first ruled illegal by the High Court in May last year.

The chief justice-led seven-member bench of the apex court upheld that verdict on Monday.

After Monday’s ruling, Barrister M Amir-Ul Islam said the Supreme Judicial Council provision should be considered active now.

Counsel Manzill Murshid, who had challenged the amendment along with eight other lawyers, agreed.

But Attorney General Mahbubey Alam said he did not think a constitutional provision that had been annulled by the parliament would automatically get reactivated.

Before the 16th amendment was passed in 2014, the constitution had provided that a Supreme Judicial Council would be formed to handle the removal process of any judge when necessary.

Nine Supreme Court lawyers had moved the High Court challenging the legal basis of the amendment after it was passed and the parliament’s authority was restored.

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

“We have to presume that the Supreme Judicial Council system is active now with the 16th amendment having been declared illegal," Barrister Amir-Ul Islam told reporters on Monday.

The former Supreme Court Bar Association president is one of the 10 Supreme Court lawyers whose opinions the Appellate Division had heard as amici curiae or 'friends of the court' on the matter.

Barrister Islam had favoured the High Court ruling that found the amendment illegal and opted for the judicial council.

Advocate Murshid said, "The court has unanimously scrapped the state's appeal. The law, allowing the parliament to impeach top court judges, is illegal and now void.”

“The 15th amendment to the Constitution, which protected the Supreme Judicial Council, has been upheld," he added.

Speaking to the media, Attorney General Alam said he was disappointed by the top court's decision.

The top law officer of the state, however, said he does not think the verdict implies that the Supreme Judicial Council will now be responsible for sacking top court judges.

"In my opinion, the constitutional provisions annulled by the parliament will not be reinstated automatically. I think there is a (constitutional) vacuum. The court cannot be a replacement for the parliament."

During the hearings, Alam had made similar statements. He had said neither the judicial council system nor the law was in practice. “In the absence of the law, the president as the recruiting authority can remove a judge.”

After the 16th amendment was passed, the cabinet had ratified a draft law that detailed the new procedure for impeachment of judges. But the planned law was shelved after the High Court verdict.

Aggrieved by the attorney general’s argument, Chief Justice Surendra Kumar Sinha had said, “The president will sack a judge without a law being there? How many thousand years are you dragging things back to? What do you make of the judiciary?”

“This is my opinion,” the attorney general at the time had replied. “You may touch on the issue in the judgment.”

The Appellate Division expunged some of the observations made by the High Court in its verdict and unanimously rejected the state’s appeal on Monday. But lawyers said the matter will be clearer once the full verdict is published.

Asked whether the state will seek a review, the attorney general later said, "We will let you know after discussing it with the law ministry and the government."

When asked, Law Minister Anisul Huq told reporters that this verdict would not create any major issue as the Supreme Judicial Council provision has been in effect.

The previous one before the 16th amendment, he said, had its own take on the matter. “As the parliament annulled Section 96, the new Supreme Judicial Council provision will be something different.”