On Monday, a seven-member bench led by Chief Justice Surendra Kumar Sinha scrapped the state's petition against the verdict that declared the 16th amendment to the constitution illegal.
The amendment, passed in 2014, allows members of parliament to remove judges on grounds of incompetence and misconduct.
In November of the same year, nine Supreme Court lawyers filed a petition with the High Court challenging the legal basis of the amendment. They secured a verdict in their favour in May last year.
The state then went to the Appellate Division contesting the decision.
The verdict was on top of the agenda for the day, which means it was the first matter after the court convenes at 9am. But the Appellate Division full bench convened more than an hour late on Monday.
Chief Justice Sinha delivered the verdict at 10:25am in a packed courtroom.
It expunged some of the observations made by the High Court in its verdict and unanimously rejected the state’s appeal.
Counsel Manzill Murshid, who represented the lawyers moving the petition against the 16th amendment, described the verdict as 'historic'.
Speaking to the media, he said: "The court unanimously scrapped the state's appeal. The law, allowing parliament to impeach top court judges, is now void. The 15th amendment to the Constitution, which protected the Supreme Judicial Council, has been upheld."
Attorney General Mahbubey Alam said he was disappointed by the top court's decision.
Asked whether the state will seek a review, he said, "We will let you know after discussing it with the law ministry and the government."
Alam, however, said he does not think the verdict implies that the Supreme Judicial Council will now be responsible for removing 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 House."
During the hearings, which started on May 8 this year, the Appellate Division heard opinions of 10 Supreme Court lawyers as amici curiae or 'friends of the court' on the matter.
All of them, except one, favoured the High Court ruling that found the amendment illegal.
The High Court verdict had drawn sharp reaction from the political arena; even MPs walked out of the parliament in protest. But, the BNP supported the court’s ruling.
Attorney General Mahbubey Alam’s persistence on having the full-bench hold the appeal hearing had created a rift in the courtroom, which later led to heated arguments between Alam and the chief justice.
To calm the lawmakers, Law Minister Anisul Huq at the time described the High Court verdict as ‘unconstitutional’. He also said that it would be overturned if challenged in the Appellate Division.
However, the chief justice at the hearing said they would give their verdict keeping the Constitution in mind.
The road to 16th Amendment
# 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.
# The Fifth Amendment was later declared illegal by court. Though the Awami League government brought the 15th Amendment to the Constitution in 2011, but no changes were made in the Supreme Judicial Council provision.
# Then the 16th Amendment was passed on Sep 17, 2014, allowing the parliament to remove judges by a two-thirds majority on grounds of inefficiency and misconduct. It was notified by inclusion in the official gazette five days later.
# On Nov 5, 2014, nine Supreme Court lawyers filed the petition challenging the amendment’s legal basis. Four days later, the High Court issued a rule asking why the amendment would not be declared unconstitutional.
# On May 5, 2016, a special High Court bench gave the verdict declaring the 16th Amendment illegal. The 165-page verdict was published on Aug 11 same year.
# Of the three justices of the bench, Justice Moyeenul Islam Chowdhury and Justice Quazi Reza-Ul Hoque had agreed that the amendment was illegal. But Justice Md Ashraful Kamal was for dismissing the petition.
What the HC verdict 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.”
Backing the 16th Amendment, Attorney General Mahbubey Alam had said it restored the power that belonged to the people.
“The Constitution’s formulators had kept Section 96 since the beginning. Martial law authority illegally usurped power meanwhile. They distorted the Constitution by adding the provision of the Supreme Judicial Council. Through the 16th Amendment we have returned to the root of the Constitution.”
This Amendment did not change anything in the Constitution’s original structure, Alam claimed, adding, “The High Court gave its verdict on the basis of a misconception.”
On the other hand, advocate Manzill Murshid, who had challenged the amendment along with eight others, said the power to impeach judges was given to the parliament as no one had past experience in the matter when the Constitution was formulated immediately after independence. Later, Bangabandhu Sheikh Mujibur Rahman himself brought changes through the Fourth Amendment.
He also told the court names of countries including Australia, Namibia, Pakistan and Bulgaria that have Supreme Judicial Councils to remove judges when necessary.
Murshid’s reasoning was that restoring the power to the MPs would lead to political abuse as the lawmakers cannot vote against his/her party according to the Constitution’s Section 70.
The opinions the court had heard from 10 lawyers as amici curiae, nine of them including Kamal Hossain had called for annulling the amendment. Only Ajmalul Hossain QC supported it.
The court had appointed 12 lawyers as amici curiae. Of them, barristers Rafiq-Ul Haque and Shafique Ahmed did not give their opinions.
Apart from them, former law minister and Awami League MP Abdul Matin Khasru argued in favour of the 16th Amendment as an ‘intervener’.
During the hearing, Chief Justice Sinha had asked what would happen if any party does not have two-thirds majority in the parliament during the process of a judge’s impeachment.
In reply, Khasru, leader of the ruling party-backed lawyers, said, “The next generation will handle that.”