Top court revives Supreme Judicial Council to sack its judges

The Supreme Court has reinstated Supreme Judicial Council, which was introduced by a military government, in the Constitution.

The Appellate Division published the full verdict on the 16th Amendment, repealing the amendment and restoring six clauses of Article 96, on Tuesday – around a month after issuing the summary verdict.

The Appellate Division also reformulated a 39-point code of conduct amending the one issued last year for the judges in exercise of powers under the article.

The 799-page verdict said the State's appeal against the High Court verdict repealing the 16th Amendment is dismissed with a unanimous decision.

Chief Justice Surendra Kumar Sinha observed, "The decisions of the apex court of the country are final not because they are infallible, but because the decisions are infallible as they are constitutionally final.

"By the impugned amendment, the removal mechanism of the Judges of higher judiciary by the Supreme Judicial Council has been substituted by the Parliamentary removal mechanism. Since this amendment in ultra vires the constitution, the provision prevailing before substitution is restored. The appeal is accordingly dismissed," he added.

Parliament brought back the powers to impeach Supreme Court judges on Sep 17, 2014 by changing Article 96, which is known as the 16th Amendment to the Constitution.

The High Court in 2016 declared the amendment illegal following a writ petition filed by nine Supreme Court lawyers.

On July 3 this year, a seven-member Appellate Division bench headed by Justice Sinha dismissed the State's appeal against the High Court verdict. Now the full appeals verdict, upholding that one of the High Court, has been published.

Chief Justice Sinha, Justice Md Abdul Wahhab Miah, Justice Nazmun Ara Sultana, Justice Syed Mahmud Hossain, Justice Muhammad Imman Ali, Justice Hasan Foez Siddique, and Justice Mirza Hussain Haider wrote separate judgements, but opined in favour of repealing the 16th Amendment.

Justice Sultana fully agreed with the verdict written by the chief justice.

They also expunged some remarks by the High Court.

In his reaction to the full verdict, lawyer Manzill Murshid, who represented the writ petitioners at the hearing, said, "The Supreme Judicial Council has been automatically reinstated by this verdict. It means judges will be removed through the Council from now on, if necessary."

On the other hand, Attorney General Mahbubey Alam said it up to the government to decide whether to seek a review of the appeals verdict or not.

Law Minister Anisul Huq denied comment before reading the full verdict.

Supreme Judicial Council

Through the restoration of six clauses of Article 96, the Supreme Judicial Council provision, introduced during military ruler Ziaur Rahman's tenure in 1977 for the removal of top judges, has been reinstated.

The old Clause 3 of the article says the Council shall consist of the chief justice and two next senior judges.

If a member of the Council is the judge being inquired, or absent, the judge next in seniority shall replace him or her.

Clause 4 says the Council's function will be to prescribe a code of conduct for the judges and to inquire into the capacity or conduct of a judge.

According to Clause 5, the President may direct the Council to launch an inquiry if he or she receives information on a judge being incapable of properly doing his duty for physical or mental reasons, or being accused of gross misconduct.

If the Council finds truth in the information on the judge's incapability or the allegation of misconduct, the president shall order the judge's removal, Clause 6 says.

According to Clause 7, the Council shall regulate its own procedure and shall have the same power as the Supreme Court in execution of processes.