16th amendment: Former judge Abdur Rashid advises Supreme Court to rewrite verdict

A former Supreme Court judge has advised the top court to rewrite its judgment on the 16th constitutional amendment to help Bangladesh find a way out of the "mess" created by the verdict.

“Without any fear of controversy, it must be noted that the judgment of the AD [Appellate Division] has created the whole mess, the entire nation is now involved expressing their reaction, agitation and grievance this way or that way,” Justice Mohammad Abdur Rashid wrote in his detailed analysis of the verdict.

The amendment empowered parliament to remove Supreme Court judges, but the top court declared it illegal setting off a firestorm in political circles.

Rashid analysed blow by blow the Supreme Court’s full verdict issued on Aug 1, and made his analysis exclusive to bdnews24.com. It will be published in three parts starting Sept 7.

“The time has come to say for everyone enough is enough! Now, the question is how to come out of this mess,” Rashid wrote.

Rashid clearly expressed his frustration that the Bar is divided along the party line and everyone has got his own agenda and interest. “There is no guardian seen in the legal community who can lead the nation out of such impasse.”

 Judges caught in political divide, govt in quicksand

So he implored the chief justice and other senior judges to come forward to heed the “call of the nation”.

“The solution is not difficult to find.”

“Initiative will however rest on the Government. In the interest of justice, the judgment may be reviewed any time and rewritten accommodating the concern of the Parliament and the Judiciary,” said Rashid, who had also worked for the Law Commission as its chairman, after his retirement from the Supreme Court in 2009. 

Justice Mohammad Abdur Rashid

Chief Justice Surendra Kumar Sinha

The parliament was not created over a day and so it demands support, respect and sacrifice of the people to gradually take root, according to Rashid.

“The judiciary started behaving like a supra-constitutional authority dictating the Parliament. It is better to remember that the people are sovereign who elect the Parliament after a definite interval [it] cannot be made bound by any decision of a court.”

“The Parliament can make any law erasing the effect of the instant judgment of the AD [Appellate Division].”

‘Myth created’

“Now, let me consider the substituted article 96 like a jurist. A myth was created I think deliberately that the Parliament has taken upon itself the power of removal of a judge, including power of impeachment. The whole community is now in grip of grave fear and panic about their independence in the exercise of their judicial functions,” Rashid said.

“In the judgments of both the Divisions, other constitutional functionaries who would be treated the like way under article 96 found no mention. Needless to say that Article 96 was not meant for judges only.

“Under clause (2) of substituted article 96, it is clearly provided that a Judge shall not be removed from his office except by an order of the President that may be passed pursuant to a resolution of the Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, which is used in exercise of the Constituent power only, on the ground of proved misbehaviour or incapacity. Even the term ‘Impeachment’ by the Parliament, which was so widely publicized and subjected to propaganda in the media both print and electronic is not found anywhere. For the sake of brevity, I find that the security of tenure of such constitutional functionaries including a judge has been more secured by a statutory mechanism under the substituted article, which is not seen in any other constitution. It cannot be said parliamentary removal as in other developed democracy.

“Most important provision introduced by clause (3), which is, ‘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.’ Here the Parliament would act just as a post office either to pass and/or send a resolution by a majority of not less than two-thirds of the total number of members of Parliament only when it was proved in an inquiry by a body created by law that is a statutory body. There is no reason to think such statutory body would not be more representative, independent and powerful than the SJC. If such statutory body does not find any fault with any incumbent, the Parliament had no power to proceed an inch in the matter. Then, why so much apathy, want of confidence, panic, hatred or umbrage about the Parliament. Without waiting for the law constituting a statutory body with the concurrence of the judiciary, if need be, the Chief Justice for proof of misconduct or incapacity of a judge, the rush for striking down the Amending Act is definitely premature, in the least.

“It was repeatedly insisted by the substituted article 96, the security of tenure of the judges was compromised. There is however no anxiety expressed at all in respect of other similar constitutional functionaries. Security of tenure is a term used in a political sense to describe a constitutional or legal guarantee that a political office-holder, we can read here a constitutional functionary, cannot be removed from office except due process of law which must be fairer and all the opportunity to defend must be guaranteed. The article 96 does not mean security of the tenure, which would be clearer from the very subtitle used, namely, ‘Tenure of office of Judges.’ Such functionary has definitely a right to a fair process or mechanism of inquiry but cannot claim a particular form of inquiry or mechanism, which vests with the employer, namely, the President and here, as is provided in the Constitution.”

Angry reactions

Passed in parliament in 2014, the 16th Amendment to the Constitution restored lawmakers' powers to sack apex court judges on the grounds of misconduct and incapability.

It was however declared illegal in 2016 after nine Supreme Court lawyers challenged the decision in the High Court.

The High Court verdict drew sharp reaction from the political circles; MPs protested by walking out of parliament.

The court's decision landed a sharp blow to the Awami League-led government. The state then took the battle to the Appellate Division, but failed to secure a verdict in its favour. The appellate bench led by Chief Justice Surendra Kumar Sinha upheld the High Court's decision on Jul 3 this year.

The differences of opinion felt in the executive and the judiciary regained momentum after the apex court published a 799-page full verdict on Aug 1.

Justice Sinha used about 400 pages for his observations on Bangladesh's politics, past dictatorships, Election Commission, corruption, governance and judiciary.

His comments sparked angry reactions, mostly from ruling party stalwarts. As the government moved to expunge 'objectionable parts' from the verdict, its archrival BNP hailed the verdict as historic.

Leaders of the ruling Awami League have even called for the chief justice's resignation after accusing him of undermining Bangladesh's history, more specifically the nation's founder Bangabandhu Sheikh Mujibur Rahman.