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2 August, 2017 00:00 00 AM / LAST MODIFIED: 2 August, 2017 01:52:39 AM
Full text of 16th amendment case verdict released

SC restores Supreme Judicial Council

“Substitution of word ‘President’ in place of ‘Supreme Court’ in Article 116 of the constitution that deals with the control of lower courts is violation of the basic structure of original constitution”
SC restores Supreme Judicial Council

The provision of the Supreme Judicial Council is restored as the removal of Supreme Court (SC) judges by parliament is a clear departure from the original provisions of the constitution, observed the SC in its full verdict of the 16th amendment case released yesterday.

Also, the substitution of word ‘President’ in place of ‘Supreme Court’ in Article 116 of the Constitution that deals with the control of lower courts was made through the fourth amendment in violation of the basic structure of the original constitution, says the SC verdict.

“By the impugned 16th 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 is ultra vires the constitution, the provision of the Supreme Judicial Council is restored,” says the full verdict copy.

About the substitution of word ‘President’, the verdict says: “Even before the Fourth Amendment, the superintendence and control of all courts and tribunals were under the High Court Division and this provision ensures the independence of judiciary, but by this substitution of the word ‘President’ for the words ‘Supreme Court’ in article 116, the independence of the lower judiciary has been totally impaired, curtailed and whittled down.”

The apex court released the 799-page text of the verdict after its six judges, including Chief Justice Surendra Kumar Sinha, signed it.

Justice Nazmun Ara Sultana, who was a member of the Appellate Division during hearing on the case, however, did not sign the judgment as she retired on July 7, High Court's Additional Registrar Md Sabbir Faiz said.

Chief Justice SK Sinha, who wrote the main verdict, observed that the Executive is now trying to take control of the entire Judiciary, which is unconstitutional and ultra vires.

 The verdict said: “The scheme of the Constitution itself shows that the lower judiciary is totally independent and that its control shall be with the High Court Division. The change of the system of the government will not make any difference. There were twelve amendments in the Constitution after the Fourth Amendment. None of the governments took any step in this regard despite the observations by this court in Fifth, Eighth and Thirteen Amendment cases.”

 “Keeping the control and disciplinary mechanism of the officers of the lower judiciary with the Executive, the Judiciary cannot be independent and this provision is not only inconsistent with Article 109, it is also inconsistent with Article 116A, which has also been substituted by the Constitution's Fourth Amendment. Under this provision, it is said that all persons employed in the judicial service and all Magistrates shall be independent in exercise of their judicial functions. But if the lower judiciary is controlled by the Executive, how will there be independence of the Judiciary and how will the High Court Division control the lower judiciary. The net result is by the Constitution's contrivance, the Executive is now trying to take control of the entire Judiciary which device is unconstitutional and ultra vires,” according to the copy of the verdict.

 The verdict said: “This court fails to comprehend the reason behind the promulgation of the impugned amendment abruptly without removing the inconsistency in other provisions of the Constitution. Keeping articles 116 and 116A intact and substituting Article 96, the Judiciary is totally crippled now. This has caused embarrassment on the part of the Chief Justice in the administration of justice in higher and lower judiciary to the knowledge of the Executive.”

There is practically no disciplinary rule in respect of the entire Judiciary which is suicidal to the country as a whole, the verdict said, adding it is not correct that there is no prescribed Code of Conduct to be observed by the Judges.

The Judges are guided by the Code of Conduct and that is why Syed Shahidur Rahman, an Additional Judge of the High Court Division, has been removed as per recommendation of the Supreme Judicial Council, according to the verdict.

With a view to avoiding any misgiving and confusion, the Chief Justice in his verdict said that they have reformulated 38 directives under Article 96 of the Constitution that will be considered as the Code of Conduct for apex court judges.

Justice Abdul Wahhab Miah, in his verdict, said that the Sixteenth Amendment has come into direct conflict with the basic structure of the Constitution.

The constitutional principle of independence of the Judiciary prohibits any kind of partisan exercise of power by the Legislature in relation to the Judiciary, particularly, the power of the Legislature to remove Judges of the Supreme Court, the verdict said.

The executive government is likely to command two-thirds majority in Parliament with whose support, the Executive Government will be in a position to exercise control over the Judiciary.

As per the Sixteenth Amendment, the possibility of abuse of power by the Executive Government through Parliament to remove a Judge of the Supreme Court for political or party consideration will always remain, it said.

Besides, as there is the possibility of abuse of the power by the Executive Government, the Sixteenth Amendment is incompatible with the provisions of articles 7, 22, 94(4), 116A and 147(2) of the Constitution which have mandated for separation of powers, independence of  the Judiciary, two basic structures of the Constitution and these basic structures cannot be destroyed in exercise of the constituent power of amendment of the Constitution by Parliament, it noted.

The effective independence of the Judiciary has become unsecured and thereby the judiciary has been made vulnerable to a process of impeachment by the Legislature, which would be influenced by political influence and pressure, the verdict said.

The risk of impeachment highly politicized will be even more prominent in the current political context of Bangladesh, especially due to the effect of Article 70 of the Constitution, the verdict noted.

The verdict also said that the Supreme Court judges are not elected by the members of Parliament and they are not even appointed by Parliament. Hence, Parliament could not be a proper authority to remove the judges.

“In the present constitutional scheme, the members of Parliament have no say in any manner whatsoever in the matter of appointment of a Judge of the Supreme Court and they are appointed by the President,” the verdict said.

“The Supreme Judicial Council as contained in clauses (2) (3) (4) (5) (6) and (7) of Article 96 having been upheld by this Division on two occasions (in Eighth Amendment and Fifth Amendment cases), Amendment of those clauses of article 96 by Sixteenth Amendment tantamount to overruling the two judgments of this Division through legislative power and thus, Parliament assumed and exercised supra judicial power over the judgment of this Division. But the Constitution has not empowered Parliament such supra judicial power to nullify the approval of constitutional provision affecting the independence of the Judiciary,” the court said.

“And such exercise of power is an invasion upon separation of power and the rule of law, two basic structures of the Constitution. Therefore, the Sixteenth Amendment cannot get the seal of legitimacy by this court,” said the verdict.

The above quoted observations and findings by this Division, in the two constitutional cases on the Supreme Judicial Council, are binding upon all authorities, the Executive and the Judiciary, in the Republic in view of the provisions of articles 111 and 112 of the Constitution and those findings and observations have become Judge-made law and are very much part of the Constitution and constitutional jurisprudence.

“It was not also brought to the notice of the members of Parliament that Bangabandhu, father of the nation, himself by Fourth Amendment took away the power of impeachment of the Judges of the Supreme Court by Parliament and it was vested with the President,” the verdict said.

Therefore, before martial law dispensation, the original Article 96 was no more in the Constitution and, in fact, in the Fifteenth Amendment, Article 96 with the Supreme Judicial Council was retained and thus it became a part of the Constitution, and thereby Article 96 with the Supreme Judicial Council no more bore the stigma of the Martial Law Proclamation, it noted.

“The Fifteenth Amendment to the Constitution retaining the provision of the Supreme Judicial Council was passed on 30.06.2011 and then just after 3(three) years 2(two) months 10(ten) days, the Sixteenth Amendment was passed on 07.09.2014, without assigning any new reason and giving the back-up facts which prompted Parliament to pass the Sixteenth Amendment, particularly, in the face of Aarticle 7B as discussed earlier,” the verdict said.

The Supreme Judicial Council now a part of our Constitution is the safety valve against the executive onslaughts and it shall save the Judges of the Supreme Court from the onslaughts of the executive and this safety valve cannot be allowed to be fused by any logic and under any circumstances, but that is what has actually been done by the Sixteenth Amendment, so the High Court Division very rightly struck down the same, the verdict said.

“At the same time, I strongly feel that steps need be taken to make the Supreme Judicial Council more effective,” Justice Abdul Wahhab Miah said in his verdict.

Talking to the this correspondent, petitioner lawyer Advocate Manzill Murshid said the debate over impeachment of Supreme Court judges have ended following released of the apex court verdict, as Parliament has lost its authority to remove Supreme Court judges. Now the Supreme Judicial Council, which was repealed by the 16th Amendment, will be restored for impeaching any judge, if required, he added.

Parliament passed the amendment in September 2014, repealing the provision of the Supreme Judicial Council, authorising the judicial body to investigate allegations against judges and recommend their removal to the President as the head of state.

Bangladesh’s original 1972 Constitution had empowered Parliament to remove Supreme Court judges, but a 1975 amendment had entrusted the President with the authority. Again, a subsequent amendment in 1978, when a military regime was in power, bestowed the authority on the Council.

 Nine SC lawyers filed a writ petition before the High Court on November 5, 2014, questioning the validity of the amendment. On May 5 last year, the HC declared the 16th Amendment illegal.

 The government, on January 4 this year, filed an appeal challenging the HC decision.

 But, on July 3, the apex court upheld the High Court verdict, and thus the 16th Amendment is not in force anymore.



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Editor : M. Shamsur Rahman

Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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