16th amendment invalid: Supreme Judicial Council affirmed

Staff Reporter :

The Supreme Court has reaffirmed that judges can be removed through the Supreme Judicial Council (SJC). In a landmark ruling on Sunday, the six-member Appellate Division of the Supreme Court, led by Chief Justice Syed Refaat Ahmed, upheld its earlier decision that declared the 16th Amendment to the Constitution invalid.

The Appellate Division of the Supreme Court dismissed, with observations, the review petition challenging a High Court verdict that nullified the 16th Amendment, which had empowered parliament to remove Supreme Court judges for incapacity or misconduct.

Attorney General Md Asaduzzaman informed the media that the constitutional provision for the Supreme Judicial Council to investigate allegations against judges, and the code of conduct issued by the apex court in the 16th Amendment case, would remain in effect. The details of the observations will be known once the full text of the Appellate Division’s verdict is released.

The full text of the verdict will also address whether there is any ambiguity in the provisions of Article 96 of the Constitution regarding the resignation of judges.

A six-member bench of the Appellate Division, headed by Chief Justice Syed Refaat Ahmed, passed the order after hearing the review petition challenging the earlier verdict.

The Sheikh Hasina-led government had filed a 908-page review petition with the Appellate Division on December 24, 2017, presenting 94 grounds for restoring the 16th Amendment, which sought to cancel the provision of the Supreme Judicial Council and modify some of its observations.

In May 2016, the High Court declared the 16th Amendment unconstitutional, finding that it violated the principles of separation of powers and the independence of the judiciary. The government later appealed the High Court’s decision, but the Appellate Division rejected the appeal and upheld the High Court’s verdict.

In the full text of its 2017 verdict, the Appellate Division reinstated the provision for the Supreme Judicial Council, allowing it to oversee the removal of judges for misconduct or incapacity. The court also introduced a 39-point code of conduct for Supreme Court judges, formulated under Article 96 of the Constitution.

Article 96, which was nullified by the 16th Amendment, outlines the procedures for the formation and functions of the Supreme Judicial Council and the formulation of a code of conduct for judges.

The 16th Amendment, passed in September 2014, abolished the Chief Justice-led Supreme Judicial Council and restored parliament’s power to remove judges. However, the amendment was challenged in the High Court.

The original 1972 Constitution had empowered parliament to remove Supreme Court judges, but the fourth amendment in 1975 transferred this power to the president. In 1978, a martial law proclamation curtailed the president’s authority and introduced the Supreme Judicial Council, which was ratified by the fifth amendment in 1979.

In 2005, the High Court declared the fifth amendment illegal, but it upheld the introduction of the Supreme Judicial Council. In 2010, the Supreme Court confirmed the High Court’s ruling and stated that the Supreme Judicial Council would remain valid until December 31, 2011.

The Awami League government later included the provision for the Supreme Judicial Council in the 15th Amendment to the Constitution in 2011, allowing it to continue. However, in 2014, the government abolished the Supreme Judicial Council through the 16th Amendment.

In its verdict, the Supreme Court emphasized that an independent judiciary is the cornerstone of the Constitution and one of the fundamental principles of state policy, as outlined in Article 22. The court noted that the judiciary must remain free from interference by the other two branches of government, as emphasized in Articles 94(4), 116A, and 147 of the Constitution.

The court further argued that without a political tradition in which members of parliament could act neutrally and impartially, giving parliament the power to remove judges would undermine judicial independence and alter the basic structure of the Constitution. The court pointed to Article 70, which requires lawmakers to vacate their seats if they vote against their party, as a significant obstacle to maintaining impartiality.

According to the verdict, Article 70 ensures political stability and discipline but also makes it unlikely that parliament could impartially remove a judge without party influence. If a judge displeased the ruling party, they could be subjected to removal by parliament, which would undermine the judiciary’s independence.