Empowering JS undermines independence of judiciary

Four amici curiae (friends of court), including Dr Kamal Hossain, yesterday placed arguments before the Supreme Court opposing the 16th amendment of the constitution that empowered parliament to remove its judges for incapacity or misbehaviour.

The three others are Advocate AF Hasan Ariff, Barrister MI Farooqui, and Advocate Abdul Wadud Bhuiyan.

With these four legal experts, seven amici curiae have given opinions against the 16th amendment before a seven-member Appellate Division bench, headed by Chief Justice Surendra Kumar Sinha, during the hearing of an appeal against the High Court verdict that scrapped the 16th amendment.

Yesterday, one amicus curiae, Barrister Ajmalul Hossain QC, argued in favour of the 16 amendment.

Placing his arguments, Dr Kamal Hossain, the main author of the constitution, said the 16th amendment undermined independence of the judiciary by making the judiciary vulnerable to undue influences and pressure and thus jeopardising the rule of law.

“I fully support [the High Court] judgment, which held  that the 16th amendment is unconstitutional and void”.

He said the consequence of the 16th amendment would render the tenure of the judges insecure.

“Dissenting opinion was given by a single judge [of the HC], which on the face of it is vitiated by an error apparent on the face of that opinion to the effect that the Supreme Judicial Council exists only in Pakistan. This is clearly erroneous,” Dr Kamal said.       

“There is abundant authority and precedent globally that judicial councils or similar bodies consisting only of judges have been constituted in many countries including the USA, the UK, Canada, Hong Kong, Germany, Sweden, Pakistan, Bangladesh, Malaysia, Singapore, Israel, Zambia, Trinidad and Tobago, New South Wales, Victoria and others.”

Following a writ petition filed by nine SC lawyers, the HC on May 5 last year declared the amendment illegal. The government appealed against the verdict on January 4.

In his arguments, Advocate AF Hasan Ariff said the 16th amendment was ultra vires to the constitution because it had affected the independence of judiciary.

Barrister MI Farooqui gave similar opinions. "The amendment seriously violates the basic structures of democracy and judicial independence," he said.

Advocate Abdul Wadud Bhuiyan told the court that the amendment destroyed the independence of judiciary and separation of powers.

Barrister Ajmalul is expected to continue placing his arguments today.