Verdict on 16th Amendment: Lawmakers tear into higher courts

Seniors ministers and MPs from the treasury and opposition benches yesterday launched a blistering attack on the High Court and the Supreme Court for judgments against the Jatiya Sangsad's power to remove their judges for incapacity or misconduct.

Speaking in the JS on points of order, the ministers and MPs, including Agriculture Minister Matia Chowdhury, Commerce Minister Tofail Ahmed, Civil Aviation Minister Rashed Khan Menon, and Information Minister Hasanul Haq Inu, called upon the government to take a realistic decision on the issue.

Prime Minister Sheikh Hasina was in the House at the time.

The ministers and MPs hoped that the SC would restore the 16th amendment once the government files a review petition against the apex court verdict.

Following the two-and-a-half-hour unscheduled discussion, Speaker Shirin Sharmin Chaudhury said as the matter was significant and constitution related, further discussions would be held in parliament on a specific day.

Lambasting the top court, the discussants termed the verdict “unexpected” and said the SC has to prove how parliamentarians have “challenged the basic structure” of the constitution by passing the 16th amendment.

The lawmakers came down heavily on the amici curiae, especially Dr Kamal Hossain and Barrister M Amirul Islam, for opposing the 16th amendment.

They claimed that being “opportunist”, a number of members of the amici curiae, appointed by the SC, had provided “false and fabricated” information to the court.

The lawmakers said if the parliament had the power to impeach the president, the Speaker and the prime minister, then why could it not impeach the SC judges for misconduct or incapacity?

The parliament in September 2014 passed the 16th amendment, which abolished the chief justice-led Supreme Judicial Council and restored the authority of parliament to remove SC judges.

The High Court in May last year ruled that the 16th amendment was illegal and unconstitutional. It said the amendment went against the principles of the separation of powers and the independence of the judiciary.

On January 4, the government filed an appeal with the SC against the HC verdict.

A seven-member SC bench, led by Chief Justice Surendra Kumar Sinha, on July 3 unanimously upheld the HC verdict.

Arguments during the hearing of the appeal and the HC's observations made it clear that article 70 of the constitution, which prevents MPs from working independently in parliament, largely contributed to the amendment being declared illegal. 

In its verdict, the HC strongly criticised article 70 as well as the lack of unity among political parties.

While dealing with the appeal, the SC in February requested 12 senior jurists to place their opinion.

The 12 member amici curiae include Justice (retd) TH Khan, Dr Kamal Hossain, barristers Amirul Islam, AF Hasan Arif, Ajmalul Hossain, Rafiqul Haque, Shafique Ahmed, Rokonuddin Mahmud, MI Farooqui, Fida M Kamal and lawyers Abdul Wadud Bhuiyan, and AJ Mohammad Ali.

Nine of them recommended scrapping the amendment. One spoke in favour of it while the other two did not give any opinion.

AL MP and Commerce Minister Tofail Ahmed in his speech yesterday said, “Even the president, the prime minister and the speaker can be impeached by parliament. Then why they [judges] cannot be impeached by parliament?”

Mentioning that parliaments of almost all countries have the power to impeach judges, Tofail called upon the law minister to take realistic measures to restore the 16th amendment.

Pointing to arguments made by the amici curiae, especially Dr Kamal Hossain and M Amirul Islam, Tofail said they had delivered the “worst speech” before the SC. He said their speeches were full of misleading information.

“I am surprised that they identify themselves as the architect of the constitution. But they gave totally false information that India and many other countries at present do not have the provision for parliament to impeach judges,” he added.

He said Dr Kamal and Amirul had earlier commented that the 1972 constitution was perfect and that it was one of the best constitutions in the sub-continent.

“But now they are speaking against the 1972 constitution … .”

Tofail said the duo argued in favour of the Supreme Judicial Council which is present in Pakistan's constitution.

“I have no words to condemn them. They are opportunists.”

Pointing to weakness of the judicial council system, Tofail said, “How would subordinate judges try allegations brought against the chief justice?”

Taking part in the discussion, Matia Chowdhury questioned how the SC judges could judge their own misbehaviours and irregularities.

She said that on at least four occasions the judicial councils did not find allegations of irregularities and misconduct against judges to be true.

“A few months ago, additional registrar, on the order of chief justice, had asked not to probe allegation raised against an SC judge by the ACC,” she said.

She said a judge has circulated leaflets urging a halt to war crimes trial but the supreme judicial council did not see it to be improper behaviour. Another judge had forged his LLB certificate but the council saw no irregularities.

Jatiya Samajtantrik Dal MP Mayeen Uddin Khan Badal, who initiated the attack on the SC, taking the floor on a point of order said, “They should make clear how parliamentarians have challenged the basic structures of the constitution.”

“An apex court verdict has declared military dictator Ziaur Rahman's rule illegal, how can the court now restore the system of Supreme Judicial Council introduced during the tenure of the dictator?”

Awami League lawmaker Sheikh Fazlul Karim Selim said, “We all know that the judiciary is independent … the hands of judiciary cannot be longer than that of the parliament.”

People who were opposing the 16th amendment were trying to create a conflict between parliament and the judiciary, Selim said.

Rashed Khan Menon said a vested quarter was trying to create division between parliament and the judiciary.

He said Ayub Khan introduced the Supreme Judicial Council system and it was included through the 5th amendment.     

Jatiya Party lawmaker Zaiuddin Ahmed, AL lawmaker Ali Ashraf and other MPs taking part in the discussion said the apex court verdict would be reviewed and the 16th amendment would be restored.

Information minister Hasanul Haq Inu said the Appellate Division verdict was somehow “motivated” and “part of a conspiracy”.