Scrapping of 16th Amendment: Govt finds reasons unacceptable

The grounds on which the Supreme Court scrapped the 16th amendment to the constitution are unacceptable to the government, Law Minister Anisul Huq said yesterday.

He also claimed that the chief justice made derogatory comments on parliament and undermined it in the SC judgment in the 16th amendment case.

“I want to say very humbly that the grounds on which the honourable Appellate Division [of the SC] cancelled the 16th amendment are not acceptable to us,” he told a press conference at the Secretariat.

The law minister came up with the government's formal reaction to the cancellation of the 16th amendment 10 days after the release of the full verdict.

“We have decided to make a move to get expunged the objectionable and irrelevant statements made by the chief justice in the judgment.”

In reply to a query, the minister, however, said the government was yet to decide whether it would seek review of the SC verdict as it was still examining all the issues mentioned in the judgment.

Earlier on Monday, more than a dozen senior ministers criticised the SC judgment at the weekly cabinet meeting with Prime Minister Sheikh Hasina in the chair. The PM directed them to build public opinion against the “objectionable and irrelevant comments” in the judgment, according to meeting sources.

At the meeting, it was decided that the law minister would give a formal reaction to the verdict that restored the Supreme Judicial Council for removing SC judges on grounds of gross misconduct or incapacity.

In its full verdict, the SC said the provision of SJC has been reinstated following the cancellation of the amendment that empowered parliament to remove SC judges.

In September 2014, the Jatiya Sangsad passed the 16th amendment abolishing the decades-old chief justice-led SJC.

Yesterday, the law minister said, “We think the Supreme Judicial Council system is very frail and not transparent.” The concept came from military dictators and it doesn't go with a democratic system.

The minister further said it was their belief that independence and job security of SC judges were protected through the change in the SCJ system.

“The government led by Bangabandhu's daughter Sheikh Hasina, and parliament never had any intention to limit or curb independence of the judiciary by any amendment.”

He also pointed out that parliament didn't get into any “power contest” with the judiciary through the 16th amendment, rather it made efforts to strengthen independence of the judiciary.

ANISUL ON CJ'S OBSERVATIONS

The law minister claimed that Chief Justice Surendra Kumar Sinha made many comments in the judgment, which were irrelevant to the “fact in issue” of the case.

“He made derogatory remarks on the Jatiya Sangsad and undermined this institution.

“I think those political questions cannot come into consideration of the court,” said the minister. 

The government was surprised at the CJ's observation that Article 116 goes against the constitution. The CJ overlooked the “fact in issue” of the case, Anisul said.

The CJ's observation is not based on logic, rather it is driven by emotion and grudge, he added.

“We thank the four judges who disagreed with his [CJ] observations,” he noted.

The minister said, “We all should remember that the office of the chief justice is a constitutional institution… So it is our responsibility to protect the dignity of the institution.

“I want to say that an institution is bigger than a person and the country is bigger than any institution.”

The law minister said he respects the SC verdict though they disagree with it.

He mentioned that the SC upheld the High Court verdict that had scrapped the 16th amendment on three grounds.

One of the grounds is that the 16th amendment is against the basic structure of the constitution, as it will hamper independence of the judiciary. The judges cannot work independently if parliament members are given the responsibility of removing judges. The judges will be in fear of getting removed if their judgments go against lawmakers.

The law minister said, “In our consideration, the 16th amendment to the constitution was made to strengthen independence of the judiciary and make it more transparent. We passed the bill on the 16th amendment to institutionalise checks and balances -- the fundamental policy of democracy.”

He further said they were saddened by the CJ's remark that “no nation, no country is made of or by one person.”

“I am hurt by this statement,” he said.

History says a sovereign Bangladesh was achieved as a result of movements that took place from 1948 to 1971 under the leadership of Father of the Nation Bangabandhu Sheikh Mujibur Rahman, he pointed out.

Anisul also mentioned that the Liberation War was fought under the leadership and ideology of Bangabandhu, and that the CJ's comments in this regard were unacceptable to them.

Responding to a question, the law minister referred to the post-1975 removal of three judges -- Justice Abdur Rahman Chowdhury, SM Hossain and KM Sobhan -- bypassing the Supreme Judicial Council.

He also mentioned that a sitting judge allegedly distributed leaflets of Hefajat-e-Islam among colleagues, and reports on it were published in the media. The SJC sat to discuss the issue. But the judge got acquitted though there was a lot of information about it.

Anisul said it was very sad that a meeting of the SJC was called hurriedly after the full judgment was released on August 1.

Asked whether it was obligatory to abide by the segments in the observations on Article 116, which have been termed “irrelevant”, the law minister said, “It is an observation of the highest court of the country. If there is any irrelevant issue in it, we have to see it and take steps against or in favour of it.”    

The government would deal with the verdict through legal means, he added.

The law minister said the cabinet in April last year approved a draft law to determine a system for carrying out enquiry and removing judges. And the process is similar to that of the SJC.

The draft law proposed giving judges the responsibility of probing any misconduct against their colleagues. They would then send the probe report to the Speaker, who would place it before the JS only if it is found satisfactory.

“In our perspective, it is a very transparent system.

“Deliberations by 100, 200 and 300 lawmakers are much more scrutinised than that of one or three persons. That's why we brought the 16th amendment [to the constitution].”

The law minister further said the SC in its verdict made mention of 39-point code of conduct for its judges. But there had been no such code of conduct for SC judges in the past.

Asked about bringing further amendment to the constitution, he said if people give them mandate or show their interest in favour of it, they would definitely do so.