Bangladesh’s Supreme Court in a landmark verdict today declared void a 2014 constitutional amendment empowering parliament to impeach apex court judges, a ruling which the government said could “undermine” the sovereign parliament’s authority. “By unanimous decision the (government) appeal is dismissed,” Chief Justice Surendra Kumar Sinha pronounced as a seven-member apex court bench unanimously upheld a previous High Court judgment calling the 16th amendment to the constitution illegal.
He said the seven-member apex court bench dismissed the appeal “with some findings” after hearing the arguments for and against the government appeal against the High Court decision for over 11 days. The verdict came amid a visible conflict between Prime Minister Sheikh Hasina’s ruling Awami League government and the Supreme Court over the apex court jurisdiction in disciplining lower judiciary judges.
Attorney General Mahbebey Alam expressed his “frustration” over the judgment fearing it could undermine the “sovereign parliament’s authority” but said he could take steps to seek its review by the apex court itself on consultation with the government. Several lawyers said the verdict would automatically restore the previous provision of Supreme Judicial Council, comprising the chief justice and two senior most apex court judges, in removing Supreme Court judges on moral or health grounds.
Alam, however, tended to contradict the idea saying legal complicacies might not allow automatic restoration of the previous provision. The Supreme Court in unitary Bangladesh have two divisions – the Appellate Division and High Court Division – unlike countries with federative structures like India.
The 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 entrusted the President with the authority while a subsequent amendment in 1978, when a military regime was in power, bestowed the authority on the Council.
The apex court earlier appointed nine senior lawyers or jurists as “amici curiae” or “friends of court” for giving their opinions on the matter while one but all suggested repealing of the 14th constitutional amendment. The apex court earlier in 2010 scrapped the fifth constitutional amendment that validated all activities of the first martial law regime when it, however, condoned the introduction of the Judicial Council.
On a writ petition by a Supreme Court lawyer, the High Court in 2016 declared void the 16th amendment calling it a “colourful legislation” and contradictory to the principle of separation of judiciary and basic spirit of constitution. It also described the original constitutional provision of 1972 as an “historic accident”.