Dhaka: The Appellate Division of the Supreme Court has upheld its decision to reinstate the Supreme Judicial Council’s authority to remove apex court judges for incapacity or misconduct, emphasizing that the spirit of the 16th Amendment case was to endanger the independence of judges. The judgment, delivered by a bench headed by Chief Justice Syed Refaat Ahmed, underscores the court’s commitment to maintaining judicial independence against legislative overreach.
According to Bangladesh Sangbad Sangstha, the full text of the Appellate Division judgment, released today, highlights a crucial observation: “What was the essence of the Sixteenth Amendment case? It was an attempt by a despotic and fascist government to wrest the power of removal of Judges from the Supreme Judicial Council and vest them in the hands of the Parliament, thereby putting the independence of Judges at stake.” The judgment was pronounced on October 20, 2024, and spans 50 pages.
The court’s decision, described as “disposed of with observation,” was a response to a plea seeking a review of the earlier judgment that declared the 16th constitutional amendment illegal. Justice Zubayer Rahman Chowdhury, in his observation, noted the potential threat to judicial independence if judges could be removed by parliament for political reasons, stating, “Can such a situation be allowed or accepted in a democratic society? The answer…is an emphatic ‘No’.”
The apex court further advised judges to avoid engaging in controversial political issues that could undermine their independence and draw undue criticism. “A judge should, thus, remain abstinent in expressing his political view which may have an anarchic impact on the image of the judiciary,” the judgment added.
Attorney General Md Asaduzzaman praised the order as a significant step toward true judicial independence, asserting that it would be remembered as a historical milestone. He emphasized the importance of the Supreme Judicial Council’s role, expressing confidence in its ability to function impartially and effectively.
The seven-member Appellate Division bench had initially upheld the High Court’s verdict declaring the 16th amendment unconstitutional on July 3, 2017. This verdict affirmed that the power to remove judges should remain with the Supreme Judicial Council, rather than being transferred to parliament. The state’s subsequent plea for a review was ultimately rejected, with the court finding no valid grounds among the 94 presented for reconsideration.
Senior advocate Manjil Mushid and Barrister Ruhul Quddus Kazal represented the petitioners in court, while Attorney General Md Asaduzzaman advocated for the state. The initial High Court verdict, delivered by a three-member bench led by Justice Moyeenul Islam Chowdhury on May 5, 2016, laid the groundwork for this landmark decision.