Dhaka: Eminent jurist Dr Kamal Hossain said yesterday that the Sixteenth Amendment to the Constitution created an opportunity to undermine the independence of the judiciary by making it vulnerable to undue influences and pressure.
This amendment also endangers the rule of law. Dr Hossain, chairman of the Constitution-Drafting Committee, Bangladesh, 1972, made the observations while placing an expert’s opinion before the full bench of the Appellate Division, headed by Chief Justice Surendra Kumar Sinha. The bench was hearing an appeal against the High Court verdict that scrapped the Sixteenth Amendment. The amendment empowers Parliament to remove Supreme Court judges for “incapacity” or “misbehaviour”.
The Supreme Court appointed 12 senior lawyers as amicus curiae (friends of the court) to place their submission before the court in the case. Eight out of 12 amicus curiae have already given their opinion. While giving his opinion, Dr Hossain supported the HC verdict and said the amendment was unconstitutional and void.
“There is abundant authority and precedent globally that the judicial council, or a similar body, comprising only judges have been constituted in many countries, including the USA, the UK, Canada, Hongkong, Germany, Sweden, Pakistan, Bangladesh, Malaysia, Singapore, Israel, Zambia, Trinidad and Tobago, New South Wales and Victoria,” he said.
He added that the Sixteenth Amendment would render the tenure of the judges insecure. Citing constitutional provision, the eminent jurist said the judiciary should remain out of control of two other organs of the state, as the Constitution provides for independent powers of the judiciary.
However, barrister Ajmalul Hossain QC, one of amicus curiae of the case, gave his opinion before the court in favour of the Sixteenth Amendment. It is an effective amendment, as it has brought back the original Constitution of the country. Hence, there is no need to scrap the amendment, he added.
Former attorney general AF Hassan Arief, another amicus curiae, told the court that the government has interfered in the functioning of the judiciary following the Sixteenth Amendment. The provision of removing Supreme Court judges has already been settled following several amendments to the Constitution, including the Fifteenth one. Hence, the government has no jurisdiction to bring another amendment on the matter, he added. Dr Abdul Wadud Bhuiyan, another amicus curiae, told the court that the Chief Justice forms the Supreme Judicial Council to remove Supreme Court judges. If this power goes to the government, it would hamper the balance of power, he added. On February 8, the Supreme Court appointed 12 senior jurists as amicus curiae seeking their opinion over the legality of the Sixteenth Amendment.
