Supreme Judicial Council effective again to remove judges 

The Supreme Court today disposed of a petition seeking a review of the 2017 verdict that declared the 16th Constitutional Amendment illegal, clearing the path for the Supreme Judicial Council to remove apex court judges for incapacity or violations of the code of conduct.

"The Supreme Judicial Council has been reinstated, or it has become effective again through the disposal of the review case," Law, Justice, and Parliamentary Affairs Adviser Asif Nazrul said while speaking to journalists at the ministry.

"There was much confusion regarding this council, but after today's order, that confusion has been resolved. This holds special significance in our Constitution," he added.

The Appellate Division, led by Chief Justice Syed Refaat Ahmed, delivered a verdict reaffirming its previous ruling that annulled the 16th Amendment, which had transferred the authority to remove judges from the Supreme Judicial Council to parliament.

"The verdict has reinstated the Supreme Judicial Council's authority to remove judges, which had been transferred to parliament through the 16th amendment. This ruling reinforces the original constitutional provisions," said senior lawyer Ruhul Quddus Kajal, who took part in the hearing as a friend of the court.

While responding to a question about when this council will be formed, Asif Nazrul stated that the council is already in place, adding, "It is composed of the chief justice and the two most senior judges of the Appellate Division. For example, if a complaint is received today, it will begin processing it immediately. There is no need to issue any notification."

He further stated that the order has opened a pathway to address the resentment of students and the public against some apex court judges accused of corruption and of being instruments of oppression under past fascist forces, constitutionally through the Supreme Judicial Council.

"The Supreme Court is completely independent and will take steps in its own way. Through today's order, students and the public have an appropriate platform to channel their grievances and raise them with the concerned authorities. I see this as a positive development," he added.

Following the siege of the High Court and protests earlier this month demanding the resignation of judges involved in politicisation and corruption, the Supreme Court administration decided to withhold bench assignments from 12 High Court judges, effectively stripping them of their judicial powers. 

Three other judges had previously lost their judicial powers during the former Awami League government. As a result, the Supreme Judicial Council can now investigate the allegations against these 15 judges.

Regarding these 15 judges, Attorney General Md Asaduzzaman told The Business Standard, "If there are any allegations of professional misconduct or financial or moral dishonesty against them, these should be submitted to the Supreme Judicial Council in the form of a complaint.

"The council will then investigate their guilt or innocence and send its findings to the president, along with recommendations. The president will take action." 

In response to a question, the chief law officer of the state stated that the final decision to remove a judge rests with the president, adding, "However, this decision is often mechanical, as it is the responsibility of the Supreme Judicial Council to provide recommendations, including whether misconduct has been proven."

The attorney general noted that, to date, only one judge has been removed through the Supreme Judicial Council, which occurred in 2004.

The state had earlier filed the petition to review the Appellate Division's previous verdict, which upheld the High Court's decision declaring the 16th Amendment illegal and unconstitutional.

As part of the verdict, clauses 2 to 8 of Article 96 of the Constitution, which were repealed by the 16th Amendment, were also restored.

The 16th Amendment was passed in January 2014, shortly after the 10th parliamentary elections, and it removed the Supreme Judicial Council's role in the removal of judges.

In May 2016, a three-judge special High Court bench declared the 16th Amendment unconstitutional in a majority decision.

After receiving the full copy of the judgement, the state filed an appeal to the Appellate Division in January 2017.

In July 2017, the Appellate Division led by then Chief Justice Surendra Kumar Sinha upheld the High Court's ruling. The full judgement was published in August 2017.

Justice SK Sinha saga 

The seven-judge bench passed the verdict by consensus. The full 799-page judgement elicited intense dissatisfaction from the then Awami League government, as Justice SK Sinha's observations criticised various issues, including the Liberation War, the country's politics, democracy, military rule, the Election Commission, corruption, good governance, and the independence of the judiciary.

Accusations arose that Sheikh Mujibur Rahman had been "belittled" in these observations, leading many ministers of the Awami League government, party leaders, and pro-AL lawyers to demand the resignation of the chief justice. Justice Sinha faced criticism in parliament as well.

Then prime minister Sheikh Hasina also condemned Justice Sinha for his remarks, while the BNP welcomed the verdict.

The differences between the chief justice and the government became evident in the wake of this verdict. Justice Sinha went on leave on 13 October of that year amid sharp tensions with the government and later left the country that same night. He submitted his resignation through the Bangladesh High Commission in Singapore on 11 November.

In 2018, while stationed abroad, Justice Sinha published an autobiographical book titled "A Broken Dream: Rule of Law, Human Rights, and Democracy." The book provides a detailed account of the circumstances surrounding his conflict with the government, his forced emigration, and the reasons behind his resignation as chief justice.

Why parliament is not fit

The Appellate Division led by chief justice Surendra Kumar Sinha observed in its full text of the verdict, "I am of the opinion that the said procedure should not be disturbed. The removal process of a judge of the higher judiciary as laid down in the impugned 16th amendment will render insecurity in the mind of the judges, thereby creating an opportunity to undermine the independence of the judiciary, making this organ vulnerable and jeopardising the rule of law, which will create an opportunity for creating political influence and pressure upon them, especially when Article 70 of the Constitution is subsisting.

"So long Article 70 is there the independent wish of a member of the parliament in respect of casting vote freely does not exist."

Later, in December 2017, the government filed a review petition with the Appellate Division, seeking the reinstatement of the 16th Amendment.