Last update on: Wed Jun 11, 2025 05:15 AM
The Appellate Division of the Supreme Court in the full text of a verdict has observed that the sixteenth amendment to the constitution, which had empowered the parliament to remove the SC judges for incapacity or misbehavior, is a colourable legislation and is violative of separation of powers among the three organs of the state — executive, legislature and judiciary, and independence of the judiciary.
In the 50-page full text of judgement, which was uploaded on the SC website on June 3, a six-member bench of the Appellate Division headed by Chief Justice Syed Refaat Ahmed unanimously restored the constitutional provision (Article 96) of the Supreme Judicial Council to deal with the allegations against the SC judges over incapacity or misconduct.
“What was the essence of the sixteenth amendment case? In my view, 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.”
“In other words, if a Judge, in the course of discharging his function, would incur the wrath or disfavour of the government, he/she could be removed from office by the stroke of a pen by the members of the parliament. Can such a situation be allowed or accepted in a democratic society? The answer, in my considered view, as has also been stated by my learned brothers in their respective judgments, is an emphatic ‘No’,” said Justice Zubayer Rahman Chowdhury, a judge of the Appellate Division bench, in the full text of verdict.
In the full text of the judgment, the apex court upheld its earlier verdict that reformulated the 39-point code of conduct for its judges with a view to avoiding any misgiving and confusion under article 96 of the constitution.
On October 20 last year, the Appellate Division, led by Chief Justice Syed Refaat Ahmed, has delivered the verdict after disposing of a review petition filed by the previous government against a 2017 SC verdict that scrapped the 16th amendment to the constitution that empowered parliament to deal with the allegations against SC judges.
Before the 16th amendment was made in 2014, the Supreme Judicial Council — comprising the chief justice and two other senior judges of the Appellate Division — had the authority to probe such allegations and make necessary recommendations to the president for action.
But when the High Court, in May 2016, scrapped the 16th amendment, parliament lost its power to deal with the matter. However, the council could not be made functional as the then government challenged the HC verdict at the Appellate Division.
Even after the Appellate Division upheld the HC verdict in July 2017, paving the way for making the council functional, the government filed a review petition, which created the legal stalemate.
In the full text of judgement, the Appellate Division observed that “The Civil Review Petition is disposed of unanimously with the observations. Resultantly, Article 96 of the Constitution stands restored in its entirety without any ambiguity whatsoever.”
Justice Md Ashraful Kamal was appointed as an additional judge of the HC on December 12, 2010, for two years and his service was confirmed on December 10, 2012, during the regime of Sheikh Hasina-led government.
