Supreme Judicial Council, not parliament, will remove judges for incapacity or misconduct: SC

The Supreme Court today cleared the way for removal of its judges for incapacity or misconduct through the Supreme Judicial Council, instead of the parliament.
The Appellate Division of the Supreme Court today disposed of, with observations, the review petition challenging a High Court verdict that scrapped the 16th amendment to the constitution, which empowers parliament to remove the top court’s judges for incapacity or misconduct.
The constitutional provision for the Supreme Judicial Council to probe the allegations against any judge and the code of conduct of the judges issued by the apex court in the judgement of the 16th amendment case will remain effective, Attorney General Md Asaduzzaman told The Daily Star.
The observations will be known once the full text of the Appellate Division’s verdict is released.
In the full text of the verdict, the SC will make observation on whether there is any ambiguity in the provisions of Article 96 of the constitution regarding the resignation of the judges.
A six-member bench of the Appellate Division of the SC headed by Chief Justice Syed Refaat Ahmed passed the order after holding hearing on the review petition, challenging the SC verdict.
The Sheikh Hasina-led government had filed the 908-page review petition with the Appellate Division on December 24, 2017 outlining 94 grounds on which this court may consider the government’s prayer for restoring the 16th amendment, cancelling the provision of the Supreme Judicial Council (SJC) and striking out some of its observations.

The HC in May, 2016 declared the 16th amendment unconstitutional and void as it found the changes went against the principles of the separation of powers and the independence of the judiciary.
The government later filed an appeal against the HC verdict. The Appellate Division rejected the appeal and upheld the HC verdict.
In the full text of the verdict released on August 1, 2017, the Appellate Division said the provision of Supreme Judicial Council (SJC) for the removal of SC judges for misconduct or incapacity has been reinstated in the constitution.
In the verdict, the apex court also came up with a 39-point code of conduct it formulated for the SC judges in exercise of powers under the article 96 of the country’s charter.
The article 96 which was scrapped by the 16th amendment deals with the procedure for formation and functions of the SJC and formulation of the code of conduct.
The 16th amendment made in September 2014 had abolished the chief justice led SJC and restored parliament’s power to remove the judges. The amendment was challenged with the High Court.
In May 2016, the HC declared the amendment unconstitutional and void as it found the changes went against the principles of the separation of powers and the independence of the judiciary.
The government filed an appeal against the HC verdict. In July, 2016, the Appellate Division of the SC rejected the appeal and upheld the HC verdict.
In the full verdict, the Appellate Division said the independence of judiciary has been undermined and curtailed by making the judiciary “vulnerable to a process of removal of the judges by parliament”.

The procedure entailed in the SJC is more in consonance with the spirit of the constitutional scheme, it said, adding that the provision of the SJC is not only for the interest of justice, but also for the independence of judiciary.
Comprising the chief justice and two other senior judges of the Appellate Division, the SJC investigates allegations of misconduct of any judge and makes necessary recommendations to the president for the next course of action.
The original constitution of 1972 had empowered parliament to remove SC judges. But the fourth amendment to the constitution in 1975 scrapped parliament’s power and empowered the president to remove the SC judges.
The president’s power was curtailed in 1978 through a martial law proclamation and the SJC was introduced. It was ratified and validated by the fifth amendment to the constitution in 1979.
In 2005, the HC declared the fifth amendment illegal but condoned the introduction of the SJC.
In February 2010, the SC upheld the 2005 HC verdict, and said the system of SJC would be valid till December 31, 2011.
Around six months before the provision on the SJC was to expire, the Awami League-led government included it in the 15th amendment to the constitution, allowing the SJC to continue.
But later in September 2014, the AL government abolished the decades-old SJC.
In the full verdict, the apex court also said the independence of the judiciary is the foundation stone of the constitution and as contemplated by article 22, it is one of the fundamental principles of state policy.
The significance of an independent judiciary, free from the interference of other two organs of the government as embodied in article 22, has been emphasised in articles 94(4), 116A and 147 of the constitution, it added.
“Without a political tradition in which members of Parliament could clearly demonstrate that they can act neutrally and impartially if they are given the power of removal and will not be affected by the party’s views under article 70, the purported process of impeachment introduced by the 16th amendment would clearly undermine the independence of judiciary and will definitely alter the basic structure of the constitution,” said the verdict.
According to Article 70, a lawmaker has to vacate his or her seat if he or she votes in parliament against the party which nominated him or her.
“The object of this article is no doubt discernible that it is to ensure stability and continuity of government and also to ensure discipline among the members of the political parties so that corruption and instability due to political horse trading can be removed from national politics.
“By reason of article 70 of our constitution and its impact on members of Parliament leads to the irresistible conclusion that this new mechanism cannot be expected to function independently and neutrally if a judge attracts displeasure from the political party in power, he may be subjected to removal by parliament,” the SC said in the verdict.