IN THE SUPREME COURT OF BANGLADESH

   HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 9989 OF 2014 IN THE MATTER OF:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.

-AND- IN THE MATTER OF:

Advocate Asaduzzaman Siddiqui and others

....... Petitioners.

-Versus-

Bangladesh represented by the Cabinet Secretary, Cabinet Division, Bangladesh Secretariat, Police Station Shahbag, Dhaka-1000 and others

......Respondents.

Mr. Manzill Murshid with

Mr. Moyeen A. Firozze and

Mr. Sanjoy Mandal, Advocates

.....For the petitioners.

Mr. Mahbubey Alam, Attorney General with Mr. Md. Motaher Hossain (Sazu), DAG, Ms. Purabi Rani Sharma, AAG,

Mr. A.B.M. Mahbub, AAG and

Ms. Purabi Saha, AAG

….For the respondent no. 1.

Mr. Murad Reza, Additional Attorney-General with

Mr. Amit Talukder, DAG

….For the respondent no. 4.

1)   Dr. Kamal Hossain, Senior Advocate

2)   Mr. M. Amir-ul Islam, Senior Advocate

3)   Mr. Rokanuddin Mahmud, Senior Advocate and

4)   Mr. Ajmalul Hossain QC, Senior Advocate …. Amici Curiae

Heard on 28.05.2015, 18.06.2015, 02.07.2015, 30.07.2015, 06.08.2015, 19.08.2015, 20.08.2015, 02.09.2015, 03.09.2015, 09.09.2015, 11.11.2015,

01.12.2015, 02.02.2016, 03.02.2016, 04.02.2016, 23.02.2016, 03.03.2016 and 10.03.2016.

                   Judgment on 05.05.2016.

Present:

Mr. Justice Moyeenul Islam Chowdhury, Mr. Justice Quazi Reza-Ul Hoque

-And-

Mr. Justice Md. Ashraful Kamal

MOYEENUL ISLAM CHOWDHURY, J: 

On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioners, a Rule Nisi was issued calling upon the respondents to show cause as to why the Constitution (Sixteenth Amendment) Act, 2014 (Act No. 13 of 2014) (Annexure-‘A’ to the Writ Petition) should not be declared to be colourable, void and ultra vires the Constitution and/or such other or further order or orders passed as to this Court may seem fit and proper.

The case of the petitioners, as set out in the Writ Petition, in short, is as follows:

The petitioners are the practising Advocates of the Supreme Court of Bangladesh. They are also working under the umbrella of an organization under the name and style “Human Rights and Peace for Bangladesh” (HRPB) which is engaged in promoting and defending human rights and establishing the rule of law in the country. As officers of the Court, they are very conscious of the independence of the Judiciary. By virtue of the Constitution (Sixteenth Amendment) Act, 2014 (hereinafter referred to as the Sixteenth Amendment), Article 96 of the Constitution has been amended which contains the provisions relating to the power and procedure of the removal of the Judges of the Supreme Court of Bangladesh. The background of the initiative to amend the relevant provisions relating to the removal of the Judges of the Apex Court emanated from some incidents which took place in the recent past. One of them is that our Parliament passed a law of Contempt of Court in 2013 wherein some people were given undue privilege and exempted from the charge of Contempt of Court in a discriminatory manner and the vires of that law was challenged by way of a Public Interest Litigation. After hearing the parties, the High Court Division declared the said law of Contempt of Court of 2013 void and ultra vires the Constitution. Another step was taken to protect public servants from the charge of corruption and accordingly an amendment was made in the Anti-Corruption Commission Act of 2004. By the amendment, a provision was inserted in the Anti-Corruption Commission Act of 2004 to take permission from the Government in case of prosecuting any public servant thereunder. This amendment was also challenged by way of a Public Interest Litigation in the High Court Division and ultimately after hearing the parties, the High Court Division declared the amendment void and ultra vires the Constitution. Thereafter in a seven-murder case in Narayanganj, repeated allegations were made in both electronic and print media about the involvement of some personnel of the law-enforcing agencies; but no concrete step was taken

It is the duty of the Members of Parliament to enact necessary laws. But at present, they are also performing functions relating to all development activities in their respective constituencies and the whole administration is under their thumb. In most of the cases (Writ Petitions), the Government is the respondent; but the Members of Parliament are vitally interested in those cases arising out of the development activities in their local areas. Moreover, in the present context of Bangladesh, most of the Members of Parliament are from business sectors and by that reason, they have personal interest in those cases. Against this backdrop, the Judges of the Apex Court would suo motu be restrained from passing any order in the cases in which the Members of Parliament are interested. In view of the Sixteenth Amendment, any Member of Parliament can bring a motion against any Judge of the Supreme Court and discuss the same therein and due to this reason, no Judge will be able to perform his duties impartially and independently. In the long run, justice will be frustrated and administration of justice will collapse in no time. In India and other developed countries, the Judges of the Apex Courts may be removed by the resolutions of their respective Parliaments; but in our country, the influential people including the Members of Parliament ignore the law for their personal interest and that being so, the situation in Bangladesh is quite different. The primary objective of the Sixteenth Amendment is to destroy the principle of independence of the Judiciary and to render the Judiciary impotent and ineffective. Independence of the Judiciary is one of the basic features of the Constitution as expounded in Anwar Hossain Chowdhury and others…Vs…Bangladesh and others (popularly known as Eighth Amendment Case) [1989 BLD (SPL) 1] which has been reiterated and reaffirmed in Masdar Hossain’s Case [52 DLR (AD) 82]; but that independence has been compromised by the Sixteenth Amendment giving overwhelming authority to the Executive through the Parliament to remove the Supreme Court Judges. This is, no doubt, a death blow to the independence of the Judiciary and a blatant interference with the administration of justice.

The Sixteenth Amendment is ultra vires the Constitution as it is in direct conflict with and contradictory to the spirit of the Preamble of the Constitution. The power conferred upon the Parliament by the Sixteenth Amendment is beyond its scope and jurisdiction and is contrary to the basic features of the Constitution as investigation into misbehaviour or incapacity and recommending to the President for removal of the Judges of the Supreme Court is neither a legislative function, nor it is an act of scrutiny of the Executive action. The role of each organ of the State is clearly defined and deliberately and carefully kept separate under the Constitution to maintain its harmony and integrity and to maximize the effectiveness of the functionality of the organs of the State in their respective spheres. The Sixteenth Amendment has opened up the door for manipulation and exertion of control over the Judges of the Supreme Court of Bangladesh in their judicial functions. It is violative of Article 7B of the Constitution as no provisions relating to the basic structures of the Constitution shall be amendable by way of insertion, modification, substitution, repeal or otherwise. The Sixteenth Amendment blatantly destroys the spirit and essence of the provisions of Article 22 of the Constitution and thereby blurs the separation of powers among the different organs of the State and clearly establishes the domination of the Executive through the Parliament over the Judiciary which will create a great imbalance within the constitutional bodies and thereby make the Judiciary a mockery and a toothless and tearful silent witness. The principle of independence of the Judiciary and separation of powers are basic structures of the Constitution and as such the same can not be touched upon or taken away in any manner whatsoever. The Sixteenth Amendment is also ultra vires the Constitution as by dint of Article 70, the Members of Parliament can not express their independent views/opinions against their partyline and as a natural corollary thereto, the removal of the Judges of the Apex Court of Bangladesh will be prejudiced by its direct implication. Furthermore, the Sixteenth Amendment is ultra vires the Constitution as it has undermined the authority and dignity of the Apex Court because of the fact that the validity of the proceedings in the Parliament can not be questioned in any Court by virtue of Article 78 of the

In the Supplementary Affidavit dated 26.11.2014, it has been stated by the petitioners that in the Fifth Amendment Case, the High Court Division declared the Constitution (Fifth Amendment) Act, 1979 (Act No. 1 of 1979) illegal and void abinitio subject to certain condonations. The Appellate Division in the Fifth Amendment Case endorsed those condonations with some modifications. As per the judgment of the Appellate Division passed in the Fifth Amendment Case, the provisions relating to the Supreme Judicial Council were kept intact in the Constitution of Bangladesh. So the provisions of removal of the Judges of the Supreme Court of Bangladesh by the Supreme Judicial Council can not be substituted by the authority of the Parliament violating the verdict of the Appellate Division. The Judges of the Apex Courts in the UK, USA and India are removed by the resolutions of their respective Legislatures. Those countries have bicameral Legislatures, that is to say, two Houses each in their National Legislatures. The removal of the Judges of the Apex Courts by the Legislatures of the UK, USA and India is not only complicated, but also balanced by the two Houses of the Legislatures. But on the contrary, Bangladesh has a Parliament (to be known as the House of the Nation) consisting of only one House which may lead to impairment of judicial independence by way of removal of the Judges of the Supreme Court by its single House. Moreover, as the social and democratic practices of those countries are different from those of Bangladesh, the removal of the Judges of the Supreme Court of Bangladesh by our Parliament will endanger the independence of the Judiciary; because there is every possibility of using the weapon of the Sixteenth Amendment being politically motivated.

In the Supplementary Affidavit dated 27.05.2015, it has been mentioned by the petitioners that the Sixteenth Amendment is inconsistent with and violative of Article 147 (2) of the Constitution which provides that the remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this Article applies shall not be varied to the disadvantage of any such person during his term of office. As per Article 147(4) of the Constitution, this Article (Article 147) applies, amongst others, to the office of a Judge of the Supreme Court. The Sixteenth Amendment has undoubtedly varied the removal mechanism of the sitting Judges of the Supreme Court of Bangladesh for their misconduct or incapacity to their disadvantage. As such the Sixteenth Amendment is illegal and void.

The Sixteenth Amendment will also directly affect the Election Commissioners, Comptroller and Auditor-General, Members of the Public Service Commission as well as Members of the Anti-Corruption Commission. By virtue of this Amendment, they will be removed in like manner as a Judge of the Supreme Court according to Articles 118(5), 129(2) and 139(2) of the Constitution of Bangladesh and Section 10(3) of the Anti-Corruption Commission Act, 2004 respectively. The independence of the Commissioners of the Anti-Corruption Commission and the Comptroller and Auditor-General of Bangladesh will be in jeopardy inasmuch as they will not be able to act impartially and effectively against the misdeeds of the concerned Members of Parliament who are their real bosses. One of the main components of judicial independence is strong protection against removal from office. That international standard on judicial removal has been emphasized in the “UN Basic Principles On The Independence Of the Judiciary” as adopted by the General Assembly in 1985. The Judges of the Supreme Court can not be removed without proven misconduct or incapacity by a fair, unbiased, independent and impartial body who is free to conduct the inquiry and make a determination on its own from the influence of the other branches of the State. The Sixteenth Amendment by way of giving power of removal of the Judges of the Supreme Court to the Members of Parliament is definitely against the spirit of the independence of the Judiciary. This amendment has been made in exercise of the derivative power of the Constitution and this will not automatically make the amendment immune from challenge by way of judicial review. No amendment to the Constitution can be made in exercising derivative power violating the existing provisions of the Constitution and the limitations imposed by it. So the Sixteenth Amendment is ultra vires the Constitution.

The respondent no. 1 has contested the Rule by filing an Affidavit-in- Opposition. The case of the respondent no. 1, as set out in the Affidavit-in- Opposition, in short, runs as follows:

In the Fifth Amendment Case, all martial law proclamations, martial law regulations, martial law orders made/promulgated during the period between 20th August, 1975 and 9th April, 1979 which were validated by the Act No. 1 of 1979 was declared illegal, void abinitio and ultra vires; but those were provisionally condoned until 31st December, 2012 so as to enable the Parliament to make necessary amendment to the Constitution (vide judgment and order dated 11th May, 2011 passed by the Appellate Division in Civil Review Petition Nos. 17-18 of 2011). So it is totally a misconceived idea that in the Fifth Amendment Case, the Appellate Division of the Supreme Court by its observation favoured to retain or condone the provisions of the Supreme Judicial Council which were introduced by General Ziaur Rahman. Thereafter the Constitution (Fifteenth Amendment) Act was passed in 2011 which endorsed the system of the Supreme Judicial Council which may be considered as a departure from the original provisions of the Constitution relating to removal of the Judges of the Supreme Court by the Parliament. Finally it was thought expedient and necessary to restore/revive the original provisions of the Constitution about removal of the Supreme Court Judges through the Parliament which were introduced in Article 96 of the original Constitution and therefore, the Sixteenth Amendment was passed in 2014 reviving the relevant provisions (provisions of Article 96) of the original Constitution. The Sixteenth Amendment is not intended to dominate the Judiciary by the Executive through the Legislature

undermining its independence. In the instant Writ Petition, no public interest is involved for which the Sixteenth Amendment can be challenged in the form of judicial review of any legislative action nor the same is amenable to judicial review. The Sixteenth Amendment is not ultra vires; rather it is intra vires the Constitution which can not be called in question by way of judicial review in that the same has revived and restored the original provisions of Article 96 of the Constitution (barring age limit) relating to removal of the Supreme Court Judges. As the Parliament has restored the original provisions of Article 96 of the Constitution, the Sixteenth Amendment can not be subjected to judicial scrutiny. No provision of the original Constitution as enacted and adopted by the Constituent Assembly in 1972 can be judicially reviewed.  

Public perception regarding the functions of the Supreme Judicial Council is that it is not effective and vibrant so as to investigate and remove a Judge on the ground of proved incapacity or misbehaviour. Besides, in the recent past, the conduct of two sitting Judges of the High Court Division, as reported in the media, was not taken into account and dealt with properly by the Supreme Judicial Council. The Minister for Law, Justice and Parliamentary Affairs raised all those issues while making his address in the Legislature in connection with the passing of the Sixteenth Amendment and he also clarified the intention of the Legislature in this respect. By enacting the Sixteenth Amendment, the Government has taken the necessary initiative to maintain the high judicial standard of the Supreme Court Judges and to keep their jobs secured following the best practices of the contemporary world. The system of parliamentary removal of Judges has a long history. It

was developed in the 18th century in England to ensure that the King could only dismiss a Judge if both Houses of Parliament passed a resolution or “address” calling for the removal of the Judge. Parliamentary removal procedure is in place in 33% Commonwealth jurisdictions. The Westminster model of parliamentary removal of Judges as has been reintroduced in Bangladesh through the Sixteenth Amendment is a standard mechanism of removal of Judges of the Supreme Court of Bangladesh for their proved misbehaviour or incapacity. The Government is committed to restore and revive the provisions of the original Constitution of 1972 in phases and as a part of this initiative, Article 96 of the original Constitution has been revived and restored through the Sixteenth Amendment.

It is not true that the Members of Parliament have been empowered to perform the functions of all development activities of their local areas and the whole administration is under their control. Though the Government has made them advisers to the Upazilla Parishads, yet it does not necessarily mean that they control the whole of the local administration. The Members of Parliament have no scope to act arbitrarily and illegally. There is not a single instance that exposes the interest of the Members of Parliament in any case where the Judges of the Supreme Court have restrained themselves from passing any order in connection therewith. There is rule of law in the country. Separation of powers among the 3(three) organs of the State is a unique feature of our Constitution so that one organ of the State can not encroach upon the domain of another. In fact, the petitioners have virtually admitted that in India and other developed countries, the Judges of the Apex Courts are removed by a resolution of the Parliament which is one of the fundamental structures of the Constitution of a democratic country. Bangladesh being a democratic country also upholds the spirit of democracy and the rule of law. So the Sixteenth Amendment has not destroyed the independence of the Judiciary in any way. Rather it has changed the process of removal of the Judges of the Supreme Court of Bangladesh on the ground of proved misbehaviour or incapacity shifting from the Supreme Judicial Council to the Parliament. The Preamble of the Constitution is not in conflict with Article 96 of the original Constitution. Besides, the Sixteenth Amendment is not violative of Article 7B of the Constitution. In the UK, USA, Australia, Canada, India, South Africa and others countries, the same mechanism of parliamentary removal of the Judges of the higher Judiciary has been in place. In all those countries, the question of undermining the independence of the Judiciary and hampering the separation of powers among the 3(three) organs of the State has not arisen at all.

It is not correct that by reason of Article 70 of the Constitution, the Members of Parliament can not express their independent views and opinions against the stance of their respective parties. Every Member of Parliament has the right to express his/her opinion in the Parliament. Removal of Judges is not a political issue; rather it is a delicate constitutional issue that demands a debate in the Parliament among all the members irrespective of their political identity. Parliament does not generally involve itself in investigation and inquiry process on the allegation of misbehaviour or incapacity of any Supreme Court Judge. Almost in all jurisdictions, a separate, independent and impartial authority has been created to investigate or inquire into any allegation levelled against any Judge of the Apex Court by an Act of Parliament for the sake of fairness, transparency and objectivity and the said investigating or inquiring authority is quite distinct and separate from the Legislature or the Executive organ of the State. An accused Judge will be fully entitled to defend himself during investigation or inquiry, as the case may be. That being so, he will not suffer any prejudice on any count.

The statement made in the Writ Petition that the Sixteenth Amendment has undermined the authority and dignity of the Apex Court because of the fact that the validity of the proceedings in the Parliament can not be called in question in any Court by reason of Article 78 of the Constitution is quite meaningless and unwarranted. The Constitution itself has given the mandate that the validity of the Parliamentary proceedings shall not be called in question in any Court of law. Being the sovereign law- making body, Parliament’s proceedings are immune from judicial interference. This is a universal practice prevailing all over the world. Had Article 96 of the Constitution not been unconstitutionally and illegally amended by the unconstitutional military regime introducing the system of the Supreme Judicial Council, the Sixteenth Amendment would not have been required to restore Article 96 to its original position of 1972. The Supreme Court is the guardian of the Constitution, but not the supervisor of the whole Governmental process. The Sixteenth Amendment is a valid piece of legislation. So the Rule is liable to be discharged. 

In the Supplementary Affidavit-in-Opposition filed on behalf of the respondent no. 1, it has been stated that the respondent no. 4 by a Memo being No. 55.00.0000.105.53.001.15-68 dated 01.03.2016 forwarded a draft

bill prepared under Article 96 (3) of the Constitution titled “h¡wm¡−cn p¤fË£j ®L¡−VÑl ¢hQ¡lLN−Zl Apc¡QlZ h¡ Ap¡jbÑÉ (ac¿¹ J fËj¡Z) BCe, 2016” to the Registrar- General of Bangladesh Supreme Court, Dhaka for the considered opinion of

the Supreme Court of Bangladesh.

The case of the respondent no. 4, as set out in the Affidavit-in- Opposition, in brief, is as follows:

The Writ Petition has been filed by the petitioners invoking Article

102 of the Constitution as Public Interest Litigation (PIL) for the purpose of challenging the vires of the Constitution (Sixteenth Amendment) Act, 2014. Admittedly the petitioners are not “persons aggrieved.” As the petitioners

are not aggrieved persons, the Writ Petition in the nature of Public Interest Litigation is not maintainable. It has been provided in Section 2(3) of the Constitution (Sixteenth Amendment) Act, 2014 that the Parliament may by

law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehaviour or incapacity of a Judge. As the Parliament is yet to make any law pursuant to clause (3) of the amended Article 96 of the Constitution, the Writ Petition is premature. In other words,

no cause of action has arisen to file the Writ Petition and that being so, the

Writ Petition is incompetent. However, the Sixteenth Amendment has not undermined the basic principles of separation and independence of the Judiciary. On the contrary, it has brought back the main spirit of the original Constitution which the sovereign people of Bangladesh conferred upon themselves in 1972 through their elected representatives who formed the Constituent Assembly. In fact, Article 96 of the Constitution, as it stands

after the Sixteenth Amendment, is the same as Article 96 of the original

Constitution of 1972. It may be mentioned that the usurper of power suspended, subverted and mutilated the Constitution illegally by the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977), so far as it relates to insertion of Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions relating to the Supreme Judicial Council which were subsequently endorsed and ratified by the Constitution (Fifth Amendment) Act, 1979. As the Sixteenth Amendment has restored the original provisions of Article 96 of the Constitution, the same can not be declared void and ultra vires the Constitution. In Italian Marble Works…Vs…Bangladesh, 2006 (Special Issue) BLT (HCD) 1, the High Court Division declared the Constitution (Fifth Amendment) Act, 1979 null and void. Thereafter on appeal, the Appellate Division affirmed the decision of the High Court Division with some modifications and condonations in Khondker Delwar Hossain Secretary, BNP and another…Vs…Bangladesh Italian Marble Works and others, 62 DLR (AD) 298. In particular, the provisions embodied in Clauses (2), (3), (4), (5), (6) and (7) of Article 96 were condoned by the Appellate Division in the case of Khondker Delwar Hossain (Fifth Amendment Case). Subsequently on review of its own decision, the Appellate Division, by its judgment and order dated 29th March, 2011 passed in Civil Review Petition Nos. 17-18 of 2011(Bangladesh represented by the Secretary, Ministry of Industries and others…Vs…Bangladesh Italian Marble Works Limited and others) held, inter alia, that the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) inserting Clauses (2), (3), (4), (5), (6) and (7) in Article 96 and also clause (1) in Article 102 of the

Constitution were provisionally condoned till 31st December, 2012. The condonation of the provisions relating to the Supreme Judicial Council in Article 96 of the Constitution was a provisional one for a very limited period. But the Parliament in its own wisdom has reverted to the original Article 96 of the Constitution by passing the impugned Sixteenth Amendment. So it is an absurd proposition that the Sixteenth Amendment is contrary to the Constitution.

By the Sixteenth Amendment, no situation has been created to dominate the judiciary indirectly and the justice-seekers will not be prejudiced in any way in getting fair play from the Supreme Court of Bangladesh. No petition for judicial review can be entertained on mere assumptions and surmises that the administration of justice will be obstructed by the Sixteenth Amendment. The statements made in the Writ Petition with reference to the background of the initiative to amend the provisions of removal of the Judges of the Supreme Court resulted from some incidents which occurred in the recent past such as passing of the Contempt of Courts Act, 2013 which was ultimately declared null and void by the High Court Division; the amendment of the Anti-Corruption Commission Act of 2004 allegedly brought in to protect the Government officers from the charge of corruption which was also declared null and void by the High Court Division and a direction from the High Court Division to arrest the concerned officers of the law-enforcing agencies in a seven- murder case in Narayanganj etc. are vehemently denied. Such kind of wild, imaginary and baseless propositions on the part of the petitioners are nothing, but a deliberate insult upon the wisdom and integrity of the

Legislature which voices the will of the sovereign people. Such statements also go against the principle of law that all the Judges of the Supreme Court of Bangladesh are oath-bound to perform their duties without fear or favour and affection or ill-will. According to Article 7 of the Constitution, all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, the Constitution. Those powers of the people have been reflected in Article 52, 57, 74 and 96 of the original Constitution relating to the impeachment of the President, resignation of the Prime Minister and removal of the Speaker and a Judge of the Supreme Court by the resolutions of the Parliament respectively. Although the provisions of Article 52, 57 and 74 of the Constitution still remain unchanged, the usurper, that is to say, the Martial Law Authority inserted the provisions of removal of a Judge of the Supreme Court by the Supreme Judicial Council which runs counter to the spirit of Article 7. The usurper i.e. the then military ruler in so doing by way of a Martial Law Proclamation purported to Act as ‘holier than the Pope’, but in fact, his very intention was to take away the power of the people who are entitled to exercise through their elected representatives in the Parliament. In most democratic countries of the world, such as the United Kingdom, United States of America, Canada, Australia, Ireland, India etc., the principle of accountability of the Judges of the superior Courts to the people through their elected representatives in the Parliament is maintained. So in our instance, the Sixteenth Amendment has not affected the principles of separation of powers and independence of the Judiciary at all. These basic structures of the Constitution, precisely speaking, have remained unaffected. The wisdom of the Parliament in passing the Sixteenth Amendment is not subject to judicial review. However, the Sixteenth Amendment was passed by the Parliament by virtue of the power provided in Article 142 of the Constitution. This amendment does not curtail the independence of the Judges of the Supreme Court of Bangladesh in discharging their judicial functions. The apprehension of the petitioners that the Judges of the Apex Court will suo motu be restrained from passing any orders in the cases in which the Members of Parliament are interested is unfounded and baseless. The Judges of the Supreme Court will preserve, protect and defend the Constitution and the laws of Bangladesh in view of their oath of office. The further apprehension of the petitioners that in accordance with the amended Article 96 of the Constitution, a Member of Parliament can bring a motion against a Judge and discuss it in the Parliament and because of this reason, the Judge will not be able to perform his duties independently in respect of the case concerned is ill-conceived. Anyway, there is a presumption of constitutionality in favour of the impugned Sixteenth Amendment. Consequently the burden of rebuttal of the presumption of constitutionality of the Sixteenth Amendment lies on the shoulder of the petitioners. This burden can not be discharged by mere speculations, surmises, conjectures and apprehensions.

Like India, Bangladesh follows the Westminster type of democracy and our Parliament is democratic which consists of democratically elected representatives of the people. In the Parliament, every proceeding is initiated and completed democratically pursuant to the Constitution and the Rules of Procedure of Parliament by following democratic norms, practices, customs and traditions. Against this backdrop, there is no basis for suspecting that the Members of Parliament may create obstruction to the administration of justice. Furthermore, it is an absurd proposition on the part of the petitioners that unlike the Members of Parliament in other countries, our Members of Parliament are influential people and in most cases, they ignore law for their personal interest and that the overall scenario in this regard is different in Bangladesh. In our subcontinent, only in Pakistan, there is a provision in its Constitution for removal of the Judges of the higher Judiciary by the Supreme Judicial Council. In Bangladesh, our Parliament in its wisdom preferred to revive the original provisions of removal of the Judges of the Supreme Court of Bangladesh by the orders of the President passed pursuant to the resolutions of the Parliament supported by a majority of not less than two-thirds of the total Members of the Parliament on the ground of their proved misbehaviour or incapacity which the Constituent Assembly originally adopted in 1972 following the constitutional provisions of the developed countries of the world. The Sixteenth Amendment has upheld the most important basic structure of the Constitution i.e. sovereignty of the people and implementation of their desire through their elected representatives. In addition, an amendment of the Constitution is always tested by the touchstone of the spirit of the original Constitution which is the sovereign will of the people. Besides, Article 70 of the Constitution is designed to strengthen democracy and ensure discipline among the Members of Parliament belonging to different political parties. This Article (Article 70) is not a roadblock to the independence of the Judiciary. So the Sixteenth Amendment is valid and intra vires the Constitution.

At the outset, Mr. Manzill Murshid, learned Advocate appearing on behalf of the petitioners, submits that the petitioners are all Advocates of the Supreme Court of Bangladesh and in this perspective, they are interested in the independence of the Judiciary and the rule of law and by that reason, they have come up with the present Writ Petition in the nature of Public Interest Litigation and as such the Writ Petition is maintainable.

Mr. Manzill Murshid also submits that although no law has yet been enacted by the Parliament in accordance with the amended Article 96(3) of the Constitution, yet the fact remains that the petitioners have the locus standi to challenge the vires of the Sixteenth Amendment independently on its own merit and the challenge of the constitutionality of the Sixteenth Amendment has no nexus with the contemplated law to be framed by the Parliament in the future and this being the landscape, the Writ Petition is not premature.

Mr. Manzill Murshid further submits that the people are very much concerned with the independence of the Judiciary and the rule of law inasmuch as these are 2(two) basic structures of the Constitution and the petitioners have voiced the concern of the people thereabout by filing the Writ Petition in the nature of Public Interest Litigation in view of the fact that the petitioners being Advocates of the Supreme Court of Bangladesh are the officers of the Court and they have great stakes in the rule of law through the administration of justice and from this point of view, this Public Interest Litigation is very much competent under Article 102 of the Constitution. In this context, the decision in the case of  National Board of Revenue…Vs…Abu Saeed Khan and others reported in 18 BLC (AD) 116 adverted to both by the Attorney General Mr. Mahbubey Alam and the Additional Attorney-General Mr. Murad Reza has no manner of application to the facts and circumstance of the case before us.

Mr. Manzill Murshid also submits that through the Sixteenth Amendment, the power of removal of the Judges of the Supreme Court has been shifted to the Parliament which is a separate independent organ of the State in the scheme of the Constitution and by this amendment, a sort of situation has been created to dominate the higher Judiciary in an indirect manner which will ultimately affect the justice-seekers and this indirect control of the higher Judiciary by the Executive through the Parliament is contrary to the independence of the Judiciary and the rule of law and considered from this standpoint, the Sixteenth Amendment is ultra vires the Constitution. 

Mr. Manzill Murshid next submits that if any amendment to the Constitution does not fit in with the Constitution itself, then the amendment is to be declared void and ultra vires in that the Constitution is a logical whole and if by exercising the amending power, one of the basic pillars of the Constitution is sought to be demolished, it is the constitutional duty of the Supreme Court to restrain it and when the Parliament and the Executive, instead of implementing the independence as well as separation of the Judiciary, follow a different course not sanctioned by the Constitution, the higher Judiciary will be within its jurisdiction to bring back the Parliament and the Executive from constitutional derailment and to pass necessary orders to declare Article 96 of the Constitution as inserted by the Sixteenth Amendment as void.

Mr. Manzill Murshid further submits that the primary objective of the Sixteenth Amendment is to destroy the principle of independence of the Judiciary and to make the Judiciary subservient to the Executive through the Parliament and the principle of independence of the Judiciary is one of the basic features of the Constitution as expounded in the case of  Anwar Hossain Chowdhury and others…Vs…Bangladesh and others  (popularly known as Eighth Amendment Case) [1989 BLD (SpI) 1] which has been reiterated and reaffirmed in Masdar Hossain’s Case [52 DLR (AD) 82]; but the Sixteenth Amendment has given overwhelming authority to the Executive through the Parliament to remove the Judges of the Supreme Court which is a vicious blow to the independence of the Judiciary.

Mr. Manzill Murshid also submits that the power to frame the Constitution belongs to the people alone─ that is ‘constituent power’ and it is original power, but the power to amend the Constitution is a ‘derivative power’ derived from the Constitution itself which is to be exercised subject to certain limitations and the people after making the Constitution gave the Parliament the power to amend it in exercise of its legislative power following certain special procedures and even if the constituent power is vested in the Parliament, that power is a derivative one and an amendment made in exercise of the derivative constituent power will not automatically make the said amendment immune from challenge by way of judicial review and no amendment to the Constitution can be made in exercise of the derivative power violating the existing provisions of the Constitution and the limitations imposed thereby.

Mr. Manzill Murshid next submits that the Sixteenth Amendment is violative of Article 7B of the Constitution as no provisions relating to the basic structures of the Constitution shall be amendable by way of insertion, modification, substitution, repeal or otherwise and as the Sixteenth Amendment has affected the independence of the Judiciary and separation of powers, two basic structures of the Constitution, the same is liable to be struck down as being unconstitutional.

Mr. Manzill Murshid further submits that the power conferred upon the Parliament by the Sixteenth Amendment is beyond the scope and jurisdiction of the Parliament on the score that causing of any investigation of misbehaviour or incapacity of any Judge of the Supreme Court and recommending to the President for his removal from office are neither legislative functions nor those are acts of scrutiny of the Executive actions; rather those functions are judicial in nature and the Constitution does not allow or contemplate any judicial role by the Parliament and the role of each organ of the State is clearly defined and carefully kept separate under the Constitution to maintain its harmony and integrity and to maximize the effectiveness of the functionality of the 3(three) organs of the State, that is to say, the Executive, the Legislature and the Judiciary and the assumption of the judicial role by the Parliament in the matter of removal of the Judges of the Supreme Court derogates from the theory of separation of powers as enshrined in our Constitution and this is why, the Sixteenth Amendment is unconstitutional.

Mr. Manzill Murshid also submits that the Sixteenth Amendment is ultra vires the Constitution as it blatantly and shockingly destroys the spirit and essence of the provisions of Article 22 of the Constitution and clearly establishes the dominance of the Executive over the Judiciary through the Parliament which will create a great imbalance within the constitutional bodies and thereby make the Judiciary a toothless and tearful silent witness to the dismantling of the constitutional fabric.

Mr. Manzill Murshid further submits that the Sixteenth Amendment is unconstitutional in view of the fact that by virtue of Article 70, the Members of Parliament can not exercise their voting right independently against their partyline and given this position, the removal of the Judges of the Apex Court will certainly be prejudiced by the direct implication of Article 70 of the Constitution and this Article 70 has virtually fastened the hands of the Members of Parliament in the matter of exercise of their voting right and hence in case of voting for taking any resolution for removal of a Judge, they will have to toe the partyline leading to the politically motivated resolution frustrating the independence of the higher Judiciary.

Mr. Manzill Murshid also submits that the Supreme Court of Bangladesh being the guardian of the Constitution should not countenance any inroad upon its independence as it shall alone have overall control, supervision and management over the powers, functions and jurisdictions of its own as well as those of the subordinate Courts as an independent institution and the legislators and the political executives shall have no control, supervision and management over them in any manner whatsoever and hence the Sixteenth Amendment is ultra vires the Constitution.

Mr. Manzill Murshid next submits that the independence of the Judiciary, especially its institutional independence, as affirmed and declared particularly by Articles 94(4) and 116A, is one of the basic pillars of the Constitution and it can not be demolished, whittled down, curtailed or diminished in any manner whatsoever and the Constitution does not give the Parliament or the Executive any authority to curtail or diminish the independence of the Judiciary by having recourse to any amendment of the Constitution, other legislation, subordinate legislation, rules or in any other manner as found by the Appellate Division in Masdar Hossain’s Case (supra) and since the Sixteenth Amendment is an implied violation of Article 94(4) of the Constitution, the same should be struck down.

Mr. Manzill Murshid further submits that as per Article 112 of the Constitution, all authorities, whether executive and judicial, in the Republic shall act in aid of the Supreme Court and from this point of view, the Parliament can not make any law bypassing the binding effect of the judgment rendered by the Appellate Division in the Fifth Amendment Case (Khondker Delwar Hossain Secretary, BNP and another…Vs…Bangladesh Italian Marble Works and others, 62 DLR (AD) 298) whereby the Appellate Division declared the Constitution (Fifth Amendment) Act, 1979 (Act No. 1 of 1979) illegal and void subject to some modifications and condonations, holding, inter alia, that the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977), so far as it relates to insertion of Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions relating to the Supreme Judicial Council are condoned, and therefore, the provisions of removal of the Judges of the Supreme Court of Bangladesh by the Supreme Judicial Council can not be substituted by the authority of the Parliament violating the verdict of the Appellate Division and what is more, the condonation as regards the provisions of the Supreme Judicial Council was also maintained by the Appellate Division in the judgment of the Civil Review Petition Nos. 17-18 of 2011.

Mr. Manzill Murshid also submits that in the case of People’s Union For Civil Liberties (PUCL) and another…Vs…Union of India and another, (2003) 4 SCC 399,  the Supreme Court of India held in paragraph 34 that ‘the Legislature has no power to review the decision and set it at naught except by removing the defect which is the cause pointed out by the decision rendered by the Court and if this is permitted, it would sound the death knell of the rule of law’ and the Supreme Court also held in paragraph 37 that ‘the Legislature also can not declare any decision of a court of law to be void or of no effect’ and that the Legislature can not encroach upon the judicial sphere and hence the Supreme Court also held in paragraph 112 that ‘the Legislature can not overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the Legislature can not trench on the judicial power vested in the Courts’.

 Mr. Manzill Murshid further submits that in the case of  Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2) and in Municipal Corpn. of the City of Ahmedabad…Vs…New Shrock Spg. and Wvg. Co. Ltd., (1970) 2 SCC 280, the Indian Supreme Court also held similar views as in Civil Liberties and given this scenario, it is manifestly clear that by the Sixteenth Amendment, the Parliament has undermined the authority of the Supreme Court of Bangladesh which has kept the Supreme Judicial Council intact in the Constitution in its judgment in the Fifth Amendment Case and thereby  the  Parliament has  destroyed  one  of the  basic  structures of  the Constitution, namely, independence of the Judiciary.

Mr. Manzill Murshid also submits that the background of the initiative to amend the provisions of removal of Judges dates back to some recent incidents, namely, declaring the Contempt of Courts Act, 2013 illegal and void, declaring an amended provision of the Anti-Corruption Commission Act, 2004 purporting to give protection to the Government officers unlawful and void and the directive issued to the concerned authority to arrest some accused officers of the law-enforcing agencies in a seven-murder case in Narayanganj by the High Court Division and such being the state of affairs, the Executive, at the instance of some interested quarters, took steps for the enactment of the Sixteenth Amendment and accordingly the same was enacted with a view to interfering with the freedom of the Judges in the discharge of their judicial functions with the ulterior motive of creating undue pressure upon the administration of even-handed justice to the litigant people and by this reason, the Sixteenth Amendment is definitely a colourable legislation.

Mr. Manzill Murshid next submits that the Judges of the superior Courts of the UK, USA, Canada, Australia and India are removed by their National Parliaments and in those countries, the Members of Parliaments do not perform any administrative functions as are being performed by the Members of Parliament in our country and furthermore, the social and democratic practices of those countries are quite different from those of Bangladesh and as such the Parliamentary removal mechanism in Bangladesh is inappropriate and unsuitable; rather the possibility of misuse of this weapon being politically motivated can not be brushed aside at all.

Mr. Manzill Murshid further submits that there are many countries in the world where Judges are removed without the intervention of the Legislature and the modes of removal of the Judges of some of those countries are: (a) In Pakistan, the Supreme Judicial Council functions vide Article 209 of the Constitution of Pakistan, 1973 for removal of Judges. The said Supreme Judicial Council also functions under the Supreme Judicial Council Procedure of Enquiry, 2005 and the Code of Conduct for Judges of the Supreme Court and the High Courts of Pakistan. (b) By Article 98, the Constitution of Zambia Act provides that the President shall remove a Judge of the Supreme Court from his office upon having a report and /or advice from a Three-Member-Tribunal formed in that behalf headed by a Chairman. (c) The Constitution of the Republic of Fiji by its Article 111 provides that the President of the Republic must act on the advice of the Tribunal or the Medical Board in case of removal of the Chief Justice or the President of the Court of Appeal. In the similar way, Article 112 provides that the President of the Republic must act on the advice of the Tribunal or the Medical Board in case of removal of the other Judges/Judicial officers. (d) The Constitution of the Republic of Namibia also has similar provisions in its Article 84; as per Article 84(1), a Judge may be removed from office before expiry of his or her tenure only by the President acting on the advice of the Judicial Service Commission. (e) By Article 98, the Constitution of Singapore provides that the President may, on the recommendation of the Tribunal, remove any Judge of the Supreme Court from his/her office. (f) The Constitution of Republic of Bulgaria provides in its Article 129(1) that Judges, Prosecutors, and Investigating Magistrates shall be elected, promoted, demoted, transferred and removed from office by the Supreme Judicial Council. In this connection, Mr. Manzill Murshid claims that all those countries have similar types of procedures for removal of Judges which the Constitution of Bangladesh had earlier in the form of the Supreme Judicial Council and the independence of the Judiciary will be best guaranteed if the Judges of the Supreme Court of Bangladesh are removed in accordance with the provisions of Article 96 as incorporated in the Constitution by the Constitution (Fifteenth Amendment) Act, 2011 (Act No. 14 of 2011).

Mr. Manzill Murshid next submits that the Sixteenth Amendment is inconsistent with and violative of Article 147(2) of the Constitution which provides that the remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this Article applies shall not be varied to the disadvantage of any such person during his term of office and as per Article 147(4) of the Constitution, this Article, amongst others, applies to the office of the Judge of the Supreme Court and the Sixteenth Amendment has undoubtedly affected the terms and conditions of service of the incumbent Judges of the Supreme Court and they have been prejudiced thereby because of variation of their terms and conditions to their disadvantage while in service and the Sixteenth Amendment is liable to be knocked down as being unconstitutional on this count also.

Mr. Manzill Murshid further submits that for impeachment and removal of the President of the Republic, detailed provisions have been spelt out in Articles 52 and 53 of the Constitution; but for removal of the Judges of the Supreme Court under the amended Article 96(2), details have been left to the Parliament to be worked out in the form of a law pursuant to the amended Article 96(3) and that is incongruous and even if an ordinary law is passed pursuant thereto, it will be subject to frequent changes by simple majority of the Members of Parliament in the interest of the party-in-power jeopardizing the independence of the Judiciary. 

Mr.  Manzill  Murshid  next submits that  the  Sixteenth  Amendment contains an inherent weakness, that is to say, the amended Article 96(2) requires a resolution to be passed by a majority of not less than two-thirds of the total number of Members of Parliament and in the absence of such majority, there may arise a complication in passing the resolution, which may ultimately provide the concerned Judge with a blank cheque for his misbehaviour or incapacity and in India, a motion was lost in Lok Sabha in 1992 in spite of a finding of guilt by a committee formed under the Judges (Inquiry) Act, 1968 against one V. Ramaswami J, the then Chief Justice of Punjab and Haryana High Court because of not having the required votes in the House since the members of a major political party, namely, Congress were absent therein (Mrs. Sarojini Ramaswami…Vs…Union of India and others, AIR 1992 SC 2219) and in our instance, the same may be replicated if the Sixteenth Amendment is maintained by this Court.

Mr. Manzill Murshid further submits that the tenure of the Judge is very vital in maintaining the integrity of the Judiciary and is pivotal in maintaining and upholding the independence of the Judiciary as expounded by the Appellate Division in Masdar Hossain’s Case and in that context, the removal of the Judges of the Apex Court must be by an appropriate process for the sake of fairness, transparency and avoidance of arbitrariness and since the process of voting in the Parliament is a political process, the amended Article 96(2) is against the fundamental principle of rule of law and in such view of the matter, the Sixteenth Amendment will make the Judges susceptible to a capricious political process of voting in the Parliament which may pass a resolution for removal of an innocent Judge on the one hand, or may not do so in the case of a guilty Judge on the other hand and in any case, a Judge may be left at the mercy of the Parliament impairing the independence of the Judiciary.

Mr. Manzill Murshid next submits that though the duty of the Members of Parliament is to frame laws; but in the present context, they are also performing the functions of all development activities in their local areas and the whole local administration is under their control and as such they will not hesitate to act arbitrarily or illegally as a result of which the powerless people will be compelled to resort to the High Court Division and in most of the cases (Writ Petitions), the Government is the respondent and that being so, the Members of Parliament will be interested in those cases and by virtue of the Sixteenth Amendment, a Member of Parliament can bring a motion against any Judge in any case and discuss it therein necessitating his character-assassination and consequently the Judge may not be able to perform his duties independently to the great detriment of public interest.

Mr. Manzill Murshid also submits that the Sixteenth Amendment shall have far-reaching negative impact on the discharge of the functions of the Members of the Public Service Commission, Comptroller and Auditor- General, Election Commissioners as well as Commissioners of the Anti- Corruption Commission inasmuch as they will be removable in the like manner as a Judge of the Supreme Court of Bangladesh as per Articles 139 (2), 129(2), 118 (5) of the Constitution of Bangladesh and Section 10(3) of the Anti-Corruption Commission Act, 2004 respectively and if the power of removal of the Judges of the Supreme Court is retained in the hands of the Members of Parliament, in particular, the Anti-Corruption Commission will not be able to act independently against them which will eventually frustrate the purpose of the Anti-Corruption Commission Act and the Comptroller and Auditor-General will also be self-restrained from acting independently while auditing the accounts of the Parliament Secretariat and as such the Sixteenth Amendment should go.

Per contra, Both Mr. Mahbubey Alam, learned Attorney General appearing on behalf of the respondent no. 1 and Mr. Murad Reza, learned Additional Attorney-General appearing on behalf of the respondent no. 4, contend that the Sixteenth Amendment is not intended to dominate the Judiciary by the Executive through the Legislature and as the provisions relating to the Supreme Judicial Council were introduced in Article 96 of the Constitution by the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) by General Ziaur Rahman during the period of Martial Law mutilating the Constitution, the Sixteenth Amendment was enacted by the Parliament restoring Article 96 of the original Constitution of 1972 and that being so, it can not be said at all that the Sixteenth Amendment is violative of the independence of the Judiciary, one of the basic features of the Constitution as held by the Appellate Division in the Eighth Amendment Case.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that admittedly the petitioners are not aggrieved persons, though they are the Advocates of the Supreme Court of Bangladesh and as they are not aggrieved persons within the meaning of Article 102 of the Constitution, they can not come up with the instant Writ Petition in the nature of Public Interest Litigation and as such the Writ Petition is not maintainable. In support of this submission, they have referred to  National Board of Revenue…Vs…Abu Saeed Khan and others, 18 BLC (AD) 116.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that the Sixteenth Amendment has not been made effective and operative as yet in the absence of a law to be framed pursuant to the amended Article 96(3) of the Constitution and as the Sixteenth Amendment without any corresponding law is ineffective and dysfunctional, the Writ Petition is premature and this is why, the Rule is liable to be discharged on this ground alone.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that the Fifth Amendment of the Constitution was declared void and ultra vires by the final judgment of the Appellate Division in the case of Khondker Delwar Hossain Secretary, BNP and another…Vs…Bangladesh Italian Marble Works and others (Fifth Amendment Case) reported in 62 DLR (AD) 298 and eventually the Parliament thought it appropriate in its wisdom to restore the original provisions of Article 96 of the Constitution by way of amendment under Article 142 of the Constitution and it is well-settled that the wisdom of the Parliament can not be questioned in any manner by any Court and from this standpoint, the Sixteenth Amendment is immune from challenge.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that as per Article 7(1) of the Constitution, all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, the Constitution and as the people are the source of all powers of the Republic, Judges are consequentially accountable to the people through their representatives in the House of the Nation and the Sixteenth Amendment has been made in order to ensure the accountability of the Judges of the Supreme Court to the people and by that reason, the Sixteenth Amendment is a valid piece of legislation.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that it is true that in the Fifth Amendment Case, the Appellate Division affirmed the judgment of the High Court Division subject to some modifications and the Appellate Division condoned the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977), so far as it relates to insertion of Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions relating to the Supreme Judicial Council and also Clause (1) of Article 102 of the Constitution; but in Civil Review Petition Nos. 17-18 of 2011, the Appellate Division modifying its earlier stance condoned the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) in respect of insertion of Clauses (2), (3), (4), (5), (6) and (7) of Article 96 and also Clause (1) of Article 102 of the Constitution provisionally till 31st December, 2012 in order to enable the Parliament to make necessary amendment to the Constitution and to enact the laws anew promulgated during the period of Martial Law of General Ziaur Rahman and because of this provisional condonation, the Parliament passed the Sixteenth Amendment in 2014, that is to say, long after expiry of 31st December, 2012; but in any event, the Sixteenth Amendment is intra vires the Constitution. 

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that there is a presumption of constitutionality in favour of the Sixteenth Amendment and the onus is upon the petitioners to rebut that presumption of constitutionality. In support of this contention, they have drawn our attention to the decision in the case of Sheikh Abdus Sabur…Vs…Returning Officer, District Education Officer in-Charge, Gopalganj and others, 41 DLR (AD)30.

 Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that the Constitution is the supreme law of the land and as per the Constitution, there are 3(three) organs of the State, namely, the Executive, the Legislature and the Judiciary and all the 3(three) organs of the State are to function within the parameters set by the Constitution, though the Supreme Court is the guardian of the Constitution and the original Article 96 of the Constitution was made by the Constituent Assembly in exercise of its constituent power and the Sixteenth Amendment has simply restored the original Article 96 of the Constitution by way of amendment and this being the panorama, the Sixteenth Amendment can not be found fault with.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that supremacy of the Constitution, judicial review, separation of powers, independence of the Judiciary etc. are some of the basic features of the Constitution and the Sixteenth Amendment is not violative of either the principle of separation of powers or the principle of independence of the Judiciary and the Parliamentary procedure of removal of the Judicature is also sanctioned by the Constitutions of the United Kingdom, United States, India, Canada, Australia, Sri Lanka etc. and in particular this Parliamentary procedure of removal of the Judges of the Supreme Court of Bangladesh was there in the original Constitution of 1972 too till the Second Proclamation (Tenth  Amendment)  Order,  1977  (Second  Proclamation  Order  No.  1  of 1977) came into force and ultimately the Parliament enacted the Sixteenth Amendment restoring the original Article 96 of the Constitution verbatim and in such a posture of things, it can not be said at all that the Sixteenth Amendment is repugnant to Article 7B of the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that the provisions relating to the Supreme Judicial Council were inserted in Article 96 of the Constitution by General Ziaur Rahman through the Fifth Amendment importing the same from the Constitution of Pakistan of 1973 and the Supreme Judicial Council being a legacy of the Martial Law regime does not fit in with the democratic set-up of the People’s Republic of Bangladesh and by enacting the Sixteenth Amendment, our Parliament said good bye to this Martial Law legacy for ever.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that by passing the Sixteenth Amendment, Parliament has restored the provisions of the original Article 96 of the Constitution and by that reason, the constitutionality of the Sixteenth Amendment is beyond the scope of the judicial review under Article 102 of the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza further contend that Article 70 of the Constitution is designed to maintain discipline and prevent horse-trading among the Members of Parliament belonging to different political parties and this Article 70 has nothing to do with the independence of the Judiciary as guaranteed by the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza also contend that the privileges and other terms and conditions of service of the incumbent Supreme Court Judges have not been varied to their disadvantage as postulated by Article 147(2) by the Sixteenth Amendment; rather those have been fortified by the restoration of the original Article 96 of the Constitution.

Both Mr. Mahbubey Alam and Mr. Murad Reza next contend that the Sixteenth Amendment has not affected the independence of the Judiciary in any way as guaranteed by Articles 94(4) and 147(2) and by way of elaboration of this contention, they assert that in the UK, USA, India, Sri Lanka, Canada and Australia, Judges are removed from office through the intervention of the Legislature and in those countries, Judges are fully independent in discharge of their judicial functions. They further assert that the two relevant basic structures of the Constitution in this case, namely, separation of powers and independence of the Judiciary are to be considered with reference to the provisions of the original Constitution of 1972 and not otherwise and if the Court appreciates this stand of the contesting respondents, then it can not be conceived that the Sixteenth Amendment is violative of Article 7B of the Constitution.

Dr. Kamal Hossain, learned Amicus Curiae, argues that the independence of the Judiciary is the foundation stone of the Constitution as contemplated by Article 22 and it is one of the fundamental principles of State policy and the significance of the independent Judiciary, free from the interference of the other 2(two) organs of the State, has been emphasized in Articles 94(4), 116A and 147 of the Constitution and in the Eighth Amendment Case, it has been held that Democracy, Republican Government, Unitary State, Separation of Powers, Independence of the Judiciary, Rule of Law, Fundamental Rights etc. are basic structures of the Constitution.

 Dr. Kamal Hossain next argues that the independence of the Judiciary was further strengthened in the historic decision of the Appellate Division in Masdar Hossain’s Case, where the Appellate Division re-affirmed the constitutional mandate of independence of the Judiciary and laid out a roadmap to achieve separation of the lower Judiciary from the Executive organ of the State.

Dr. Kamal Hossain also argues that the consensus appears to be that the constitutional principle of independence of the Judiciary is intended to exclude any kind of partisan exercise of power by the Legislature in relation to the Judiciary, in particular, the power of the Legislature to remove the Judges of the Supreme Court of Bangladesh.

Dr. Kamal Hossain next argues that in the original 1972 Constitution, removal of Judges of the Supreme Court was entrusted to the Parliament on the premise that the Parliament being constituted by the elected representatives of the people, when in exercising its power, would do so conscientiously and independently, free from any party directive and this is how it was perceived when a similar provision was adopted in the Indian Constitution and both in the Indian Constitution and in the original 1972 Constitution of Bangladesh, the power of removal of any Judge would only be exercised after an inquiry conducted by an independent Judicial Inquiry Committee; but H. M. Seervai has expressed his concern in his book “The Position of the Judiciary under the Constitution of India” (published by Bombay University Press) at page 109 that political and party considerations have come into play in impeachment proceedings.

Dr. Kamal Hossain also argues that independence of the Judiciary is a sine qua non of modern democracy and so long as the Judiciary remains truly distinct from the Legislature and the Executive, the general power of the people will never be endangered. In this connection, Dr. Kamal Hossain adverts to The State…Vs…Chief Editor, Manabjamin and others, 57 DLR (HCD) 359.

Dr. Kamal Hossain next argues by referring to Idrisur Rahman (Md) and others…Vs…Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of the People’s Republic of Bangladesh, 61 DLR (HCD) 523 that independence of the Judiciary is an indispensable condition of democracy and if the Judiciary fails, the Constitution fails and the people might opt for some other alternative.

Dr. Kamal Hossain also argues that although the independence of the Judiciary is an essential element of the rule of law, yet by enacting the Sixteenth Amendment, the Parliament is prone to exercise control over the Judiciary by way of preserving a right to take decisions on the question of removal of the Judges of the Supreme Court.

Dr. Kamal Hossain next argues that the security of tenure of the Judges is one of the essential conditions for ensuring effective independence of the Judiciary and this has been emphatically spelt out in  Walter Valente…Vs…Her Majesty The Queen and another, [1985] 2 R. C. S. 673 and S. P. Gupta and others…Vs…President of India and others, 1982 AIR (SC) 149.

Dr. Kamal Hossain further argues that the Judges can not perform their solemn duties unless their independence is guaranteed and protected by securing their tenure as underlined in the United Nation’s Instrument on “Basic Principles on the Independence of the Judiciary” and in a number of authoritative International Instruments, such as the “Beijing Statement of Principles of the Independence of the Judiciary”, the “Universal Charter of the Judge”, and the “Commonwealth Latimer House Principles on the Three Branches of Government” and the formal requirements of independence of the Judges include, amongst others, their security of tenure and suitable conditions of service.

Dr. Kamal Hossain also argues that Article 96 of the original 1972 Constitution relating to the removal of Judges was materially affected by the Fourth Amendment of the Constitution in 1975 which deleted Clause (3) of Article 96 and thereafter by the Fifth Amendment of the Constitution, the provisions for removal of Judges by the Supreme Judicial Council were introduced and ultimately the Fifth Amendment was held to be unconstitutional by the Appellate Division in the Fifth Amendment Case, albeit the Appellate Division condoned the provisions relating to the Supreme Judicial Council in Article 96 of the Constitution; but the impugned Sixteenth Amendment purports to violate the judgment of the Appellate Division passed in that case.

Dr. Kamal Hossain next argues that the Parliament, in disregard of the decision of the Appellate Division rendered in the Fifth Amendment Case, has abolished the Supreme Judicial Council, which clearly compromises and weakens the independence of the Judiciary through the Sixteenth Amendment and this Sixteenth Amendment is violative of Articles 94(4) and 22 of the Constitution by way of subjecting the tenure of the Judges of the Supreme Court to the whims and caprices of the Members of Parliament.

Dr. Kamal Hossain also argues that the consequence of the Sixteenth Amendment is that it has rendered the tenure of the Judges of the Apex Court insecure and as such the Sixteenth Amendment has created an opportunity to undermine the independence of the Judiciary by making the same vulnerable to outside influences and pressures jeopardizing the rule of law in the country.