Spirit of 16th amendment case was to undermine judicial independence: SC

The Appellate Division of the Supreme Court has strongly stated that the essence of the 16th Amendment case was to compromise the independence of the judiciary, branding it as an attempt by a “despotic and fascist government” to control judicial accountability for political gain.

The full text of the October 20, 2024 judgment, released on Wednesday, reaffirmed the Supreme Judicial Council’s authority to remove judges for incapacity or misconduct, striking down the 16th Amendment as unconstitutional.

“What was the essence of the Sixteenth Amendment case? 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,” Observation from the Appellate Division verdict.

Justice Zubayer Rahman Chowdhury, in his remarks within the 50-page ruling, underscored the dangerous implications of the amendment:

“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 Parliament. Can such a situation be allowed or accepted in a democratic society? The answer… is an emphatic ‘No.’”

The court disposed of the state’s review petition, which had challenged the earlier decision that declared the amendment illegal. Though filed on 94 grounds, the Attorney General informed the court that none were found to be meritorious enough to present.

“We examined all 94 grounds and concluded there is not a single ground good enough to review the case,” said Attorney General Md Asaduzzaman.

He hailed the ruling as a “historic milestone” for judicial independence and stressed that the Supreme Judicial Council now bears the responsibility to operate with integrity and courage.

The apex court also issued a warning about judges engaging in political commentary. It stated that judges must avoid political controversy to protect the image and neutrality of the judiciary.

“A judge should remain abstinent in expressing political views which may have an anarchic impact on the image of the judiciary and thereby affect its independence,” from the full judgment text.

The 16th Amendment, passed in 2014, had empowered Parliament to remove Supreme Court judges for incapacity or misconduct—authority that previously belonged to the Supreme Judicial Council.

A three-member High Court bench, led by Justice Moyeenul Islam Chowdhury, declared the amendment illegal on May 5, 2016. This decision was later upheld by a seven-member Appellate Division bench on July 3, 2017.

The state filed a review petition, which was finally disposed of in October 2024 by a bench headed by Chief Justice Syed Refaat Ahmed.

Senior advocate Manjil Mushid moved the writ petition before the court, while Barrister Ruhul Quddus Kazal also took part in the hearing. Attorney General Md Asaduzzaman stood for the state.
This ruling reaffirms the constitutional safeguard of judicial independence, and the Supreme Court’s message is clear: no government, however powerful, can exert political pressure over the judiciary without consequence.