The Supreme Judicial Council now a part of our Constitution is the safety valve against the executive onslaughts and it shall save the Judges of the Supreme Court from the onslaughts of the executive and this safety valve cannot be allowed to be fused by any logic and under any circumstances, but that is what has actually been done by Sixteenth Amendment, so the High Court Division very rightly struck down the same. At the same time, I strongly feel that steps need be taken to make the Supreme Judicial Council more effective.
Before martial law dispensation, original article 96 was no more in the Constitution and, in fact, in Fifteenth Amendment, article 96 with the Supreme Judicial Council was retained and thus it became a part of the Constitution and thereby article 96 with the Supreme Judicial Council no more bore the stigma of the Martial Law Proclamation. In the written argument, the learned Attorney General took a plea that since by Fourth Amendment, presidential form of Government was introduced in place of parliamentary form of Government, so the power to impeach the Judges of the Supreme Court was taken away from Parliament and it was vested in the President. The argument of the learned Attorney General is absolutely based on total non-consideration of the provisions of the various articles of the Constitution in Chapter I, Part V of the Constitution which have been quoted hereinbefore. I have checked up the articles in that chapter of Part V. I found no change in the provisions as to the composition and power of Parliament. It remained the same when Fourth Amendment was passed and even today it is the same as it stood on 04.11.1972. The only change made from time to time was in sub-article (3) of article 65 as to the number of nominated women members. Parliament is Parliament and its members are elected representatives of the people whatever may be form of the Government, parliamentary or presidential. I failed to understand how the learned Attorney General could make the distinction between the members of Parliament under the presidential form of Government and members of Parliament under parliamentary form of Government. The only distinction between the two forms of Government is that in the presidential form of Government, the President is the chief executive and in the parliamentary form of Government, the Prime Minister is the chief executive. The powers and functions of Parliament under both the forms of Government are the same and similar. In the context, it is very very pertinent to state that though the provisions of the impeachment of a Judge of the Supreme Court by Parliament was in the Constitution from Fourth November, 1972 upto 25th January, 1975, i.e. upto Fourth Amendment, no law was enacted pursuant to sub-article (3) of original article 96 and therefore, article 96 as it stood then never became effective and it just remained in the Constitution. (Md. Abdul Wahhab Miah, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment