In 2017 the Appellate Division unanimously struck down the Sixteenth Amendment, which had given Parliament the power to remove Supreme Court judges, and restored the Supreme Judicial Council. The judgment was upheld on review in October 2024.
The Sixteenth Amendment Case (2017): Who Should Remove a Supreme Court Judge?
30th Sep 2026, author: admin
| CASE AT A GLANCE | |
|---|---|
| Citation | Government of Bangladesh v Advocate Asaduzzaman Siddiqui (2019) 71 DLR (AD) 52 |
| Court | High Court Division (Special Bench); Appellate Division (seven judges) |
| Bench | SK Sinha CJ (author), Abdul Wahhab Miah, Nazmun Ara Sultana, Syed Mahmud Hossain, Muhammad Imman Ali, Hasan Foez Siddique and Mirza Hussain Haider JJ |
| Date | HCD: 5 May 2016 (2:1). AD: 3 July 2017 (7:0); full judgment 1 August 2017. Review disposed of: 20 October 2024 |
| Outcome | Sixteenth Amendment void; Supreme Judicial Council restored |
ARTICLE TEXT
Security of tenure is at the heart of judicial independence. A judge who can be removed by those whose decisions she reviews may hesitate to rule against them. The Sixteenth Amendment case asked who, under the Constitution of Bangladesh, should hold the power to remove a judge of the Supreme Court: Parliament, or a council of senior judges. The Appellate Division’s answer, and the political storm that followed, make it one of the most consequential cases of the century.
The Background
The original 1972 Constitution gave Parliament the power to remove Supreme Court judges for proven misbehaviour or incapacity, by a two-thirds majority. The Fourth Amendment in 1975 gave that power to the President, and later martial law changes created the Supreme Judicial Council, a body made up of the Chief Justice and the two next senior judges of the Appellate Division, which would inquire into complaints and make recommendations.
In September 2014, Parliament passed the Constitution (Sixteenth Amendment) Act, restoring the 1972 version of Article 96 and returning the removal power to Parliament. Nine Supreme Court advocates, led by Asaduzzaman Siddiqui, filed Writ Petition No. 9989 of 2014.
The High Court Division Judgment (2016)
On 5 May 2016, a Special Bench declared the amendment unconstitutional by two to one. Moyeenul Islam Chowdhury J and Quazi Reza-Ul Hoque J formed the majority, describing the amendment as colourable legislation that violated the separation of powers. Md Ashraful Kamal J dissented. The government appealed.
The Appellate Division Judgment (2017)
The appeal was heard by all seven judges of the Appellate Division, assisted by twelve amici curiae, senior lawyers invited to advise the court. Most of those who gave opinions argued against the amendment. On 3 July 2017, the court dismissed the appeal unanimously. The full judgment, written by Chief Justice Surendra Kumar Sinha, was released on 1 August 2017.
The court held that the independence of the judiciary, including security of tenure, is part of the basic structure. The key reason lay in Article 70, the anti-defection provision, under which a Member of Parliament who votes against the party loses the seat. Because MPs cannot vote freely against their party, a removal vote in Parliament would in practice be a decision of the ruling party’s leadership. That, the court held, would expose judges to political pressure and undermine their independence. The court restored the Supreme Judicial Council and set out a code of conduct for judges.
The full judgment also contained wide-ranging observations about politics, Parliament and the state of democracy. Those remarks provoked fierce criticism from the government and ruling party. Chief Justice Sinha went on leave in October 2017 and resigned from abroad in November 2017. The government filed a review petition in December 2017.
The Review (2024) and After
The review petition remained pending for almost seven years. On 20 October 2024, a six-judge bench headed by Chief Justice Syed Refaat Ahmed disposed of it with observations, upholding the 2017 judgment and expressly confirming the restoration of Article 96(2) to (8). The Supreme Judicial Council was once again the body responsible for inquiring into complaints against judges. Since then, several High Court judges have been removed on its recommendation.
Why It Matters
The Sixteenth Amendment case is a key authority on judicial independence and on how the basic structure doctrine interacts with the real working of Parliament. Its most original contribution is the argument from Article 70: a constitutional safeguard that looks democratic on paper, removal by elected representatives, may not be so in practice when party discipline is absolute.
The case also shows the risks courts face when they move from legal reasoning into political commentary. The remarks that surrounded the judgment arguably distracted from its reasoning and left the Chief Justice personally exposed. For students, it offers a rich study of separation of powers, comparative models of judicial removal, and the delicate relationship between courts and Parliament.
Sources
- Sixteenth Amendment judgment (Shishir Manir judgment review): https://static.shishirmanir.com/uploads/store/judgmentreview/36a94815-b14b-4f63-9046-01b4a7abd317/document/3d56513f61b9c71738731011e56fb3a4.pdf
- The Daily Star, HC scraps 16th amendment: https://www.thedailystar.net/frontpage/hc-scraps-16th-amendment-1219480
- Daily Asian Age, SC releases full text of verdict on 16th amendment: https://dailyasianage.com/news/77346/sc-releases-full-text-of-verdict-on-16th-amendment
- The Business Standard, Supreme Judicial Council reinstated for removal of Supreme Court judges: https://www.tbsnews.net/bangladesh/supreme-judicial-council-reinstated-removal-supreme-court-judges-970941
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