Staff Reporter :
The government on Sunday filed a petition with the Supreme Court seeking review of its judgement that scrapped the 16th amendment to the Constitution, which had empowered the Parliament to remove judges of the higher judiciary for incapacity and misbehaviour.
The Attorney General’s office submitted the 908-page review petition containing 94 grounds on which the apex court may consider the prayer.
In a briefing, Attorney General Mahbubey Alam said, “We sought scrapping of irrelevant observations of the verdict.”
“The amendment had been scrapped before the related law is formed, which seems as an immaturity. We sought cancellation of the verdict in the review petition,” the Attorney General said.
“Hope, the Appellate Division will review the verdict considering 94-point grounds and the 16th amendment would be reinstated.” In the grounds of the review petition, the government said, “Thus it is clear that only Bangabandhu Sheikh Mujibur Rahman has been recognized as Founding Father of the Nation and this Court committed an error apparent on the face of the record observing a plural word namely ‘Founding Fathers’ of the country and thus the instant judgement is required to be reviewed.”
“This Division committed an error apparent on the face of the record in holding/observing — We must rid of this obnoxious ‘our men’ doctrine and suicidal ‘I alone’ attitude.” The aforesaid finding is baseless, unwarranted and aspersion to our political leaders and is being beyond the issue of this case, those are liable to be reviewed, the petition also read.
“The observations of this court to the effect that our Parliamentary democracy is immature and it would be a suicidal attempt to give the Parliament the power of removal of judges of the higher judiciary. This is not only derogatory rather it being a political question, this court exceeded its jurisdiction in making such remark/observation and being one of the organ of the State, the Judiciary cannot make such comment against another organ of the State and this court committed an error apparent on the face of the record in arriving at such finding/observation and thus, the instant judgement is required to be reviewed/expunged.”
“This court having not treated any law made under Martial Law Proclamation as valid, took a contrary view in respect of Supreme Judicial Council provision, thereby has committed an error apparent on the face of the record in taking such contradiction view and as such the instant judgement requires to be reviewed.”
The 16th amendment made on September 17 in 2014, had abolished the Chief Justice led Supreme Judicial Council (SJC) and restored parliament’s power to remove the judges. But it was challenged with the HC on November 5 in 2014, through a writ petition filed by nine SC lawyers.
The High Court issued rule on the amendment on November 9 in 2014. After hearing HC declared the amendment illegal on the basis of the view of the majority on May 5 in 2016. Later, the government appealed against the HC verdict.
The Appellate Division started hearing on the case on May 8 in 2017, in the full Bench lead by the former Chief Justice Surendra Kumar Sinha. The Bench heard speeches from 10 senior Supreme Court lawyers on the case. Nine of them gave their opinion to scrap the 16th amendment.
Finally the Appellate Division delivered the verdict on July 3 in 2017 rejecting the appeal and upholding the HC verdict and released the full text of the verdict on August 1 in 2017.
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 Supreme Judicial Council (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.
The provision of SJC for the removal of SC judges for misconduct or incapacity had been reinstated in the Constitution, the apex court said in its full judgement on the 16th constitutional amendment.
But some observations of the judgement grew anger among the ruling party and the governmnet. A number of Awami League (AL) leaders and pro-AL lawyers demanded the Chief Justice’s resignation, accusing him of undermining Parliament and Bangabandhu Sheikh Mujibur Rahman in the 16th amendment case judgement.
On September 13, the Jatiya Sangsad passed a resolution calling for legal steps to nullify the SC judgement. The Law Minister said on several occasions that the government would seek a review of the judgment.
In the meantime Chief Justice Surendra Kumar Sinha went on a long leave on health grounds. But perception remains that he was forced to go on leave due the government’s anger with observations in the judgement. Finally the Chief Justice resigned from his post on November 10 in 2017 amid widespread criticism.
