Staff Reporter :
The Appellate Division of the Supreme Court has fixed October 20 this year for hearing the review petition filed challenging its earlier verdict that upheld the cancellation of the 16th Constitutional amendment brought to restore parliament’s power to remove judges for incapacity or misconduct.
Justice M Enayetur Rahim, judge of the Chamber Court of the Appellate Division, has fixed the date recently. The case will be heard in the regular bench of the apex court.
The government on December 24 in 2017 filed the petition with the Appellate Division of the Supreme Court seeking review of its judgement that upheld the High Court verdict scrapping the 16th amendment to the Constitution.
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, the then Attorney General Mahbubey Alam said, “We sought scrapping of irrelevant observations of the verdict.”
Since the review petition has not been finalized yet, a vacuum is prevailing in the procedure of removing Supreme Court judges and election commissioners for their misconduct. Allegations raised against some of the High Court judges are also pending for years. However, legal experts say, the Supreme Judicial Council is still in place.
Lawyer Manzill Murshid who appeared in this case for the writ petitioners said, “Since the Appellate Division upheld the judgment and as the apex court didn’t pass any stay order on the judgment, there is no doubt that the Supreme Judicial Council is still in place.”
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 a rule on the amendment on November 9 in 2014. After hearing, the 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 to the Constitution.
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 the parliament”.
The procedure entailed in the 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 Supreme Judicial Council 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 dissatisfied the ruling party and the government. 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, 2017, 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.
