90pc people have faith in judiciary

Chief Justice Surendra Kumar Sinha yesterday said more than 90 percent people have faith in the judiciary as the judges work in a much disciplined way.

“I cannot say what happened in the past. I can say that more than 90 percent people have good faith in the judiciary now. I can firmly say that the judiciary is 100 times fairer than any other institution in Bangladesh,” he said.

Justice Sinha was responding to a comment by Attorney General Mahbubey Alam that a mass hearing should be held on “what was going on [with the justice seekers] in this court”.

The CJ was presiding over a seven-member bench of the Appellate Division of the Supreme Court for hearing the appeal filed against the High Court verdict that scrapped the 16th amendment of the constitution.

Yesterday was the sixth day of the hearing of the appeal. The apex court will resume the hearing at 11:30am today.

The 16th amendment empowered parliament to remove the SC judges for incapacity or misbehaviour.

Following a writ petition filed by nine SC lawyers, the High Court on May 5 last year declared the amendment illegal. The government on January 4 this year filed the appeal with the SC challenging the HC verdict.

The chief law officer of the state yesterday prayed to the SC to uphold the 16th amendment. He said the retention of the Supreme Judicial Council, which was a product of martial law, was a shame for the country's constitutional history.

The government brought the 16th amendment to the constitution in order to go back to the original constitution (of 1972), Alam added.

Writ petitioners' counsel advocate Manzill Murshid told the apex court that Bangabandhu Sheikh Mujibur Rahman “had taken away parliament's power of removing SC judges through the fourth amendment of the constitution”.   

HEARING CONTINUES

The attorney general said although the system of the Supreme Judicial Council was illegal, a vacuum might have been created had it been scrapped earlier. 

Without naming former law minister Shafique Ahmed, he said a former minister included the provision of the Supreme Judicial Council in the 15th amendment to the constitution in order to give privileges to the SC judges.

“There may be a number of reasons for maintaining Article 96 [of the constitution] containing the Supreme Judicial Council such as firstly, the Appellate Division in its original judgment condoned it, secondly, there is urgency due to the void created by the order dated March 29, 2011, thirdly may be concerned technocrat minister at the time who is a senior advocate wanted to give a good turn to the learned judges of the Supreme Court, most of whom if not all of them, would not like the idea of facing the House of the Nation, if such a situation arises in future, even if at all,” Alam said.

The CJ told the attorney general that Barrister Shafique is a gentleman and the judiciary and the executive had a very good relationship during his tenure as the law minister. The war crimes trial began when he was the law minister and there was no scope for discrediting him.

Justice Sinha also asked the attorney general not to undermine the apex court.

The attorney general said the issue of holding war crimes trial was in the “general election [2008] manifesto of the prime minister [Sheikh Hasina]”.     

The CJ said he wanted to appoint some efficient and qualified judges to this court [HC], but the appointments were not made in one and a half years.  

The attorney general said, “The opinion of the learned [SC] judges is that the Supreme Judicial Council is the better opinion. But no reasons were given.”  

The chief justice told the attorney general that they [judges] would interpret the entire constitution when the questions of people's rights, independence of the judiciary and the basic structure of the charter would come before them.

Advocate Manzill said Bangabandhu had decided to bring the fourth amendment to the constitution.

Following the decision of the Father of the Nation, the provision of the Supreme Judicial Council was included in the constitution, he added.

The lawyer said it was not true that the constitution of 1972 could not be amended. “Only the fundamental structure of the constitution cannot be changed.”

The issue of the removal of the SC judges was directly linked to the independence of judiciary. So, the power of removing the SC judges couldn't be given to parliament in order to keep the basic structure of the constitution intact, Manzill told the apex court.

He said the Appellate Division of the SC gave legitimacy to the Supreme Judicial Council in its judgment in the case related to the constitution's fifth-amendment and the apex court upheld the judgment in its review verdict.

He observed that people's opinions were not being reflected due to Article 70 of the constitution which prevents a lawmaker from voting against his/her party in parliament.

The SC may scrap any law if it is formulated with malafide intensions, the lawyer said.