Review not heard in one and a half years

One and a half years have passed since the government sought review of the Supreme Court verdict upholding cancellation of the 16th constitutional amendment that restored parliament’s power to remove judges for incapacity or misconduct, but it is still uncertain when the apex court will hear the petition.

Neither the government nor the petitioner, who sought scrapping of the amendment, has taken any initiative to hold the hearing at the Appellate Division of the SC.

Talking to The Daily Star on May 6, Attorney General Mahbubey Alam said his office has not taken any step in this regard because it is busy dealing with urgent cases.   

The SC has not fixed a date either, he said.

Asked whether his office would take any step soon, he said, “Let’s see.”

In September 2014, parliament passed the 16th amendment to the constitution, re-empowering itself to remove SC judges for incapacity or misconduct.

A few days later, SC lawyer Manzill Murshid filed a writ petition with the High Court, seeking repeal of the amendment. After hearing both sides, the High Court declared the 16th constitutional amendment null and void in May 2016.

The government then challenged the HC verdict, but the Supreme Court rejected the appeal on July 3, 2017 and thus upheld scrapping of the amendment.

On December 24, 2017, the government filed a review petition against the SC verdict. Since then, the petition has been pending with the court.

Talking to The Daily Star on May 10, advocate Manzill Murshid said he does not want the review petition to be heard because the SJC is still effective following the SC verdict.

The SJC is a body consisting of the chief justice and two senior judges of the Appellate Division. It investigates allegations of misconduct or incapacity against any judge and makes necessary recommendations to the president.

Advocate Manzill said SJC can play its role now because the SC verdict was not stayed.

SC OBSERVATIONS,

REVIEW PETITION

In December 2017, the attorney general’s office submitted the 908-page review petition outlining 94 grounds the apex court can consider to restore the 16th amendment, abolish the SJC, and scrap some of its observations.

The petition sought cancellation of the 39-point code of conduct formulated by the apex court for its judges under Article 96 of the country’s charter.

The petition says that only Bangabandhu Sheikh Mujibur Rahman was recognised as the “Founding Father of the Nation”, but the court committed an error in its observations by using “Founding Fathers”. The error is liable to be reviewed or expunged, it adds.

Article 96 deals with formation and functions of SJC. The article was scrapped when the 16th amendment was introduced.

In the full text of the verdict that upheld the scrapping of the amendment, the Supreme Court said the provision of SJC was reinstated in the constitution.

It also said the independence of the judiciary was undermined and curtailed by making the judiciary “vulnerable to a process of removal of the judges by parliament”.

The procedure entailed in the SJC is more in consonance with the spirit of the constitutional scheme, the SC observed in the full verdict. The provision of SJC was not only for the interest of justice, but also for the independence of the judiciary, the court said.

The scrapping of the 16th constitutional amendment was widely discussed among ruling party politicians as the SC, in its full verdict, made observations critical of the then prevailing political culture.