Review not heard in over 3yrs | The Daily Star
12:00 AM, April 13, 2021 / LAST MODIFIED: 01:35 AM, April 13, 2021

SC verdict scrapping 16th amendment

Review not heard in over 3yrs

State to take initiative for hearing on petition, says attorney general

Attorney General AM Amin Uddin yesterday said the state will take necessary initiative for the Supreme Court's hearing on the 2017 review petition challenging its verdict which upheld the cancellation of the 16th constitutional amendment that restored parliament's power to remove judges for incapacity or misconduct.

"We will move an application before the Appellate Division of the Supreme Court when it starts regular functions after the end of ongoing Covid-19 pandemic for holding early hearing on the review petition regarding the 16th amendment of the constitution," he told reporters at his office on the SC premises.

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The attorney general, however, did not elaborate on it any further.

More than three years and three months have passed since the state sought review of the apex court verdict that upheld cancellation of the 16th constitutional amendment.

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

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 HC declared the 16th constitutional amendment null and void in May 2016.

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

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

Talking to The Daily Star earlier, advocate Murshid said he does not want the review petition to be heard because the SJC (Supreme Judicial Council) 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.

He 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.   

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