Do we have the provision of Supreme Judicial Council in the existing Constitution?
About four years have passed since the Appellate Division of the Supreme Court decided in favour of restoring the Supreme Judicial Council (SJC) as laid out in Article 96 of the Constitution through the verdict of the 16th Amendment case. However, the government is yet to comply with the verdict by restoring the provision of the SJC in the Constitution, as it has filed a petition with the apex court on 24 December 2017 seeking a review of the verdict. The review petition is yet to be settled as its hearing and disposal has been pending with the Appellate Division. Therefore, the provision of the SJC is absent from the Constitution now.
The issue has once again come to light after 42 distinguished citizens have collectively submitted a letter to the President urging him to constitute a SJC to investigate the allegations of "serious financial corruption and gross election-related misconduct" against the Election Commission (EC). In a letter to President Md Abdul Hamid on 14 December 2020, they noted the SJC should be formed under Article 96 of the Constitution. The eminent citizens wrote to the President for the second time on 17 January 2021 reiterating the demand for constituting SJC to probe allegations against the EC.
Earlier Dr Shahdeen Malik, one of the 42 citizens, told The Daily Star that the SJC is in operation following the apex court's verdict on the 16th amendment case although the provision of SJC has not been restored in the Constitution by the government. "No stay order is passed by the [apex court] following any review petition of the state", he added. On 16 November 2021, Law Minister Advocate Anisul Huq told the Parliament that hearing of the review petition against the verdict on 16th amendment of the Constitution will start very soon. He said this while speaking on the issue of a proposal to send the Leader and Deputy Leader of the Opposition (Remuneration and Privileges) Bill, 2021 over to the scrutiny committee.
He said the case is now pending with the Appellate Division as the government sought the review on the ground of "error apparent on the face of the record". "There is enough merit for reviewing this case," he said. The Minister said the government has already requested the Appellate Division to review the case. "Appellate Division informed us they will hear the case very soon," he said. Earlier, Fisheries and Livestock Minister Advocate SM Rezaul Karim told The Daily Star that there is no provision of SJC in the existing Constitution of the Republic. Therefore, the President can do nothing by going beyond the Constitution, he observed.
Attorney General AM Amin Uddin told The Daily Star that he cannot say whether the SJC is in operation as the review petition against the Appellate Division verdict on this issue is still pending.
In the letter submitted to the Hon'ble President on 14 December last year, the citizens mentioned that members of the EC, under Chief Election Commissioner KM Nurul Huda's leadership, have committed misconduct and irregularities, including spending Tk 2 crore for delivering speeches as "special speakers" and Tk 8.08 crore in recruiting staffers for the Commission. Three Commissioners have also allegedly been using cars in violation of relevant rules. The letter also noted that the EC has committed gross misconduct and irregularities in buying and using the electronic voting machines, and in holding the 11th parliamentary election, and also elections for Dhaka North and South city corporations, and Khulna, Gazipur, Sylhet, Barishal and Rajshahi city corporations.
In September 2014, the parliament passed the 16th amendment to the Constitution, re-empowering itself to remove Supreme Court judges and other constitutional post holders for incapacity or misconduct. A few days later, Supreme Court lawyer Manzill Murshid moved a writ petition before the High Court, seeking repeal of the amendment. After hearing both sides, the High Court Division declared the 16th constitutional amendment null and void in May 2016.
The government then challenged the High Court Division's verdict, but the Appellate Division rejected the appeal on 3 July 2017 and thus upheld scrapping of the amendment. In the verdict, the apex court restored the SJC. On 24 December 2017, the government filed the review petition against the said verdict. Since then, the petition has been pending with the apex court.
The writer is senior staff correspondent, The Daily Star.