16th amendment: New question arises while hearing review petition
Gulam Rabbani :
A question has been raised whether a six-member bench of the Appellate Division of the Supreme court can hold hearing on 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.
Manzill Murshid, a lawyer of the writ petitioners who challenged the amendment, raised the question on Thursday when the matter came up for hearing in the apex court.
The lawyer said a seven-member bench of the Appellate Division gave the judgment that upheld the HC verdict.
However, now the Appellate Division has only 6 judges. According to the long-standing custom, the review of a judgment is heard by a bench of equal number of judges or more.
The Appellate Division bench headed by Chief Justice Obaidul Hassan then instantly took opinions from some senior lawyers who were present in the courtroom.
Some of the lawyers including Attorney General AM Amin Uddin opined that there is no bar for the Appellate Division to hold hearing on the review with its six-member bench, as it has only six judges now.
However, senior lawyer Qumrul Haque Siddique said, it is better to hear the review in a bench of equal number of judges or more. New questions may arise if this review is heard in a six-member bench. After receiving the opinion, the apex court adjourned the hearing for one week.
The Appellate Division of the SC was scheduled to hear the six-year-old review petition on Thursday, November 16 in 2023.
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.
