SC Verdict on 16th Amendment: Government seeks review

The government yesterday filed a petition with the Supreme Court seeking review of its verdict scrapping the 16th amendment to the constitution that had empowered parliament to remove SC judges for incapacity or misconduct.

The attorney general's office submitted the 908-page review petition outlining 94 grounds on which the apex court may consider the government's prayer for restoring the 16th amendment, cancelling the provision of the Supreme Judicial Council (SJC) and striking out some of its observations.

Comprising the chief justice and two other senior judges of the Appellate Division of the apex court, the SJC investigates allegations of misconducts by any judge and makes necessary recommendations to the president for the next course of action.

In the review petition, the government has 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, according to sources at the attorney general's office.

It said only Bangabandhu Sheikh Mujibur Rahman has been recognised as Founding Father of the Nation and the apex court committed an error (apparent on the face of record) observing a plural word namely “Founding Fathers” of the country.

The error is liable to be reviewed/ expunged, read the petition.

The article 96, which was scrapped by the 16th amendment, deals with the procedure for formation and functions of the SJC and formulation of the code of conduct.

After filing of the review petition, Attorney General Mahbubey Alam told reporters that the SC would now fix a date for holding hearing on the petition.

He said the government in its petition sought cancellation of the code of conduct formulated by the SC for its judges.

The SC cannot formulate its judges' code of conduct through a verdict. Those who will probe allegations of misconduct or incapacity against the judges formulate the code of conduct, he added.

Approved by parliament in September 2014, the 16th amendment had abolished the SJC and restored the House's power to remove the judges. The amendment was challenged with the High Court through filing a writ petition.

The HC in May last year declared the 16th amendment unconstitutional and void as it found the changes went against the principles of the separation of powers and the independence of the judiciary.

The government later filed an appeal against the HC verdict. On July 3 this year, the Appellate Division of the SC rejected the appeal and upheld the HC verdict.

In the full verdict released on August 1, the apex court said the provision of the SJC has been reinstated in the constitution.

The independence of judiciary has been undermined and curtailed by making the judiciary “vulnerable to a process of removal of the judges by parliament”, it said.

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

The scrapping of the 16th constitutional amendment has been widely talked about among politicians from the ruling party as the SC in its full verdict made some observations critical of the country's present political culture.

The government in the review petition said, “Because, in the Supreme Judicial Council, a forum of enquiry and recommendation, having incorporated in the Supreme Judicial Council provision and in view of 16th amendment under article 96(3) necessary laws to be enacted providing a forum of inquiry, method of inquiry and recommendation, regarding allegation of misbehavior or incapacity of a judge and no enactment having been made as yet under article 96(3), this division [Appellate Division] committed an error apparent on the face of record, in not holding that the instant writ petition is premature and thus, the instant judgement requires to be reviewed.”

The petition said the SC, having not treated any law made under martial law proclamation as valid, took a contrary view in respect of SJC provision and thereby has committed an error (apparent on the face of record) in taking such contrary view and as such the instant judgement requires to be reviewed.

The object for incorporating article 70 in the constitution by the constituent assembly is to ensure the stability and continuity of the government and also to ensure discipline among the members of political parties, so that corruption and instability can be removed from national politics, it said.

The prayer said the apex court committed an error (apparent on the face of record) in holding “If the members of parliament are suspected to indulge in horse trading, if no such provision is contained in the constitution, how they may be reposed with the responsibility of the onerous task of removal of justice of the higher judiciary”.

And the aforesaid remarks and findings being unwarranted is liable to be reviewed/ expunged, read the petition.   

The SC finding that “We must get rid of this obnoxious 'our men' doctrine and suicidal 'I alone' attitude” is baseless, unwarranted and aspersion to our political leaders and is being beyond the issue of the case and those were liable to be reviews/ expunged, the petition stated.

It said the SC committed an error (apparent on the face of record) in arriving at the findings/observations that “Our election process and the parliament remain in infancy” and “people cannot repose trust upon these two institutions”.

The remarks are not correct and beyond the issue of the instant case and such remarks by the judiciary against legislature being unwarranted, uncalled for and contrary to the judicial norms and therefore the instant judgment requires to be reviewed/ expunged, the petition said.