16th Amendment Hearing: Chief justice, AG trade heated words

Chief Justice Surendra Kumar Sinha and Attorney General Mahbubey Alam had a heated exchange yesterday during a hearing on the appeal against the High Court verdict that scrapped the 16th amendment of the constitution.

At one stage, the attorney general said he had no confidence in the chief justice in relation to the case.

"I will be compelled to place a no-confidence petition and will withdraw myself from the case if all the seven judges of the Appellate Division are not involved in hearing the appeal because it is related to the constitution."

The 16th amendment had empowered parliament to remove judges for incapacity or misbehaviour. Following a writ petition filed by nine Supreme Court lawyers, the HC on May 5 last year declared the amendment illegal.

The government filed the appeal against the verdict on January 4 this year.

The attorney general made the comments yesterday since a five-member bench of the Appellate Division headed by the chief justice refused to adjourn the hearing of the appeal for two weeks as the top law officer requested.      

The five judges included Justice Md Abdul Wahhab Miah, Justice Muhammad Imman Ali, Justice Hasan Foez Siddique and Justice Mirza Hussain Haider.

Justice Nazmun Ara Sultana is abroad and Justice Syed Mahmud Hossain is sick, according to the SC sources. The attorney general was requesting the court to adjourn the proceedings for two weeks so that the two judges can be involved in the  hearing.

During the ensuing exchange, Chief Justice Sinha said the attorney general was taking the court towards such a situation where he [the AG] would be in danger. Mahbubey Alam asked if the chief justice was threatening him.

However, the apex court adjourned the hearing till 11:30am on May 21.

Earlier in the day, the attorney general submitted two separate applications to the SC.

In one application, he prayed to the apex court to adjourn the hearing for two weeks and constitute the bench by including Justice Nazmun Ara Sultana and Justice Syed Mahmud Hossain.

In another application, he requested the SC to seek details about the HC observation that some parliament members had criminal records.

At the beginning of the hearing yesterday, the chief justice told the attorney general that it should be determined whether parliament or the Supreme Judicial Council will have the authority to remove an SC           judge.

This case needs to be settled soon as there should not be a vacuum regarding the discipline of the judges following the scrapping of the 16th amendment, he said, adding that unfortunately the two judges might not be included in the bench.

Mahbubey Alam said, "It is my prayer that all the seven judges [of the Appellate Division] will hold the hearing on the appeal. What is wrong with the prayer? Yesterday, you said that all the seven judges will hear the case. If all the judges are not involved, I will be compelled to move a no-confidence petition."

He further said the chief justice will be in office till January next year.

As Justice Sinha said, "You are undermining the court and                trying to cause delay in settling the case."

"I am not undermining the court," replied the attorney general. "Go through our applications. The High Court has made many observations about the members of parliament. Has any court in the world made such observations about the members of parliament?"     

Justice Sinha said they [judges] would look into the matter while hearing the arguments on the appeal. Justice Md Abdul Wahhab Miah, too, mentioned that they were yet to hear the matter.

The chief justice told the attorney general, "You will place arguments on the appeal later. But what is the problem with placing the High Court verdict now?"

Mahbubey Alam said, "You yesterday assured that seven judges will hear the appeal. Today five judges are hearing it. I have become helpless. We will not get justice. Don't compel me to submit a no-confidence petition."

Justice Sinha said, "You are taking the court to such a situation where you will be in danger."

The attorney general said, "Are you threatening me? You yesterday said that seven judges will hear the appeal. You have changed that today. I will withdraw myself from this case."

The chief justice said, "You earlier had placed arguments before the High Court in this case. You know very well about this case. You now place the [High Court] judgment. Why are you insisting?"        

The attorney general said, "We will place the judgment. But time has to be given. The sky will not fall down if two weeks' time is given to me. I hope that the two judges will return by this time."

Justice Md Abdul Wahhab Miah said, "As the highest officer of the court, you [attorney general] should not have said that you will withdraw yourself from the case. You may move a prayer but you cannot insist."

Chief Justice SK Sinha said the Supreme Court is the guardian of the constitution and the chief justice has to make decisions considering situations.

"Not necessarily all the judges have to hear the appeal. A judge may fall sick or may go abroad. So there cannot be any precondition for constituting a bench for hearing any case," he said.

"We asked you to submit written arguments on the appeal. There are 155 law officers at the attorney general's office. How much time is needed to prepare written arguments?"     

The attorney general replied he had to say all those out of helplessness.

"I am humbly praying so that all the seven judges hear the appeal," he further said.

The apex court held the hearing, with Additional Attorney General Murad Reza reading out from the HC verdict, till 12:15pm yesterday.

Yesterday, four amici curiae (friends of court) -- Dr Kamal Hossain, Barrister M Amir-Ul Islam, Barrister MI Farooqui and Advocate Abdul Wadud Bhuiyan -- submitted their written arguments on the appeal to the SC, which started the hearing proceedings on Monday.

On February 8, the apex court requested 12 senior jurists, to place their expert opinions as amici curiae before it.