16th amendment verdict

Govt files review petition

In its review petition, the government has said the Supreme Court (SC), in its verdict on the 16th amendment case, had committed an error apparent on the face of the record in justifying the 16th amendment to the Constitution by Martial Law Proclamation. Attorney general Mahbubey Alam told reporters that they have filed the review petition with the related branch of the SC, seeking the cancellation of the full verdict of the Appellate Division that upheld a High Court (HC) judgment scrapping the 16th amendment to the Constitution.

“We've submitted the 908-page review petition that contains 94 grounds on which the SC can consider our prayer,” Alam said. In the review petition, the government said: “Because the Muslim Family Law Ordinance having been made by the then president and same having not been promulgated by the martial law proclamation and same having been allowed to remain as a law in this country, same cannot be compared with the amendment of the Constitution made by Martial Law Proclamation and aforesaid comparison is absolutely untenable.”

This court committed an error apparent on the face of the record in justifying the amendment of the Constitution by the Martial Law Proclamation. The petition said the comparison made by the court is not justified and so the instant judgement is required to be reviewed.

It is clear enough that only Bangabandhu Sheikh Mujibur Rahman has been recognised as the founding father of the nation. But the court had committed an error by observing a popular word, namely “founding fathers” of the country. Hence, the verdict is required to be reviewed, according to the review petition.

The review petition also said the court had committed an error by observing “we must get rid of this obnoxious ‘our men’ doctrine and suicidal ‘I alone’ attitude”. This observation is baseless, unwarranted and an aspersion on our political leaders and is being beyond the issue of this case; hence, these are liable to be expunged, it said.

“‘Our election process and the Parliament remain in infancy. People cannot repose trust upon these two institutions,’ the apex court observations are not correct and the apex court made the remark against legislature being unwarranted, uncalled for the contrary to the judicial norms (sic),” according to the petition.

The apex court’s observations that parliamentary democracy is immature in the country and it would be a suicidal attempt to give Parliament the power of removal of judges is not only derogatory, rather, this being a political question, this court exceeded its jurisdiction in making such remark and being one of the organs of the state, the petition asserted. The judiciary cannot make such a comment against another organ of the state, the review petition added.

It went on: “The court having not treated any law made under Martial Law Proclamation as valid, took a contrary view in respect of the Supreme Judicial Council provision, the court committed error, which should be reviewed (sic).”

The apex court had also committed an error by making remarks and findings on the incorporation of Article 70 of the Constitution, which should be expunged.

The law relating to the formation of the Supreme Judicial Council in line with the Article 96(3) of the Constitution is yet to be enacted. Before enacting such a law, as per the Article 96 (3) of the Constitution, the court gave its order following the premature writ petition. Hence, the verdict is required to be reviewed, the review petition said.

The apex court also made an error by not taking into consideration the Fifth Amendment case review verdict, wherein condonation was allowed up to December 31, 2012, and the Seventh Amendment case verdict, wherein no condonation has been approved regarding the Martial Law Proclamation. “But the court totally overlooked those judgments while passing 16th amendment case verdict and as such the instant judgment is required to be reviewed,” the review petition said.

Earlier, on July 3, the Supreme Court upheld the High Court verdict that declared illegal the 16th Amendment to the Constitution establishing Parliament’s authority to remove Supreme Court judges.

Later, on August 1, the apex court released the full text of its verdict upholding the High Court verdict that declared illegal the 16th Amendment to the Constitution, establishing Parliament’s authority to remove Supreme Court judges.

The copy of the 799-page full verdict was released after all members of the Appellate Division bench, headed by then Chief Justice Surendra Kumar Sinha, signed it.

In his observation, the then Chief Justice had observed that Article 116 of the Constitution had been in conflict with Article 109.  

The Article 116, which was amended during the fourth amendment to the Constitution, empowered the President to control (including postings, promotions, leave and discipline) the persons employed in the judicial service in consultation with the Supreme Court, Sinha had said.

On the other hand, according to Article 109, the High Court Division shall have “superintendence” and control over all courts and tribunals subordinate to it.  

“If the High Court Division has superintendence and control over the lower judiciary, how it shall control the officers performing judicial works if the executive controls the posting, promotion and discipline. The disciplinary action is not clear to me,” the then Chief Justice had added.

He had also said, “Keeping the control and disciplinary mechanism of the officers of the lower judiciary with the executive, the judiciary can’t be independent and this provision is not only inconsistent with Article 109, it is also inconsistent with Article 116A, which has also been substituted by the Constitution’s Fourth Amendment.”

Under this provision, it is said that all the persons employed in the judicial service and all the magistrates shall be independent in the exercise of their judicial functions, Sinha had said, adding that there cannot be any independence in the judiciary if the disciplinary mechanism, including the

power of appointments, postings and promotions of the officers of the lower and higher judiciary, are kept in the hands of the executive.

“Inasmuch as there is no mechanism under the scheme of the Constitution as to how the executive shall control the power of posting, promotion and discipline of persons employed in the judicial service and the higher judiciary,” he had added.

16th amendment verdict

Govt files review petition

In its review petition, the government has said the Supreme Court (SC), in its verdict on the 16th amendment case, had committed an error apparent on the face of the record in justifying the 16th amendment to the Constitution by Martial Law Proclamation. Attorney general Mahbubey Alam told reporters that they have filed the review petition with the related branch of the SC, seeking the cancellation of the full verdict of the Appellate Division that upheld a High Court (HC) judgment scrapping the 16th amendment to the Constitution. Weve submitted the 908-page review petition that contains 94 grounds on which the SC can consider our prayer, Alam said. In the review petition, the government said: Because the Muslim Family Law Ordinance having been made by the then president and same having not been promulgated by the martial law proclamation and same having been allowed to remain as a law in this country, same cannot be compared with the amendment of the Constitution made by Martial Law Proclamation and aforesaid comparison is absolutely untenable. This court committed an error apparent on the face of the record in justifying the amendment of the Constitution by the Martial Law Proclamation. The petition said the comparison made by the court is not justified and so the instant judgement is required to be reviewed. It is clear enough that only Bangabandhu Sheikh Mujibur Rahman has been recognised as the founding father of the nation. But the court had committed an error by observing a popular word, namely founding fathers of the country. Hence, the verdict is required to be reviewed, according to the review petition. The review petition also said the court had committed an error by observing we must get rid of this obnoxious our men doctrine and suicidal I alone attitude. This observation is baseless, unwarranted and an aspersion on our political leaders and is being beyond the issue of this case; hence, these are liable to be expunged, it said. Our election process and the Parliament remain in infancy. People cannot repose trust upon these two institutions, the apex court observations are not correct and the apex court made the remark against legislature being unwarranted, uncalled for the contrary to the judicial norms (sic), according to the petition. The apex courts observations that parliamentary democracy is immature in the country and it would be a suicidal attempt to give Parliament the power of removal of judges is not only derogatory, rather, this being a political question, this court exceeded its jurisdiction in making such remark and being one of the organs of the state, the petition asserted. The judiciary cannot make such a comment against another organ of the state, the review petition added. It went on: The court having not treated any law made under Martial Law Proclamation as valid, took a contrary view in respect of the Supreme Judicial Council provision, the court committed error, which should be reviewed (sic). The apex court had also committed an error by making remarks and findings on the incorporation of Article 70 of the Constitution, which should be expunged. The law relating to the formation of the Supreme Judicial Council in line with the Article 96(3) of the Constitution is yet to be enacted. Before enacting such a law, as per the Article 96 (3) of the Constitution, the court gave its order following the premature writ petition. Hence, the verdict is required to be reviewed, the review petition said. The apex court also made an error by not taking into consideration the Fifth Amendment case review verdict, wherein condonation was allowed up to December 31, 2012, and the Seventh Amendment case verdict, wherein no condonation has been approved regarding the Martial Law Proclamation. But the court totally overlooked those judgments while passing 16th amendment case verdict and as such the instant judgment is required to be reviewed, the review petition said. Earlier, on July 3, the Supreme Court upheld the High Court verdict that declared illegal the 16th Amendment to the Constitution establishing Parliaments authority to remove Supreme Court judges. Later, on August 1, the apex court released the full text of its verdict upholding the High Court verdict that declared illegal the 16th Amendment to the Constitution, establishing Parliaments authority to remove Supreme Court judges. The copy of the 799-page full verdict was released after all members of the Appellate Division bench, headed by then Chief Justice Surendra Kumar Sinha, signed it. In his observation, the then Chief Justice had observed that Article 116 of the Constitution had been in conflict with Article 109. The Article 116, which was amended during the fourth amendment to the Constitution, empowered the President to control (including postings, promotions, leave and discipline) the persons employed in the judicial service in consultation with the Supreme Court, Sinha had said. On the other hand, according to Article 109, the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. If the High Court Division has superintendence and control over the lower judiciary, how it shall control the officers performing judicial works if the executive controls the posting, promotion and discipline. The disciplinary action is not clear to me, the then Chief Justice had added. He had also said, Keeping the control and disciplinary mechanism of the officers of the lower judiciary with the executive, the judiciary cant be independent and this provision is not only inconsistent with Article 109, it is also inconsistent with Article 116A, which has also been substituted by the Constitutions Fourth Amendment. Under this provision, it is said that all the persons employed in the judicial service and all the magistrates shall be independent in the exercise of their judicial functions, Sinha had said, adding that there cannot be any independence in the judiciary if the disciplinary mechanism, including the power of appointments, postings and promotions of the officers of the lower and higher judiciary, are kept in the hands of the executive. Inasmuch as there is no mechanism under the scheme of the Constitution as to how the executive shall control the power of posting, promotion and discipline of persons employed in the judicial service and the higher judiciary, he had added.