Govt now wants to control SC, says CJ
Chief Justice (CJ) Surendra Kumar Sinha alleged yesterday that the government wants to control the Supreme Court (SC), just like it is controlling the lower courts of the country. You (government) have controlled the lower courts and now want to control the Supreme Court, the CJ said during the hearing on an appeal on the 16th Amendment to the Constitution, which empowers Parliament to remove SC judges for incapacity or misbehaviour.
When attorney general (AG) Mahbubey Alam began placing his arguments before a seven-member bench of the Appellate Division, headed by the Chief Justice, the bench commented that the government has taken 80 per cent control of the lower courts. Pointing his finger to the AG, the CJ said: Mr attorney general, weve some more questions for you about the judiciary. But Ill not ask them in the presence of the media.
Citing what constitutions of other countries say about the role of the CJ and judiciary, the CJ said: We should follow them. If you (AG) are talking about the independence of the judiciary, the issue of Section 116 of the Constitution will come up before us, as the lower courts are not under the control of the Supreme Court because of Article 116, the CJ added.
The AG said a statue has been put up in front of the SC and it has turned into an issue.
Please dont raise the example of the statue with this issue, the CJ replied, adding that the lower courts have become paralysed.
Hence, I am bound to make a statement on the issue, he said.
There is no district and sessions judge in a district for the last five months. If the district judge is absent for five months, how will the judiciary play its role? the CJ wondered.
After wide-ranging discussions between the CJ and the AG on several issues, the apex court asked the AG to place his arguments on the 16th Amendment to the Constitution.
The AG told the court that some observations of the High Court relating to the 16th Amendment were incorrect. Those observations should be scrapped in the apex court verdict, he said.
Justice Abdul Wahhab Miah, a judge of the seven-member bench, then said that the apex court used to deliver its verdict after wide-ranging discussions on the Constitution, fact and law. The CJ wanted to know the present status of the 16th Amendment. The AG said the Constitution has already been printed incorporating the 16th Amendment. The provision of Supreme Judicial Council was brought through martial law, he added.
You are talking about martial law. The law of 1982 still exists. The judiciary has always tolerated illicit laws, the CJ said. The AG said the 16th Amendment was brought only to bring back the original Constitution framed in 1972. It was not done with any political motive. But the High Court verdict made some comments against Parliament members, he added. The CJ said the apex court would revise the verdict if there are any bad comments against Parliament members.
Weve tolerated many comments of ministers. The law minister used to say the judiciary is independent and judges salary has been increased. Do you think the judiciary is independent? the CJ asked the AG.
As Chief Justice, Ive told something only in the interest of the judiciary, he said.
We noticed that the socio-economic condition has changed, if we compare 1972 and 2017. The Constitution should be changed along with the socio-economic situation. Weve to go forward and everything should be done after striking a balance, the CJ said.
The AG said the amendment was brought in Article 96 to eradicate the stigma of martial law. Why have you kept Article 70, which is called floor-crossing, the CJ said. If you cant have confidence on your own Parliament members, how will you have confidence on the judges? he added.
After that, the CJ left the courtroom without making any declaration about the next hearing on the appeal. However, lawyers said the CJ, along with other judges, left the courtroom as the time of hearing had ended. The next hearing is likely to be placed today (Wednesday).
On February 8, the SC appointed 12 senior jurists as amici curiae (friends of court), seeking their opinion on the legality of the 16th Amendment.
On September 17, 2014, the Jatiya Sangsad passed the Constitution (16th Amendment) Bill, 2014 by 3270 votes as the Speaker put it to division. It empowers Parliament to impeach judges of the SC for incapacity or misconduct. Nine SC lawyers filed a writ petition before the High Court on November 5, 2014, questioning the validity of the amendment. On May 5 last year, the HC declared the 16th Amendment illegal. On January 4 this year, the government filed an appeal challenging the HC decision. The Constitution, drafted in 1972, had given the MPs the power to impeach judges and decide their terms in office. But after the Fourth Amendment in 1975, the power was vested with the President.
