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HC questions legality of article 95, 116

  • Published at 12:15 am February 27th, 2017
  • Last updated at 12:27 am February 27th, 2017
HC questions legality of article 95, 116
The ruling was issued by High Court bench of Justice Quazi Reza-Ul Hoque and Justice Mohammad Ullah. The government, the secretaries to the cabinet division, law, president's office and the registrar general of Supreme Court have been asked to explain within four weeks why the constitutional provisions should not be declared illegal. The ruling was made after a writ petition was filed on November 3, 2016 by a Supreme Court lawyer Eunus Ali Akond questioning the legality of articles 48(3), 95, 98, 115 and 116. In the writ petition, he challenged the fourth amendment made in 1975 and the fifteenth amendment to the articles 95(1) and B of 95(2), and 116 which was made in 2011. He said that the articles were not the same as the ones in constitution of 1972. The amendments were contradictory to the article 109. In article 116 of the 1972 constitution, lower court judges' appointment, posting and code of conduct were controlled by the Supreme Court. The fifteen amendment did not  restore the power to the Supreme Court, though in 2011 through the Fifteenth amendment the Awami League restored the four fundamental principles of the constitution. The lawyer in the petition, also said according to article 95 a law is supposed to govern how Supreme Court judges are appointed but that law was never formed. “In the 1972 constitution the Supreme Court had the whole control of the lower courts according to the article 116 which in the fourth amendment was given to the President. “There should be a law to appoint Supreme Court's judges. But the law is yet to be framed. The whole judge appointment process is contradictory to the constitution,” Eunus Ali said. The article 95(1) of the constitution stipulates that the Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice. The other contested article, article 116 states the control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court. Last year in October Chief Justice Surendra Kumar Sinha in a message marking the ninth anniversary of the separation of the judiciary had said that the Article 116 should be restored.