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State seeks review of 16th amendment verdict on 94 grounds

  • Published at 12:02 pm December 24th, 2017
  • Last updated at 10:49 pm December 24th, 2017
State seeks review of 16th amendment verdict on 94 grounds
The government has filed a review petition seeking cancellation of the full verdict of the Supreme Court that upheld a High Court judgment scrapping the 16th constitutional amendment. The petition was submitted to the department concerned of the Appellate Division of the Supreme Court yesterday morning, said Deputy Attorney General Ekramul Haque Tutul. In the petition, the state also sought cancellation of the “irrelevant, unnecessary and objectionable” comments made in the 16th constitutional amendment judgment, he added. Some 94 grounds were also mentioned in the review petition, the deputy attorney general also said. Attorney General Mahbubey Alam briefed reporters around 11am in this regard. The state's review petition lists 94 grounds, the first few of which are as such- The state argues that the verdict's observations say Founding Fathers of the country, whereas “it is clear enough that only Bangabandhu Sheikh Mujibur Rahman is recognized as father of the nation and this court committed an error apparent on the face of the record observing a plural word.”
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It says the court committed an error arriving at the observation that “our election process and the Parliament remain in infancy,” that it is beyond the issue of the current case and such remark by judiciary being unwarranted, uncalled for and contrary to judicial norms and calls for this to be expunged. It protests a part of the observations of the verdict that says “We must get rid of this obnoxious 'ourmen' doctrine and suicidal 'I alone' attitude,” saying this is baseless and an aspersion to political leaders. It says another observation of the court, that the parliamentary democracy is immature and it would be suicidal to give parliament the power to remove judges, is not only derogatory but also, the court exceeded its jurisdiction since it is a political question. Being one of the organs of the state, the judiciary cannot make such a comment against another organ of the state, the state argues in the review petition. The petition asked for these aforementioned observations to be reviewed or expunged. 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 ruling. 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, said the SC additional registrar Sabbir Foyez. In his observation, the then Chief Justice said Article 116 of the Constitution had been in conflict with Article 109.
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The Article 116, which was amended during the fourth amendment to the Constitution, empowered the President to control (including posting, promotion, leave and discipline) the persons employed in the judicial service in consultation with the Supreme Court, Sinha 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 chief justice added. He 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 exercise of their judicial functions, Sinha said adding that there cannot be any independence in the judiciary if the disciplinary mechanism, including the power of appointment, posting and promotion of the officers of the lower and higher judiciary, are kept in the hands of the executive. “In as much as, there’s 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 added.