Supreme Judicial Council revived

The Supreme Judicial Council, not parliament, will deal with allegations against the Supreme Court judges over incapacity or misconduct, according to an Appellate Division verdict yesterday.
The judgment, on a review petition filed by the previous government against an SC verdict of 2017, ends an eight-year-long stalemate and scraps the 16th amendment of the constitution that empowered parliament to deal with the allegations against SC judges.
Before the 16th amendment was made in 2014, the council — comprising the chief justice and two other senior judges of the Appellate Division — had the authority to probe such allegations and make necessary recommendations to the president for taking action.
But when the High Court in May 2016, scrapped the 16th amendment, the parliament lost its power to deal with the matter. However, the council could not be made functional as the then government challenged the HC verdict before the Appellate Division.
Even after the Appellate Division in July 2017, upheld the HC verdict paving the way for making the council functional, the government filed a review petition, which created the legal stalemate.
Yesterday, a six-member bench of the Appellate Division, led by Chief Justice Syed Refaat Ahmed, disposed of the review petition after holding hearing, Attorney General Md Asaduzzaman told The Daily Star.
The apex court also made some observations which would be known once the full text of the verdict was released, he added.
Appreciating the revival of the council, Law Adviser Asif Nazrul yesterday said the verdict gives the people, including students, a platform to raise their concerns, reports UNB.
“The Supreme Judicial Council has been reactivated. There was some confusion surrounding this, but the court’s verdict has cleared that. Now, the council can be made fully operational,” he said while speaking to reporters at the Secretariat.
He said the forum responsible for ensuring accountability of judges has been reinstated.
“If a complaint is lodged today, the process will begin immediately. There’s no need for a separate notification; it is clearly stated in the constitution.
“When the council was inactive, there was no forum to ensure the accountability of the higher judiciary. At that time, the court administration also lacked the will to ensure such accountability, as they were delivering judgments dictated by others,” Nazrul added.
He said, “There are some judges in the High Court against whom various sections of the society have many complaints. Some of them became instruments of the fallen oppressive regime. There are also allegations of corruption against a few. There have been reports in the media, and many are angry about this. Now, through the council, there is a constitutional way to address these grievances,” he said.
THE HISTORY
The constitution of 1972 empowered parliament to probe allegations against judges. But the 4th amendment in 1975 scrapped the parliament’s power and empowered the president.
The president’s power was curtailed in 1978 through a martial law proclamation and the council was introduced. It was ratified and validated by the 5th amendment in 1979.
In 2005, the HC declared the 5th amendment illegal but condoned the introduction of the Supreme Judicial Council.
In February 2010, the SC upheld the 2005 HC verdict, and said the system of Supreme Judicial Council would be valid until December 31, 2011.
The AL-led government in mid-2011 made the 15th amendment to the constitution, allowing the council to continue but in September 2014, the AL government abolished the council bringing the 16th amendment.
However, following a writ petition filed by some SC lawyers, the HC on May 5, 2016, declared the 16th amendment unconstitutional and void saying the changes went against the principles of the separation of powers and the independence of the judiciary.
The government appealed to the Appellate Division.
A full bench of the Appellate Division, led by the then chief justice Surendra Kumar Sinha, who was allegedly forced to leave the country, heard the appeal, and delivered a verdict on the appeal July 3, 2017.
In the judgment, the apex court rejected the appeal and upheld the HC verdict.
In the full text of the verdict released on August 1, 2017, it said the power of the council to probe allegations against SC judges and making recommendations on their removal for misconduct or incapacity has been reinstated in the constitution.
The Hasina-led government then filed a 908-page review petition with the Appellate Division on December 24, 2017, outlining 94 grounds on which the court could consider the government’s plea for restoring the 16th amendment, cancelling the provision for the council.
This petition was disposed of yesterday.
Justice Sinha’s 2017 verdict strained the relationship between him and the AL government. He had to leave the country in October that year amid a further deterioration of the relationship, according to media reports.
HEARING, REACTIONS
Yesterday, AG Asaduzzaman told newsmen at the court that following the judgment, the judiciary has moved to a place where it can perform its duties independently, devoid of corruption and politics.
During the hearing yesterday, Asaduzzaman told the SC bench that he would not defend any of grounds the previous government placed in the review petition as those were baseless.
He, however, placed an appeal asking the court to clarify an ambiguity regarding the retirement ages and resignation of SC judges.
Manzill Murshid, lawyer for the 2016 writ petitioners, told the court that the petition was filed to protect the independence of the judiciary.
He said the Appellate Division had upheld the HC verdict but then law minister Anisul Huq had said that the government would not comply with the SC verdict. The review petition was not acceptable. and it should be rejected, he told the court.
Murshid also said SC judges being able to resign was their fundamental right.
On behalf of the SC Bar Association, lawyer Md Ruhul Quddus Kazal told the bench that the previous government had committed fraud. It did not print or publish the constitution in accordance with the SC judgment.
He prayed to the apex court to summarily reject the review petition.
No lawyer placed any argument before the court yesterday on behalf of the then Hasina government that filed the review petition seven years ago.
Lawyer Manzill Murshid told The Daily Star that the Supreme Judicial Council has so far conducted inquiry into allegations against three HC judges.
One judge was removed following recommendation of the council and the other two judges resigned before the inquiries ended, he said.
The council can launch inquiries into the allegations against 12 HC judges, who have been recently excluded from judicial activities, if the president asked the council to do so, he added.