Dhaka, Aug 19 – Law Commission Chairman Justice ABM Khairul Haque on Saturday said aversion is evident in the Supreme Court verdict scrapping the 16th amendment to the Constitution.
“What was stated in the observations of the verdict bears aversion, if not liking,” he said.Khairul Haque, also a former Chief Justice, was addressing a discussion titled ‘National Mourning Day, 16th amendment and Sheikh Hasina’s politics of development’ at the city’s Cirdap Auditorium.
Pointing out some of the SC observations that the MPs are ‘immature’, Parliament is ‘dysfunctional’ and that Parliament did not ‘obey’ their directives, he said, “If those came as a result of liking and aversion, I think, you have to judge what the position of that judge will be and whether he violated the oath of office.”
The Law Commission chairman also said, “We, the judges, won’t do anything out of liking or aversion after taking the oath. No judge can write anything being averse to anything. If he/she writes, the oath is violated. And you know well what can be if the oath is breached.”
Talking about the nine amici curiae who presented their deliberations before the apex court during the hearing on the amendment to the national charter, he said eight of them strongly supported the annulment. “There’s no doubt they’re very learned and knowledgeable persons. They’re practising at the very Supreme Court from where they’re earning a lot.”
Then he cited an incident while practising as an apprentice lawyer 48 years ago, saying: “My senior had said to me, ‘Appease the god with the mantra with which he gets happy’. I hope you understand what I’ve said. I’ve nothing to say about the amici curiae.”
Mentioning that there is a grammar for writing any verdict, the former Chief Justice said, “We follow that grammar. Generally, there’s no scope of going beyond related issues. If there’s any deviation, there should be close to it. It’s not fair to say anything beyond the issue.”
He also defended article 116 of the current Constitution which stipulates: ‘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’.
Khairul described this system of the judiciary as the best, saying there is no scope for doing anything extreme either by the Supreme Court or the government under it. “The power might be abused if it is bestowed upon a single entity. The Chief Justice dragged the matter into the 16th amendment verdict and said many things which are beyond the issue. I don’t think that he was right.”
Noting that the article 116 of the existing constitution is one of the main reasons behind the sluggishness of the judiciary, Chief Justice SK Sinha had demanded the reinstatement of the same article of the country’s original national charter. As per the Constitution of 1972, the control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service was completely exercised by the Supreme Court.
About Chief Justice’s comments on MPs, the Law Commission Chairman said they are public representatives, and that is their first qualification, a big identity, an identity of respect. “Here, the Chief Justice described that Parliament as immature. This is shocking.”
About Chief Justices’ remarks that Parliament did not obey their instructions, he said the Supreme Court has no authority to issue directives to Parliament. “Parliament is not bound to abide by the instructions even if those are issued. Parliament is sovereign. Country’s all institutions belong to it.”
Khairul said SK Sinha made the most derogatory remarks when he described Parliament as dysfunctional. “Describing Parliament as dysfunctional can’t be the language of a judge, the judiciary and the Supreme Court.”
About the criticism that he cannot make such remarks being the Chairman of the Law Commission, he said the critics have no knowledge about the commission.
Food Minister Qamrul Islam and former diplomat Waliur Rahman, among others, spoke at the programme arranged by Bangladesh Heritage Foundation, and National Security and Council Terrorism. – UNB
