Supreme Judicial Council
Provisions of the Constitution Article
96(6), 48(2) Article 96(5) of the Constitution of the People's Republic of
Bangladesh brought the matter to the notice of the President of the Republic by
letter dated 20.10.2003. The President of the Republic directed Supreme
Judicial Council to inquire into the matter and the Supreme Judicial Council in
short Council held inquiry and submitted report stating, inter alia,"
though the allegations against Mr. Justice Syed Shahidur Rahman are not proved
beyond doubt but on consideration of the facts and circumstances and the
materials on record in their entirety it cannot be said that there is total
absence of material in support of the allegations nor can it be said that the
allegations are without any basis. A concerned member of the civil society felt
that the issues raised in the writ petition having consti- tutional
ramifications and affecting pub- lic interest and fundamental rights of the
citizens this Division should be moved and hence filed the instant petition for
leave. Md. Idrisur Rahman, Advocate, Supreme Court of Bangladesh, 42/1. Ka
Segun Bagicha, Dhaka-vs-Sved Shahidur Rahman and others(Amirul Kabir Chowdhury
J) (Civil) 3ADC 896
Article 96- Supreme Judicial Council- The Supreme Judicial Council now a part of our Constitution is the safety valve against the executive onslaughts and it shall save the Judges of the Supreme Court from the onslaughts of the executive and this safety valve cannot be allowed to be fused by any logic and under any circumstances, but that is what has actually been done by Sixteenth Amendment, so the High Court Division very rightly struck down the same. At the same time, I strongly feel that steps need be taken to make the Supreme Judicial Council more effective.
Before martial law dispensation, original article 96 was no more in the Constitution and, in fact, in Fifteenth Amendment, article 96 with the Supreme Judicial Council was retained and thus it became a part of the Constitution and thereby article 96 with the Supreme Judicial Council no more bore the stigma of the Martial Law Proclamation. In the written argument, the learned Attorney General took a plea that since by Fourth Amendment, presidential form of Government was introduced in place of parliamentary form of Government, so the power to impeach the Judges of the Supreme Court was taken away from Parliament and it was vested in the President. The argument of the learned Attorney General is absolutely based on total non-consideration of the provisions of the various articles of the Constitution in Chapter I, Part V of the Constitution which have been quoted hereinbefore. I have checked up the articles in that chapter of Part V. I found no change in the provisions as to the composition and power of Parliament. It remained the same when Fourth Amendment was passed and even today it is the same as it stood on 04.11.1972. The only change made from time to time was in sub-article (3) of article 65 as to the number of nominated women members. Parliament is Parliament and its members are elected representatives of the people whatever may be form of the Government, parliamentary or presidential. I failed to understand how the learned Attorney General could make the distinction between the members of Parliament under the presidential form of Government and members of Parliament under parliamentary form of Government. The only distinction between the two forms of Government is that in the presidential form of Government, the President is the chief executive and in the parliamentary form of Government, the Prime Minister is the chief executive. The powers and functions of Parliament under both the forms of Government are the same and similar. In the context, it is very very pertinent to state that though the provisions of the impeachment of a Judge of the Supreme Court by Parliament was in the Constitution from Fourth November, 1972 upto 25th January, 1975, i.e. upto Fourth Amendment, no law was enacted pursuant to sub-article (3) of original article 96 and therefore, article 96 as it stood then never became effective and it just remained in the Constitution. (Md. Abdul Wahhab Miah, J....Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]
Article 96(4)- Code of Conduct of the Judges The Supreme Judicial Council enjoins the power as per provision of clause (4) of Article 96 to prescribe the 'Code of Conduct of the Judges- There is no Rules providing the procedure to be followed for removal of a Judge of the highest Court. The Supreme Judicial Council enjoins the power as per provision of clause (4) of Article 96 to prescribe the 'Code of Conduct of the Judges. Similarly for the purpose of inquiry also, there is no Rules or Regulations framed by the government. It is left with the discretion of the Council to follow the procedure. The Council on following conduct rules and after affording Mr. Syed Shahidur Rahman sufficient opportunity to explain his conduct and upon hearing the parties held that Mr. Syed Shahidur Rahman should not remain in the judiciary because of his conduct. This opinion having been made by the highest body authorized by the constitution and the President having taken the decision relying upon the recommendation of the Council, the judicial review is not permissible against such decision. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]
Article 96(6), 48(2)
Article 96(5) of the Constitution of the People's Republic of Bangladesh brought the matter to the notice of the President of the Republic by letter dated 20.10.2003. The President of the Republic directed Supreme Judicial Council to inquire into the matter and the Supreme Judicial Council in short Council held inquiry and submitted report stating, inter alia," though the allegations against Mr. Justice Syed Shahidur Rahman are not proved beyond doubt but on consideration of the facts and circumstances and the materials on record in their entirety it cannot be said that there is total absence of material in support of the allegations nor can it be said that the allegations are without any basis. A concerned member of the civil society felt that the issues raised in the writ petition having constitutional ramifications and affecting pub- lic interest and fundamental rights of the citizens this Division should be moved and hence filed the instant petition for leave. Md. Idrisur Rahman, Advocate, Supreme Court of Bangladesh, 42/1, Ka Segun Bagicha, Dhaka-vs-Syed Shahidur Rahman and others(Amirul Kabir Chowdhury J) (Civil) 3 ADC 896
Article 96(5)- The High Court Division cannot sit over the judgment of the Council. As per provisions of the constitution after the recommendation of the Supreme Judicial Council the President is left with no discretion other than to accord the recommendation. It is not correct to hold the view that the Council's opinion is expressly beyond the scope of article 96(5) of the constitution- The High Court Division cannot sit over the judgment of the Council. It has totally ignored that aspect of the matter and opined that the President did not apply his judicial mind in passing the order of removal of Mr. Syed Shahidur Rahman. As per provisions of the constitution after the recommendation of the Supreme Judicial Council the President is left with no discretion other than to accord the recommendation. It is not correct to hold the view that the Council's opinion is expressly beyond the scope of article 96(5) of the constitution, and that such portion of the opinion contained in the report is without jurisdiction, inasmuch as, in the absence of proof of alleged payment of money to the writ petitioner by Ms. Kona the allegations against the writ petitioner is baseless. This view of the High Court Division is totally misconceived one. The High Court Division has exceeded its jurisdiction in making such observation. As observed above, even if the payment of Tk.50,000/- has not been proved, that does not disprove the allegations made by Ms. Kona. Mr. Syed Shahidur Rahman being a sitting Judge could not entertain Ms. Kona with two of her relations at his residence for fixation of a bail matter and also he could not maintain liasion with his previous junior Ms. Jesmin Akther Keya relating to conducting cases...... Idrisur Rahman (Md.) -VS- Syed Shahidur Rahman, [4 LM (AD) 231]
Article 96 and 142- It is interesting to note that article 96(1), which relates to the age of retirement of judges of the Supreme Court, was amended on 11.11.1986 (when the country was not under democratic government) changing the retiring age from 62 years under the 1972 Constitution to 65 years. On 17.05.2004, article 96(1) was again amended changing the age of retirement of Supreme Court Judges from 65 to 67 years, this time by a democratically elected government. The Fifteenth Amendment of 2011 gave a seal of approval to article 96(1) of the Constitution of 2004 as well as the Supreme Judicial Council. If we are to accept the argument of the learned Attorney General about return to the 1972 Constitution, then we have to question why article 96(1) should not also revert to the 1972 Constitution, and why he is not advocating for that also. (Muhammad Imman Ali, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]
