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The Appellate Division of the Supreme Court on Thursday opined that a six-member full bench of the apex court is competent to hold hearing on the review petition filed challenging its earlier verdict that upheld the cancellation of the 16th Constitutional amendment.
A six-member bench of the Appellate Division headed by Chief Justice Obaidul Hassan passed the decision after holding a hearing with some senior lawyers regarding the issue.
A seven-member bench of the Appellate Division heard the appeal and upheld the HC verdict that cancelled the 16th Constitutional amendment, brought to restore Parliament’s power to remove judges for incapacity or misconduct.
The petition filed by the state seeking review of that judgment came for hearing on November 16 in the six-member full bench of the apex court. A question was then raised on that day as to whether a six-member bench can hear a review petition filed against a verdict delivered by a seven-member bench.
In this situation, the Appellate Division on November 16 instantly took opinions from some senior lawyers who were present in the courtroom. It also fixed November 23 for passing an order on the issue.
The review petition was scheduled to be heard on Thursday. However, the apex court cannot reach the item on the day. It may be heard in any day, said Manzill Murshid, a lawyer of the writ petitioners who challenged the amendment.
On November 16, eight senior lawyers gave their opinion on the issue. Most of the lawyers said the six-member bench is competent to hold hearing on the review petition. They said the Appellate Division has six judges now. The full bench is comprised of them. The number of judges is not a factor.
They further said in the rules there is no mention of judges’ numbers. So, there is no bar to hold hearing on the review petition.
Another lawyer who opposed his colleagues said although there is no mention of judges’ number in the rules, it will make a precedent. Therefore, it is not appropriate to invite a fresh debate.
The government on December 24 in 2017 filed a petition with the Appellate Division seeking review of its judgement that upheld the High Court verdict scrapping the 16th amendment to the Constitution.
The amendment, made on September 17 in 2014, had abolished the Chief Justice led Supreme Judicial Council (SJC) and restored parliament’s power to remove the judges. But it was challenged with the HC on November 5 in 2014, through a writ petition filed by nine SC lawyers.
Following the writ petition, the HC declared the amendment illegal on the basis of the view of the majority on May 5 in 2016. Later, the government appealed against the HC verdict.
The Appellate Division delivered the verdict on July 3 in 2017, rejecting the appeal and upholding the HC verdict and released the full text of the verdict on August 1 in 2017.