The Appellate Division on Sunday rejected government’s leave to appeal petition challenging a High Court verdict that declared ‘ineffective’ and ‘without legal basis’ Speaker Abdul Hamid’s previous ruling that Justice A H M Shamsuddin Choudhury violated the Constitution by making ‘derogatory comments’ against Parliament.
However, the highest court made some observations, a government lawyer said. “The permission to appeal hasn’t been granted, but there are some observations,” Akhtar Imam told bdnews24.com after the full bench led by Chief Justice Mohammad Muzammel Hossain issued the verdict. He, however, said, “Detail can not be said before the full text of the verdict is available.”
“But,” he added, “My experience says the High Court observations on the issue will not see much change. Rather, most of them will be retained.” If there were massive changes in the High Court verdict, the permission to appeal would have been given, he argued.
The court heard the plea on Thursday. Attorney General Mahbubey Alam argued for the state while Barrister Rokonuddin Mahmud represented the petitioner.
The High Court bench of justices Hasan Foez Siddique and ABM Altaf Hossain had made the observation in its verdict on July 24 after a petition sought the court’s intervention over the Speaker’s June 18 ruling that Justice Choudhury violated Article 78 (1) of the Constitution.
The full order of the High Court was released on Aug 27, resurrecting the debate as to which one is superior – the legislature or the judiciary. The court had in its order observed the Speaker’s ruling was non-existent in the eye of law and ‘has no legal effect’. That ruling was not consistent with the Article 96 (95) of the Constitution and was also inconsistent with the Parliamentary procedures and the Constitution, it had observed. The government filed an appeal seeking stay on the High Court order and the Supreme Court Chamber judge Nazmun Ara Sultana on Sep 3 referred the petition to the full bench of the Appellate Division for hearing.
During Thursday’s hearing, Attorney General Mahbubey Alam said the judiciary had nothing to do with the Speaker’s ruling.
“Speaker is all-in-all in the Parliament. The decision he gives about the members of Parliament is final.
“If someone goes through the full ruling, s/he will find it timely and logical. I don’t think there is anything to file a writ over it,” he had argued. “The Supreme Court and the Parliament are two institutes created by the Constitution. They are complimentary to each other. I think the case has created differences [between them],” the government’s top law official had told the court.
“The court cannot cancel or expunge any ruling of the Speaker. But it can send suggestion to the Speaker regarding any remarks if it thinks necessary. But it is the discretion of the Speaker whether to add it in the ruling,” he had said. On the other hand, the writ petitioner’s counsel Barrister Rokanuddin, referring to the Rules of Procedure of Parliament, had told the court that the Parliament cannot raise question about any statutory court, ‘that means any court or tribunal’. “And the Supreme Court is the guardian of the Constitution,” he had added.
“According to our Constitution and the law of the country there is no scope to talk about a sub-judice issue in the Parliament, then how can it be discussed?” he had asked.
He expressed concern that a government might remove all the judges appointed during the previous government’s tenure, if the Section 96 of the 1972 Constitution is revived.
He had also said that the Supreme Court had the authority to cancel Parliament proceedings. “The court has cancelled two laws enacted by the Parliament. It also declared five constitutional amendments illegal. So, the Speaker’s ruling can also be challenged in the court.”
The row began after the Speaker on May 29 made a statement in Parliament that people might stand up against the judiciary if they were aggrieved by any verdict of the court. It involved an order of the High Court that had asked the Roads and Highways Department to return some land to the Supreme Court. The High Court bench of Justice Choudhury on June 5 criticised the Speaker for making that comment and dubbed the statement ‘seditious’, drawing flak from MPs.
As the situation got worse with heated arguments exchanged over the authority of the court and the Parliament, the Speaker came up with his ruling. In the ruling, he expected that the Chief Justice would himself initiate measures on the issue of the judge’s comment and that the Parliament would support the decision that he would take.
Uplod, 7oct, newsroom