Appellate Division
Bangladesh and others v Asaduzzaman Siddiqui and others
Civil Review Petition 751/2017 · Review disposed of; Article 96 restored entirely · Decided 20 October 2024
The Government sought review of the Appellate Division's judgment of 3 July 2017 in Civil Appeal No. 06 of 2017, which had dismissed its appeal against the High Court Division's declaration that the Constitution (Sixteenth Amendment) Act, 2014, providing for removal of Judges by Parliament, was colourable, void and ultra vires. The 2017 operative order expressly restored only clauses (2) to (7) of Article 96, raising doubt over clause (8), which deals with resignation of Judges. At the hearing the Attorney-General pressed only an additional ground on that ambiguity. A six-judge Bench unanimously disposed of the petition with observations. The Chief Justice held that clause (8) had been revived along with the other clauses, that the right of Judges to resign had continued unimpaired since 1972, and that only the Supreme Judicial Council may revisit the Code of Conduct. Article 96 was declared restored in its entirety. In separate opinions, two Judges also expunged political remarks made by the third Judge of the High Court Division Bench.
- Whether clause (8) of Article 96 of the Constitution, on the right of Supreme Court Judges to resign, stood revived after the appeal in the Sixteenth Amendment case was dismissed, although the operative order of 3 July 2017 expressly restored only clauses (2) to (7).
- Whether the operative part of the judgment of 3 July 2017 should be clarified to declare Article 96 restored in its entirety.
- Once the appeal against the High Court Division's judgment was dismissed, the Sixteenth Amendment was no longer in force and clauses (2) to (8) of Article 96 were revived.
- The express reference to restoring only clauses (2) to (7) in the 2017 order did not mean that clause (8) was not concomitantly revived, since the resignation provision had continued in the Constitution as clause (4) of the amended Article 96.
- The right of resignation is an entrenched right of constitutional office-holders, and there is no constitutional necessity for singling out Judges of the apex Court to relinquish it; it has continued unimpaired since 1972.
- The Code of Conduct contemplated by Article 96(4)(a) permits growth and change, drawing on the inherent power of only the Supreme Judicial Council to revisit its provisions.
- Per Zubayer Rahman Chowdhury J, the formulation of a Code of Conduct by the Appellate Division in Civil Appeal No. 06 of 2017 exceeded its authority, because that power vests exclusively in the Supreme Judicial Council, which must now formulate the Code afresh.
- To remove any ambiguity in the operative part of the 2017 judgment, clauses 2 to 8 of Article 96 were declared restored in their entirety.
But to dispel any confusion and to obviate any necessary ambiguity and dispute in the operation of the operating part of the impugned judgment, clauses 2-8 of Article 96 are, hereby, declared to be restored in their entirety.
