Govt applys to SC for restoration a part of 5th amendment

The government on Monday (June 20) filed an application to the Appellate Division of the Supreme Court (SC) seeking modification of a part of its judgment on the Fifth Amendment to the Constitution.

The matter was put on the top of the cause list for hearing today (Tuesday).

Attorney General Mahbubey Alam filed the application intending to allow the retired judges of the High Court Division move cases before the Appellate Division of the apex court until the Parliament took any decision on the issue.

According to the Article 99 of the Constitution, reprinted by the Law Ministry on February 10 this year after the Appellate Division delivered its judgement on the Fifth Amendment last year, the retired judges of the HC Division were barred to move cases before the Appellate Division.

The retired judges of the HC Division were allowed to move cases before the Appellate Division through a martial law proclamation in 1977. Later, the proclamation was included in the Constitution by the Fifth Amendment passed in the Parliament in 1979.

Since then, the retired HC judges have been pleading cases in the Appellate Division. But, in the reprinted Constitution, the opportunity of their practice in the apex court was excluded from the Constitution.

Article 99 of the reprinted Constitution also barred the judges to be chief adviser or adviser of the caretaker government.

The earlier Article 99 states, “(1) Except as provided in clause (2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office or profit in the service of the Republic not being a judicial or quasi-judicial office 60a or the office of Chief Adviser or Adviser.

(2) A person who has held office as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.”

The Article 99 of the reprinted Constitution states, “A person who has held office as a judge (otherwise than as a additional judge pursuant to the provision of Article 98) shall not after his retirement or removal plead or act before any court or authority or be eligible for any appointment in the service of the Republic (or the office of Chief Advisor or Advisor).”

Mahbubey Alam told the journalists that after passing the Fifth Amendment, the retired HC judges got opportunity of practicing law before the Appellate Division and many judges began law practice.

But, the original Article 99 was restored through reprinting of the Constitution, barring the retired HC judges from law practice before the Appellate Division.

If the retired HC judges didn’t get the opportunity back, then their clients (litigants) would be looser, he added.

So, the application was filed to change the part of the judges in the Constitution. Actually, the court’s condone over the article regarding bar on judges’ practice in the Appellate Division was sought, he said.

Meanwhile, another writ petition filed regarding the reprinted Constitution is under trial at the bench of the HC Division comprising Justice Farid Ahmed and Justice Md Shawkat Hossain.

Regarding the changing of the Article 99 in the reprinted Constitution, some legal experts earlier told press that the Article was changed even after the judgment on the Fifth Amendment didn’t say anything about the matter.