• Friday, October 31, 2014

News Analysis
Judges' Impeachment

Can prisoners of parties do that?

Shakhawat Liton

An institution willing to hold other independent organs accountable for their functions must enjoy unqualified independence. This means a subservient body can in no way hold an independent institution accountable.
The government's sudden move to restore the Jatiya Sangsad's authority to impeach Supreme Court judges on grounds of misconduct has triggered the crucial question of whether MPs who constitute parliament enjoy unqualified independence to hold judges accountable.
To arrive at an answer, let us discuss the constitutional provision relating to how much independence SC judges and MPs enjoy in the exercise of their functions.   
Independence of the judiciary is one of the basic pillars of the constitution. Accordingly, Article 94 (4) of the constitution declares that the chief justice and other judges of the Supreme Court shall be independent in the exercise of their judicial functions.

The country's supreme charter in another article, Article 147, also emphatically announces that the remuneration, privileges and other terms and conditions of their service shall not be varied to their disadvantage during their terms of office.
The rules of procedure of the Jatiya Sangsad have imposed restrictions on raising question, motion or resolution which reflect on the conduct of any judge of the Supreme Court.
Even the immunity MPs enjoyed under Article 78 of the constitution in respect of what they say in parliament cannot be used to make any statement or comment which may directly or indirectly undermine the independence of the judges of the apex court.
All the measures have been made to maintain the independence of the Supreme Court judges. And an independent judiciary is one of the prerequisites for a functional democracy in a country.
But Article 70 of the constitution alone speaks all about the poor state of the independence of MPs in the exercise of their functions in parliament.
This article has imposed a tight rein on MPs, making them unable to go against their party line up or position in the House. They have no freedom to question the party's stance in parliament even if the stance is not correct. They are unable to vote against their party's decision. In other words, dissent within the parliamentary party is not permitted.
And, currently, there is little practice of democracy within the parties representing or being in parliament for the more than two decades since the restoration of parliamentary democracy in 1991. The party chief's decisions will be regarded as the party decisions.
Therefore, parliament is unable to ensure accountability and transparency of the cabinet because of these restrictions although under the constitution the cabinet is collectively responsible to the House.
The restriction has also given birth to a culture of flunkeyism in politics in which MPs are very often found to blindly appreciate the all-powerful executive's performance, instead of discharging their supervisory functions.
Former Chief Justice ABM Khairul Haque has reflected on the stringent restrictions imposed by Article 70. When he was a High Court judge, Justice Haque in the Anwar Hossain Manju versus Government of Bangladesh case verdict in 2006 observed that Article 70 made an MP "a prisoner of his party".  
So, the question regarding the MPs' independence is justified. A prisoner cannot perform independently.
And there is every possibility of an abuse of parliament's authority to impeach Supreme Court judges if such authority is restored since MPs are unable to act independently.
And reflect on the current parliament, where there is no real opposition. The ruling party has complete control over parliament, which came into existence through a one-sided general election on January 5.  
The move to restore parliament's authority has already triggered criticism about the government's intention, especially on the question of whether it wants to control the higher judiciary too.
The government will face enormous difficulties in trying to prove that it has no political purpose in wanting to restore parliament's authority by abolishing the Supreme Judicial Council.

Published: 12:01 am Sunday, July 20, 2014

Last modified: 10:17 pm Sunday, July 20, 2014

TAGS: chief justice Jatiya Sangsad News Analysis Can prisoners Supreme Court judges basic pillars

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