Parliament and judiciary: Striking a balance
A Supreme Court (SC) lawyer recently filed a writ petition with the High Court challenging the legality of the 16th Amendment made to the Constitution of the People's Republic of Bangladesh regarding the removal of SC judges based on incapacity and misconduct (The Daily Star, 15/10/14). The amendment allows the parliament to impeach judges with a two-thirds majority vote. Although the judiciary has removed previous amendments to the Constitution, for example the 5th Amendment and the 13th Amendment to the Constitution, there have been innumerable petitions filed with the SC to remove laws passed by the parliament. A prime example is the 15th Amendment to the Constitution, which removed the caretaker government system, and petitions challenging the amendment have not been accepted by the SC. The current petition challenges the qualification of the Members of Parliament (MP), which in essence challenges the 'choice' of the citizens who elected the people. The credibility of the petition lies in challenging the representatives of the people in Bangladesh, and integrity of the petition will be tested when the SC hears the petition.
Apart from the issue that people and parties file writ petitions at will without showing proper and legal cause for removal of laws, what we can take from this is that the judiciary is an independent body that can take decisions on any law passed by the parliament and decide whether the passed bill is within the limits of law and whether it is 'constitutional.' In a Westministerial system of government, the executive is accountable to the legislative, which is the parliament, as well as the judiciary. However, the judiciary can be said to have power over the legislative and can hold the parliament accountable to an 'independent' body. Such balance of power, which is to be the arrangement in Bangladesh, holds the most important organs of the state within checks-and-balances and prevents ethem from abusing power. With the risk of stating the obvious, the judiciary is bound by the law and not above it.
There had been a long-standing and intense debate among the civil and political societies in Bangladesh for years about the separation of the judiciary from the executive. It was not until the caretaker government regime, which came to power following the emergency rule initiated in January of 2007, that an increase in autonomy of the judicial branch of the government was taken into consideration. Although the separation had been made under the regime, it can be argued that the 'democratically' elected party returned some of the functions to the district magistrates and the judiciary still lacked control over the postings, promotions and disciplining judges. Some academics had considered the separation and autonomy to be only nominal. Nevertheless, one may argue that the country had been moving forward to separate the powers of the most important organs of the state in addition to the claim that the parliament has had very little scope to influence or have a significant effect on the judiciary.
During the tenure of the last Bangladesh Nationalist Party (BNP) government from 2001 to 2006, a total of 45 judges were appointed to the Supreme Court. After the elections following the caretaker rule, it took only two years to appoint about the same number of judges to the High Court Division of the Supreme Court of Bangladesh by the Awami League (AL) government that the BNP did in five years time during their last tenure. Out of the 42 judges appointed by October of 2011 (since 2009), two of them have been allegedly involved in criminal offence and strong political linkage have been implied with other ones.
Today, the ruling party (AL) holds about four-fifth of the seats in the parliament. In addition to that, Article 70 of the Constitution states that a MP cannot vote against his/her party line, and if one wishes to do so he/she will have to vacate the seat. The Constitution further explains that abstaining from voting from the party is a viable reason to have to give up one's seat in the parliament. Thus, what the recent amendment does is that if the ruling party decides to impeach an SC judge, the motion will be carried forward and the judge will be impeached. One must admit that such formal provisions do not only show a conflict of interest among the two bodies, which gives power to the parliament over the judiciary, but other laws can complement the new laws in acting as an obstacle for the judiciary to be insulated from the politicisation that thrives within our political culture. In addition, countries that have such provisions have yet to impeach a SC judge based on the mentioned premises. Given such power to the parliament, when a new party comes to power it may create havoc where parties would put forward motions to impeach judges whose rulings they may not concur with. In the future the parliament may not have such a majority by one party as it does today, but no one can deny that the illiberal politics of Bangladesh may create disorder among the institutions that facilitate proper governance of the country.
The author is a Research Associate at the BRAC Institute of Governance and Development (BIGD), BRAC University. He is a member of the Politics, Democracy and Governance cluster.
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