Some former chief justices and jurists at a meeting of the parliamentary body for constitutional amendment on April 24, 2011, strongly opposed restoring parliament's power to impeach judges by scraping the current supreme judicial council system. Some of them also informed the committee about the anxiety and fear among the apex court judges over the then move. On the basis of the meeting proceedings, Shakhawat Liton picks brief remarks of some judges and jurists on the issue.
Justice M Kamal
Opposing the move to restore parliament's authority to impeach Supreme Court judges, former chief justice Mustafa Kamal said it would undermine the dignity of lawmakers.
"It is defamatory and frustrating for you [MPs], if you are to impeach a judge after being elected to parliament on people's vote. You will certainly not enjoy doing this work. And certainly, you will not want to take this work on your hands," said the former chief justice.
"You can do nothing if parliament is empowered with this authority. The Indian parliament has the power. But how many judges have been impeached by the Indian parliament over the past 60-70 years?" Justice Kamal said.
In defence of continuing with the Supreme Judicial Council, he said the principle of jurisprudence is that no one should be judged other than one's own peers.
"For this, if an individual in the civil service commits any misconduct, we hold his trial by his senior officers. Similarly, if a district judge commits any offence, he is investigated by a senior district judge from another place and then he is punished," he continued.
He said, "Now you [MPs] can question the outcome of the Supreme Judicial Council. How many judges were expelled or punished?"
Justice Kamal, who was first a member and later chairman of the council, spoke about the weaknesses in the existing system.
"I could not catch [anybody]. The council has not been given any sort of investigative agency or power. It does not have any mechanism to investigate," he said. "Please, strengthen the Supreme Judicial Council. Try to provide it with investigative mechanisms," he added.
Justice Fazlul Karim
Former chief justice Fazlul Karim said it was good to have the Supreme Judicial Council. Giving parliament the power could be good too.
"But many [MPs] may not perceive which offence happens in which context in court. So, there lies a concern about misjudgement," he feared.
He said the original constitution (of 1972) had empowered parliament with the authority to impeach. The council was introduced later and nobody had raised any voice against it for a long time, he said.
"I think it will be better for all if this [the council system] can be implemented in a suitable way."
Justice Karim, who too was first a member and then chairman of the Supreme Judicial Council, said, "I have noticed that there is no problem in the way we can investigate [into allegations] properly through evidence and witnesses. Therefore, it is better to leave the court's matter to the court."
He said it was important to have accountability of judges. Judges were accountable to their consciencce but in this day and age “I think it is not true".
He was in favour of ensuring accountability of judges through legal mechanisms.
If judges were given a blank cheque, it might be abused, he said, mentioning previous experience in which judges were given such blank cheques.
“Therefore, accountability is a must here," he asserted.
"There will be check and balance and at the same time accountability of judges will be ensured through the Supreme Judicial Council."
Former attorney general Mahmudul Islam spoke about the ineffectiveness of the Supreme Judicial Council but opposed giving parliament the power to impeach judges.
He said the systems in other countries needs to be followed. In many countries, parliaments enjoy the power to impeach judges.
"Pardon me, we are panicking about leaving the fate of judges and others to parliament in the present situation. If we go back to the past provision, then I will say, independence of the judiciary will be at stake," said Mahmudul Islam, who is a senior advocate of the Supreme Court.
He asked if it was possible to enact any law to establish some fundamental rules and to set some criteria and transparency so that none of the judges could be made victims.
“I give [you] an example. The day before yesterday some judges came to me. They told me that if the Supreme Judicial Council was abolished and the present parliament got back its earlier authority, it might take action against some judges. If the government changes and another party comes [to power], it will take action against some others [judges]. Such a situation cannot be expected. You should consider what to do so that the independence of judges is maintained.”
He also spoke about the stringent restrictions imposed on MPs by Article 70 of the constitution.
The restrictions imposed by the article do not allow MPs to vote independently. They must abide by the party decision, whether right or wrong, since an MP will lose his or her membership of parliament if he or she goes against the party decision in the House.
Attorney General Mahbubey Alam said the original constitution (of 1972) had empowered parliament with the authority to impeach judges, which had been moved to the Supreme Judicial Council.
"All of my friends and my juniors who have become judges have already expressed their concern over the matter and many of them are in panic," he said.
He said the Awami League-led government formed in 1996 had appointed 16 judges to the High Court.
"You know how cruelly they were not confirmed [not made permanent by the BNP-led government].”
He said this government might not do anything after getting the necessary powers, but what will happen if a future government removes and appoints judges wholesale?
The attorney general suggested reforms to the Supreme Judicial Council.
He said the council had the chief justice and two other senior most judges of the Appellate Division of the Supreme Court. He proposed including three other members -- the attorney general, a senior member of the Bar Council and an MP nominated by the Speaker.
"The Supreme Judicial Council will consist of the six and not everyone a judge. In case of a tie on any decision, the matter will go to parliament," he proposed.
Ajmalul Hossain QC
Senior Supreme Court advocate Ajmalul Hossain QC spoke in favour of both the systems -- the existing Supreme Judicial Council and restoration of parliament's authority to impeach judges.
"In my view, it will be more effective of a check and balance if the authority goes to parliament … then there will be a pressure on them [judges]," he said.
He said the Indian parliament had the authority but it could not use its powers effectively.
"But the problem is, India could never do it. It has also never happened here. I don't know whether it will happen now, maybe not," he mused.
"The question of impeachment will not arise if we can appoint good judges. This [impeachment system] will exist just as a check," he added.