ACCORDING to newspaper reports, the Ministry of Law and Parliamentary Affairs has floated a draft proposal for divesting the Supreme Judicial Council of the power to impeach judges of the Supreme Court and vest that power in the Parliament. The ministry believes that the power vested in the Supreme Judicial Council by the martial law regime of General Ziaur Rahman through a Martial Law Proclamation (and then ratified by the 5th Amendment to the Constitution) undermines the authority of the Parliament. According to this proposal, restoring the power of the Parliament as provided for in the original Constitution of 1972 would ensure the accountability of judges to the Parliament and restore its authority.
The current government's professed respect for constitutional provisions, keenness to uphold the dignity of the Parliament, and the desire to restore the provisions of 1972 Constitution are well canvassed. However, apart from the supporters of the government, there will be few who would believe in the bona fide of this proposed amendment to the Constitution.
Indeed, more damagingly for the government, the attempt of the Ministry of Law is clearly incompatible with the observation of the Appellate Division in Khondker Delwar Hossain, Secretary BNP and Another v Bangladesh Italian Marble Works and Others (2010) 62 DLR (AD) 298. In this judgment, General Ziaur Rahman has been very rightly termed as a usurper possessing no legal authority to amend the Constitution and, thus, the 5th Amendment to the Constitution has been declared as unconstitutional.
Nonetheless, the changes made by General Rahman's regime regarding the power of impeachment of judges of the Supreme Court have been endorsed by the Appellate Division in the following terms:
“It also appears that the provision of Article 96 as existed in the Constitution on August 15, 1975 provided that a Judge of the Supreme Court may be removed from the office by the President on the ground of 'misbehaviour or incapacity.'
However Clauses (2), (3), (4), (5), (6) and 7 of Article 96 were substituted by the Second Proclamation (Tenth Amendment) Order, 1977 providing the procedure for removal of a Judge of the Supreme Court of Bangladesh by the Supreme Judicial Council in the manner provided therein instead of earlier method of removal. This [sic] substituted provisions being more transparent procedure than that of the earlier ones and also safeguarding independence of judiciary, are to be condoned.” (Para 232)
Mr. Suranjit Sengupta, the chairperson of Parliamentary Standing Committee on Law, Justice, and Parliamentary Affairs is quoted saying: “The Parliament cannot be sovereign if it cannot hold all branches [of the State] to account. We must amend Article 96 to ensure the sovereignty of Parliament,” (Bdnews24.com, July 17). It is not certain whether Mr. Sengupta has used the words “sovereignty of Parliament” or some other synonymous words with a different legal connotation.
But if he has been quoted properly, it must be said that his position is conceptually flawed. It is difficult to believe that this veteran politician, one of the members of the Constituent Assembly of Bangladesh and drafters of the Constitution, has forgotten that the Parliament of Bangladesh is not sovereign. It was never so and it is not so now. Article 7 of the Constitution, by guaranteeing constitutional supremacy, makes the power of the Parliament subservient to the Constitution.
Some legal experts such as Khairul Haque, a former chief justice, has contended that vesting the power of removing judges in the hands of the Parliament is a practice followed in some other democracies such as Australia, India, Canada, South Africa, and the United Kingdom, and is not creating any issues in those countries. The observation is true but it ignores the difference in socio-political culture between those countries and Bangladesh. We must not forget that the laws do not operate in a vacuum and law's effectiveness depends not just on its mechanical form but also in the culture of the society in which it operates.
In view of the political realities of Bangladesh and because of the fragile nature of our democratic culture and institutions, this decision of the Ministry of Law, if implemented, would hang over the heads of judges like a sword of Damocles. In many cases, the government itself is a party in legal proceedings and a judge rendering a judgment unpalatable to the government in any sensitive matter may be harassed or even removed by the government.
As there has been significant controversy about the appointment and confirmation of judges of the Supreme Court, it is quite likely that judges appointed during the reign of a particular political party would feel some sort of insecurity about their tenures during another political party's regime.
The Supreme Judicial Council has, on occasions, been criticised by many apologists as being non-transparent and dysfunctional. If accountability of judges of the Supreme Court is a real issue to be taken care of by the government, then the structure and operation of the Supreme Judicial Council may be thoroughly re-examined and revised.
But in the prevalent sharply divisive and abrasive political culture of Bangladesh, vesting the power of impeachment of judges of the Supreme Court in the Parliament is bound to stir unwarranted controversy. At best, even if this decision is well intentioned, it is utterly unnecessary and would surely raise eyebrows about its motives and at worst, it may bring about undesirable consequences.
The writer is an Assistant Professor of Law, BRAC University.