A plea goes in vain
Ignoring the opinions of many eminent jurists, the cabinet yesterday approved a proposal on amending the constitution to restore parliament's authority to impeach Supreme Court judges on grounds of misconduct or incapacity.
The existing constitutional provision for the chief justice-led Supreme Judicial Council (SJC) will cease to exist once the constitution amendment bill is passed in the upcoming parliament session beginning on September 1.
The latest move marks the Sheikh Hasina-led government's change of stance on the SJC within a span of three years.
Her government retained the SJC system through the 15th amendment to the charter in June 2011.
As part of a process to bring about massive changes in the constitution, the government had formed a parliamentary body three years ago, and asked it to come up with recommendations for amendments to the charter.
At the invitation of the parliamentary body, three former chief justices and some eminent jurists sat with it on April 24, 2011 and gave their opinions.
Justice Mustafa Kamal and Justice Fazlul Karim, two former chief justices, Attorney General Mahbubey Alam and ex-attorney general Mahmudul Islam strongly opposed restoring parliament's power to impeach judges.
They suggested keeping the SJC system, and said reforms could be made in the system, if needed.
Both Mahbubey Alam and Mahmudul Islam informed the parliamentary body about the anxiety and fear of Supreme Court judges over the idea of restoring parliament's power to impeach judges, according to the proceedings of the meeting.
"My friends and juniors, who are now serving as judges, have already expressed their anxiety over it, and many of them are in a state of panic," Mahbubey Alam told the parliamentary body.
"If we go back to the previous provision [on impeachment of judges], then I will say, independence of the judiciary will be at stake," feared Mahmudul.
Law Minister Anisul Haq, however, claimed that the proposed amendment would not affect the independence of the judiciary.
"Parliament should have the power to ensure accountability and transparency of the judiciary," he said.
Justice ABM Khairul Haque, chairman of the Bangladesh Law Commission and a former chief justice, also spoke in favour of the proposed constitutional amendment.
"There is no reason for Supreme Court judges to panic if parliament gets the authority…" Justice Haque said at a press briefing at his office hours after the cabinet approved the proposal.
Interestingly, when Justice Khairul was a High Court judge in 2005, he declared the fifth amendment to the constitution illegal and void, but condoned the introduction of the SJC.
In its report to the parliamentary standing committee on the law ministry in June, the law commission recommended restoring parliament's powers.
"Parliament represents people. So, all people, including judges, should be accountable to parliament," he argued.
Talking to reporters after the cabinet meeting, Cabinet Secretary M Musharraf Hossain Bhuiyan said the law ministry's proposal mentioned that the existing SJC system was in conflict with Article 7 of the constitution, which says all power of the state belongs to the people.
He said the 1972 constitution had given this power to parliament. But the power was transferred to the SJC by an amendment to the constitution through a martial law proclamation during the rule of Gen Ziaur Rahman in 1978.
The secretary, however, skirted around the fact that it was the then AL-led government that had curtailed parliament's power to impeach judges in early 1975 through the fourth amendment to the constitution. At the time, the president was given the authority to impeach judges.
Gen Zia curtailed the president's powers and introduced the SJC, which was ratified and validated by the fifth amendment to the constitution in 1979.
In February 2010, the Supreme Court upheld the 2005 HC verdict declaring the fifth amendment illegal and void, and said the SJC system would be valid till December 31, 2011.
Around six months before the provision on the SJC was to expire, the AL-led government included it in the 15th amendment to the constitution, allowing the SJC to continue.
According to the provision, the SJC comprising the chief justice and two senior judges of the Appellate Division investigates allegations of misconduct against any SC judge, and makes necessary recommendations to the president for the next course of action.
In defence of scrapping the provision, the law minister told the cabinet yesterday that parliaments in India, New Zealand, Germany, Australia, South Africa, Canada and the US had the power to impeach judges of the apex court.
In a statement attached to the amendment proposal, the law ministry said parliament's authority to impeach judges should be restored as part of the process of a return to the original constitution of 1972.
According to the proposal, parliament could impeach an SC judge on grounds of misconduct or incapacity by passing a resolution with at least a two-thirds majority. The president will then issue an order to this effect.
By enacting a law, parliament may regulate the impeachment procedure and investigation into the misconduct and incapacity of a judge, it said.
The law minister told reporters that the 16th constitution amendment bill would be placed in the upcoming parliament session, and a law would be enacted on the impeachment process within three months of the constitution being amended.
At yesterday's cabinet meeting, Commerce Minister Tofail Ahmed referred to Dr Kamal Hossain's comment that restoring parliament's power to impeach judges was a very serious issue, and the government should take experts' opinions before deciding on it, said a meeting source.
Posing a question why the eminent jurist made such comment, Tofail said the provision was first included in the 1972 constitution, and Dr Kamal Hossain was the architect of that constitution, according to the source present at the meeting chaired by the prime minister.
Taking part in discussion, Fisheries and Livestock Minister Saidul Haque said this provision was very important and time befitting, and the government should have restored it long ago.
With the scrapping of the SJC system, parliament will have the power to impeach those holding constitutional posts, such as chief election commissioner and election commissioners, public service commission chairman and its members and comptroller and auditor general.
Currently, parliament enjoys the authority to impeach the president, the speaker and the deputy speaker. It can also dissolve the cabinet by passing a no-confidence motion.