A policy of hypocrisy

The government has been portraying its move to restore parliament's power to impeach Supreme Court judges on grounds of misconduct or incapacity as an effort to return to the original constitution of 1972.

But it has no plan to return to the 1972 constitution regarding empowering the SC to have effective control and supervision over the lower judiciary.

In the view of Law Minister Anisul Haque, the existing provisions on the lower courts are excellent and there is no need to change those. 

Such a policy may be termed hypocritical, and the reason behind it is clear. The government will lose control over the lower judiciary if the constitutional provisions are restored to their original form.

For this, it has paid no heed for the last four years to the SC's expectation of restoration of the provisions.

The Appellate Division of the SC, in its full judgment in the constitution's fifth amendment case, stressed the need for a restoration of the provisions for a meaningful separation of the judiciary from the executive.

"It is our earnest hope that articles 115 and 116 of the constitution will be restored to their original position by the parliament [by amending the constitution] as soon as possible," said the apex court.

The lower judiciary was officially separated from the executive branch on November 1, 2007 following the Appellate Division's directives in a case known as "Masdar Hossain's Case".

Laws were amended and new rules were made for that purpose as well. However, the constitution was not amended to ensure effective separation.

"Independence of the judiciary, which is one of the basic features of the constitution, will not be fully achieved unless the two articles are restored to their original position," the SC asserted.

The two articles deal with appointments to the lower courts, and control and discipline of the lower judiciary.

The original article 116 had empowered the SC to control the lower judiciary by controlling postings, promotions and granting of leave, and disciplining persons employed in the judicial service, and magistrates' exercising judicial functions.

The SC had also a major role to play regarding appointments to the lower judiciary as article 115 of the original 1972 constitution stipulated that district judges would be appointed by the president on the recommendation of the SC.

And all other civil judges and magistrates exercising judicial functions were supposed to be appointed by the president in accordance with the rules made by himself or herself in consultation with the Public Service Commission and the SC, according to the original article 115. 

But the fourth amendment to the constitution, passed in 1975, brought about drastic changes to articles 115 and 116, pushing the matter in the reverse direction.

The amendment vested the  power of control over the lower judiciary in the president, who was also empowered to make the appointments, in effect allowing the executive branch to control the lower judiciary.

The fourth amendment had also curtailed parliament's power to impeach SC judges on grounds of misconduct or incapacity and empowered the president to do it.

Thus after the fourth amendment, through which the country switched over to a presidential form of government from the parliamentary system, the president emerged as the all-powerful chief executive of the government.

Subsequently, the martial law regime led by General Ziaur Rahman in 1978 amended article 116 through a martial law regulation, making the provision that the SC would be consulted by the President to exercise the power to control and discipline the lower courts.

The regime also introduced the Supreme Judicial Council to impeach judges, curtailing the powers of the president.

The changes were ratified by the fifth amendment passed in 1979. The changes ceased to have effect with the nullification of the fifth amendment by the SC.

Interestingly, those provisions concerning the lower courts and SJC were revived through the constitution's 15th amendment in 2011 during the period of the AL-led government.  

After the 15th amendment to the constitution, the SC has had no role in the appointments to the lower level judiciary. The president has been empowered to make all appointments in accordance with rules made by the president.

The president has also been empowered to control and discipline the lower judiciary. He, however, consults with the SC.

The powers vested in the president are, however, exercised by the prime minister, though indirectly. The reason behind it is simple. Since the restoration of parliamentary democracy in 1991, the president has had to carry out all his functions on the advice of the prime minister, the exception being appointing the premier and the chief justice.

So, the president exercises powers regarding the lower judiciary only on the advice of the premier.

Now, the AL-led government plans to amend the constitution again to restore the parliament's power to impeach the SC judges, but no provision concerning the lower courts is discernible. 

Once the constitution amendment bill is passed, the SC will lose all powers.

In return, the SC may get nothing through the upcoming amendment to the constitution as there is no move to restore articles 115 and 116 to their original position.

Asked, the law minister last week claimed the existing provisions stipulated in the two articles were excellent and there was no need to change them.