An ill advised step | The Daily Star
12:00 AM, August 25, 2014 / LAST MODIFIED: 01:53 AM, March 08, 2015

An ill advised step

An ill advised step

DRIVEN by the primordial urge to defeat or get the better of their rivals and, once in government, to accumulate as much power as possible in their hands, political parties, more often than not, can't see past the end of their nose. And if there is a political history, legacy, or ideological construct readily available to suit the desire to perpetuate their hold on power, there will also never be a dearth of official ideologues to justify that fancy. Such ideologues are apt to pull the wool over the ruling party's eyes so that the latter sees only good and no wrong in whatever it does in its drive to concentrate all power in its hands.

Pointing to the dangers implicit in the government's move to empower the legislature to impeach  Supreme Court judges, many well-meaning jurists, constitutional and legal experts have advised the government against going for the constitutional amendment to that end. Unmoved, the cabinet has already approved the draft of the "The Constitution (16th amendment) Law, 2014" to restore what it said the parliament's authority to impeach the Supreme Court judges for misconduct or incapacity.  It is being said that once passed into law in the next parliamentary session, the apex judges will become accountable to the people, who according to Article 7 of the constitution, are the owners of all power of the Republic. What is more, through this amendment the history, which, the ruling Awami League (AL) thinks, was distorted by post-1975 rulers, will be corrected through restoration of the original spirit of the 1972's constitution. It all sounds so soothing to the ears! But what do some of the jurists and constitutional experts who made major contribution towards framing 1972's constriction think about the government move? Dr Kamal Hossain, for example, who headed the committee that framed 1972's constitution  in a recent interview to the media vehemently opposed the government decision saying that it was an attack on the judiciary and its independence. Similarly, barrister Amirul Islam, who was also a member of the committee that conceptualized and wrote 1972's constitution, viewed that if parliament gets the power to impeach judges that would not only curtail the judiciary's independence, but also 'destroy everything'. Here 'everything' perhaps stands for the fundamental ideals on which Bangladesh and its democracy hinge. But why can't these constitutional experts see eye to eye with the government in its present effort that ostensibly promises to restore the spirit of 1972's constitution? Shouldn't they be rather happy that the nation will get back the original constitution that they took part in making 42 years ago?  Seemingly, they are neither convinced of the incumbent government's intent, nor of its arguments in favour of the constitutional amendment. Evidently, they could not have failed to appreciate the transformation that the socio-political landscape of Bangladesh has gone through in the meanwhile rendering the particular provision (Section 96) of 1972's constitution redundant in the present context. Small wonder Barrister Amir-ul Islam even preferred the existing mechanism in the form of the Supreme Judicial Council to parliament to impeach Supreme Court judges.  If it is not pragmatism then what is that has led a veteran Awami Leaguer like him to support a constitutional provision that was introduced by the late president Ziaur Rahman through a martial law proclamation in 1978?  

Detractors of the government move could not also be unaware of the nature of the present legislature where the Article 70 of the constitution is hanging like the sword of Damocles over the head of the lawmakers to discourage them from engaging in any enlightened debate, let alone casting vote, against any motion moved by the ruling party. Neither is the party that likes to call itself opposition in parliament is in a position to effectively oppose any ruling party-backed motion. And the least said about the January 5 polls that went into electing the 10th Jatiya Sangsad and its lawmakers, the better. And to think that such lawmakers from the ruling party enjoys an absolute majority in parliament.

All powers of the state in the executive's hands, even if that government is an elected one, is not good for democracy. So, it is not simply a matter of whether parliament should have the authority to impeach Supreme Court judges or not. In fact, the issue at hand is far broader in scope than what it appears on the face of it. What will be left of the balance among the three pillars of the state—the executive, the legislature and the judiciary—if all powers flow only to one of the pillars, the executive? Unless we are talking about angels here, there is the serious risk of such power being grossly abused by the government of the day.  Even if one assumes that the incumbent government, or parliament for that matter, will not abuse the power, what guarantee is there that any future government won't do so?

There are valid reasons behind the doubts and fears expressed by legal and political experts over vesting parliament with the power to remove apex court judges. But who will stop the over enthusiasts in the party from goading the ruling party from taking a decision that is at best extremely ill advised?

The writer is Editor, Science & Life, The Daily Star.

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