News Analysis: Anger, not totally righteous
MPs in the Parliament set an unusual example on Sunday by launching a blistering attack on the Supreme Court for scrapping the 16th constitutional Amendment that had empowered the House to remove SC judges on grounds of misconduct and incapacity.
Since 2010, the SC cancelled three more constitutional amendments--5th, 7th and 13th. But in those cases, the SC's jurisdiction was never questioned and it was not made a subject to attack in the Parliament.
The SC has been widely lauded for its verdict scrapping the 5th Amendment that ratified and validated all changes in the constitution and acts done by the first martial law regime. The Awami League MPs called the verdict a “landmark”.
They had also welcomed the SC verdict canceling the 7th Amendment that had ratified and validated all acts carried out by the second martial law regime.
The past AL-led government in 2011 used the apex court verdict nullifying the 13th Amendment to abolish the election-time non-partisan caretaker government system which was introduced in 1996 in a volatile political situation.
The 16th amendment was brought to the constitution by the AL government in 2014. The MPs had launched a similar attack on the judiciary when the HC declared illegal the amendment in May last year and did it again last week when the SC upheld the HC verdict.
Joining the attack on the SC on Sunday, some MPs even termed the apex court's verdict on the 16th Amendment "unconstitutional" and against "the spirit of the original constitution of 1972".
Some even claimed that there was a "conspiracy" behind the SC verdict.
But it seems that only half the story is being told on how the Parliament lost the authority to remove SC judges.
Here are some facts that will jog the memory of all.
The original constitution of 1972 had given the Parliament the power to remove SC judges. But the House had enjoyed the power only for two years. In January 1975 it was the Awami League led Parliament and the government that cut the Parliament's power. According to the amendment that introduced BKSAL, Instead of the Parliament, the president alone was empowered with sweeping authority including removal of Supreme Court judges.
The president had that the power for three years until 1978.
After seizing power, Gen Ziaur Rahman abolished the president's authority and introduced the chief justice-led Supreme Judicial Council (SJC) by amending the constitution through a martial law order in 1978.
All the constitutional changes made to the constitution by the martial law regime were ratified by the constitutional 5th Amendment in 1979 by the then BNP government led by Gen Zia.
The 5th Amendment was scrapped by the SC in 2010. It however condoned the introduction of the Supreme Judicial Council (SJC) and said the tenure of the condonation will expire in December 2011.
The AL-led government in 2011 however decided to retain the SJC system in the constitution by the 15th Amendment in 2011. This means the SJC provision introduced by the martial law regime was retained in the constitution by the 15th Amendment introduced by the AL government.
But the AL government changed its mind after the January 5, 2014 one-sided election. Through the 16th Amendment, it scrapped the SCJ system and restored the Parliament's power to remove SC judges, claiming that the SJC provision undermined the people's power.
Some legal experts now argue that the SJC has been automatically restored in the constitution after cancellation of the 16th Amendment. If that were so, the provision which was introduced by the AL government in 2011 has been restored, not the one introduced by the martial law regime.
Joining the verbal attack on the apex court, some MPs made efforts to give an impression that the Parliament in a democratic country must have the power to remove SC judges.
But a study published by the Commonwealth Secretariat in 2015 tells a different story. The study surveyed the procedure of appointment of judges and their removal in 48 Commonwealth countries. According to the study, parliaments in only 16 countries have the power to remove the apex court judges. Parliaments in 32 countries do not enjoy the authority as there are different procedures there.
Moreover, UK, India, South Africa and some of the countries that had empowered their parliaments to remove judges have long ago introduced judicial commission or some other system free from the influence of government for the judicial appointments.
The above examples do not work in our country. Our Parliament is yet to enact a law in line with a constitutional provision detailing qualifications of people willing to be SC judges in the last four decades.
So far none of the previous parliaments nor the MPs of the current one speak about the urgent need to make the crucial law to meet the constitutional obligation regarding appointment of judges.
They also seem to have forgotten to speak about restrictions imposed on them by Article 70 of the constitution preventing them from acting according to their conscience play their role independently.
Moreover, any parliament in any other country that enjoys the power to remove apex court judges do not have articles similar to our Article 70 that imposes such stringent restrictions on its members preventing them from functioning independently. Under Article 70, our elected MPs are obliged to follow the party whip and toe the party line always and can never vote according to their conscience. According to the latest SC judgment, the lack of independence of the MPs contributed to the cancellation of the 16th Amendment.
As we saw in the Parliament last Sunday, every MP followed the prescribed line. Not a single one had a divergent view. The party line prevailed- this time across the aisle.
So much for free discussion in the Parliament.