LAW Minister Anisul Hoque has set a rare instance in the parliamentary history of Bangladesh by bringing a few changes in the constitutional amendment bill on the floor of parliament while placing it on Sunday evening. One may simply argue that the law minister should be appreciated for bringing the changes to correct the errors in the bill which sought to restore the parliament's authority to impeach a Supreme Court judge on grounds of misbehaviour and incapacity. But the issues are not so simple. This is a constitutional amendment bill, not a bill for making an ordinary legislation. Moreover, the contents of the bill are highly sensitive and the move has already triggered widespread criticism. So the hurried changes in the bill have also exposed the ministry's lack of attention to details regarding facts in properly drafting the bill. If it were not so, then one may surmise that the law ministry in a planned way has come up with an inaccurate statement of facts in the preamble of the bill in regard to the scrapping of the parliament's power to impeach SC judges and to restore it by reviving Article 96 of the 1972 Constitution.
The original bill distributed among MPs on Thursday said that the authority to impeach an SC judge on grounds of misconduct or incapacity was, “conferred to the Supreme Judicial Council instead of the Parliament substituting Article 96 of the Constitution enacted in 1972, by the military ruler through unconstitutional means of martial law”. Therefore, "it is expedient and necessary to amend further the Constitution for revival of Article 96 of the Constitution enacted in 1972", claimed the preamble. By making the claim, the law minister has squarely put the blame on Gen Ziaur Rahman for curtailing the parliament's power through introduction of the Supreme Judicial Council (SJC) by amending the Constitution in 1978 through martial law order. This is simply not the fact. The law minister however opted for omitting the phrases "instead of the Parliament" from the preamble. He also omitted almost the same phrases from his statement attached to the copies of the bill. But the way the preamble and his statement were written still present inaccurate facts about the history of the abolishing the parliament's power and introduction of the SJC. The preamble still provides incorrect facts regarding the revival of Article 96 of the 1972 Constitution.
Let's examine how the law ministry obscured and misrepresented the facts. Both the preamble and the minister's statement mention the fact about the introduction of the SJC by the martial law regime, terming it as being against Article 7 of the Constitution. But the bill concealed the crucial fact that the SJC, introduced by the military ruler, does no more exist. The present constitutional provision for the SJC was introduced by the Awami League-led government through the Constitution's 15th amendment in 2011. The AL-led government did it even after a SC verdict that had declared illegal and void the constitutional amendment made by the martial law regime for introduction of the SJC in 1978. The SC in 2010 upheld the High Court verdict delivered in 2005 declaring the Fifth Amendment illegal and void. It however condoned the provision for the SJC until December 2012. Before expiry of the deadline, the AL-led government introduced the present constitution provision for the SJC.
Who had curtailed the parliament's power to impeach SC judges? About four decades ago, the then AL government had curtailed the parliament's power through the Constitutional Fourth Amendment in January 1975. The Fourth Amendment, which introduced the presidential form of government, had empowered the president to impeach a SC judge at his will. Later, in 1978, Gen Zia through the martial law order curtailed the president's power to impeach judges and introduced the chief justice-led SJC. There was no reference to the Fourth Amendment in neither the preamble of the latest bill nor in the minister's statement.
The preamble's claim regarding the revival of Article 96 of the 1972 Constitution is also misleading. It is not possible to revive Article 96 through the proposed changes in the constitution. In 1972, the retirement age of a SC judge was 62 years which was increased to 67 through an amendment in 2004. The constitutional amendment bill proposes to retain the increased retirement age.
In a country with functional democracy none is allowed to misinform the parliament. Such incident is considered as deceiving the nation. Making such a statement deliberately may be treated as breach of privilege and contempt of parliament. Two eminent Indian parliamentary affairs experts, M.N. Kaul and S.L. Shakdher, in their authoritative book titled "Practice and Procedure of Parliament" say a breach of privilege or contempt of parliament can arise only when an MP or a minister makes a false statement or an incorrect statement willfully, deliberately and knowingly.
The situation is more stringent in the UK, the birthplace of the Westminster model of parliamentary democracy. The ministerial code provides that ministers must give accurate and truthful information to parliament…ministers who knowingly mislead the parliament will be expected to offer their resignation to the prime minister.
Our ministers and MPs are fortunate. They enjoy unqualified freedom to provide the house with inaccurate information. The constitutional amendment bill has become the latest example of that culture. And nobody is held liable for doing so. This also raises a crucial question: if the process for restoration of the parliament's authority is faulted for misleading the House by distorting and concealing facts, what will happen when the occasion will arise to exercise the power to impeach a SC judge?
The writer is Senior Reporter, The Daily Star.