Misleading preamble

The preamble to the bill seeking to restore parliament's authority to impeach Supreme Court judges claims that the constitutional amendment is necessary for the revival of Article 96 of the country's charter adopted in 1972.

But it is not possible to get back Article 96 as it was in the original charter.

In 1972, the retirement age of an SC judge was 62 years, which was increased to 67 through an amendment in 2004. Placed in parliament on Sunday, the bill proposes to retain the increased retirement age.

The law minister's scripted statement attached to the copies of the bill too claimed that the bill had been placed to restore Article 96 of the 1972 constitution.

The bill also proposed a crucial change in regard to the enactment of a law to regulate the procedure and for investigation of the misbehaviour or incapacity of a judge.

Enactment of the law was made mandatory by using the words "parliament shall by law regulate…"

But the 1972 constitution had not used the word "shall". It rather said parliament “may by law regulate…." and thus put the matter under the consideration of the House.

Asked for his opinion, an ex-joint secretary of the law ministry, who is also an expert in drafting laws, said the mistakes were made due to inefficiency in drafting the bill. If they were not corrected, the bill could be challenged in court.

According to Jurist Shahdeen Malik, this type of inaccuracy was unpardonable. It might also amount to fraud against the nation, he told The Daily Star yesterday.

On Sunday, the law minister while placing the bill brought a few changes in it by omitting some words from the preamble and in his statement.

The original bill said 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”.  

The Supreme Judicial Council was introduced in 1978 during the military rule of Major Gen Ziaur Rahman, who was then chief martial law administrator in addition to being president.

While placing the bill, the minister omitted the phrase "instead of the Parliament".

The bill also did not say anything about the fourth amendment to the constitution through which the president was empowered to impeach SC judges through curtailing parliament's powers.