Parliamentary impeachment of senior judges amid powerful executive: A paradox?

RECENTLY the cabinet has decided to confer on Parliament the power of impeachment of judges of the Supreme Court (SC). The issue is of paramount importance in the context of good governance propelled by the constitutional principle of the separation of power.  

The constitution explicitly provides for an impartial and independent judiciary as one of its cornerstones and the guardian. In reality though, the judiciary has been subservient to the executive since independence. Under the original constitution 1972, parliament had the power to impeach SC judges for gross misconduct and physical or mental incapacity. Changes in the form of government from parliamentary to presidential and the advent of successive martial law regimes were able to gradually make ground in, and assert influence on, the judiciary. The judiciary was brought under the direct executive control by the 4th (1975) and 5th (1979) amendments. The latter established the Supreme Judicial Council to control the higher judiciary. The governments in power, civil and military, placed their political agenda in the highest judicial appointments, paving the way for politically motivated judicial appointments in the SC. These governments made rhetorical promises to separate the judiciary from the executive only to appease popular demand for an independent judiciary.

A dependent judiciary is politically expedient for the executive, which perpetrated many unconstitutional acts in the past with judicially endorsed immunity. It served the political interests of the ruling executive, rather than an independent judicial organ of the Republic, causing an extraordinary public confidence crisis in the judiciary. The rampant domination of the judiciary by the executive led to Masdar Hossain case, in which the SC required the immediate separation of the judiciary from the executive, which went unheeded by the executive in defiance of its mandatory constitutional obligation to implement the judgment. The higher judiciary was eventually separated in 2007 by the then interim government. The 5th amendment was subsequently held unconstitutional by the SC but the Supreme Judicial Council survived. The incumbent executive has decided to abolish the Supreme Judicial Council and restore the 1972 constitutional power of Parliament to impeach SC judges.

Judicial independence necessary for the just exercise of judicial power is not unfettered but contingent on constitutional limits warranting judicial accountability. Judicial independence and accountability arise from the fact that all power of the Republic is vested in the people and under the supremacy of the constitution (s7), which judges are bound by their oath to respect and uphold (s148). Judges are thus accountable to the people in exercising judicial power. Judges are appointed, not popularly elected. Their enormous judicial power has placed them in a vulnerable position, susceptible to power abuses and judicial dictatorship. Exercising judicial power beyond constitutional limits can have far reaching consequences for the reserved domains of the executive and legislature, creating legitimate public concern. The constitution provides no specific regime for judicial accountability to the people. It is this public accountability of the judiciary that brings parliament, being the elected and representative organ of the people, to have a constitutionally mandated impeachment power.  

It is a standard practice in parliamentary democracies, like the UK, to vesting judicial impeachment power in parliament being an elected and representative body of the people to whom judges are accountable. In the Bangladesh context, merely arguing whether parliament can have this power appears to be a simplistic route to a complex journey that conveniently ignores two pressing matters: whether parliament fulfils the standard test of a representative democratic institution and whether it is capable of exercising this power in the best interest of the Republic.  Addressing these matters would require to considering the following.

1. The political circumstances surrounding the national election of 5 January 2014 militate against any claim by the current parliament of its popular representative identity. The election was marked by low voter turnouts amid rampant violence and boycotts by then main opposition parties alliance, resulting in majority (154) MPs elected unopposed and the remaining (146) MPs won with historically low vote cast. The litmus test of parliamentary legitimacy is its popular mandate expressed through a free and fair election. Doubters at home and abroad question the status of MPs as the democratically elected representative of their constituent people, incapable of overseeing the public accountability of the judiciary.

2. An effective and vibrant parliamentary opposition to keep the government on the right track is indispensible in any parliamentary government, which is historically non-existent in Bangladesh. Political parties in government treated their opposition as political enemy rather than parliamentary opposition, which in retaliation pursued chronic boycotts and walkouts. Current parliament has a tailored opposition manufactured by the political party in power in response to election-boycott by main opposition parties. The chairs of nearly all parliamentary committees have been from the party in power, which violates the parliamentary convention of heading these committees by the opposition. In this polarised environment, the executive gains ample opportunity to dictate legislative policy decisions on critical public interests like judicial impeachment without adequate parliamentary inputs.

3. The ongoing process of democratisation of parliamentary government since 1991 is not matched by the democratisation of political parties, thereby creating a political climate where party leaders can be de facto autocrats and are not amenable to public scrutiny of their actions in parliament. Both government and opposition MPs are inclined to protect the unassailable status of their leaders and enhance the stature of the executive at the cost of parliamentary oversight. Given the trend of no voluntary leadership retirement and no constitutionally fixed parliamentary terms, government MPs pursuing their conscience contrary to their party leader, who is also the head of the executive, will do so at their own peril.  

4. Any MP voting against his/her parliamentary party or being absent in parliament or abstain in voting will lose his/her seat.  But any independent MP joining a political party is deemed nominated by that political party (s70). This concentration and centralisation of power in the hands of the party leader, if happens to be the head of the executive, can control the tune of parliament, albeit including judicial impeachment.

5. Under the 1972 constitution, parliament had the impeachment power by 2/3rd majority (s96) and the lower judiciary was under the administration of the SC (s116), which was brought under the control of the executive by the martial law order No 4 in 1978. The present move for the restoration of original constitution s96 does not include the restoration of original s116. This partial restoration would allow the executive not only to bring under its control the higher judiciary that has been separated from its control since 2007 but also resuscitate full executive control over the entire judiciary, upper and lower alike.

6. Ministerial responsibility, individual and collective, is the hallmark of a parliamentary government, which is almost non-existent in Bangladesh. The ministerial executive is hardly accountable to parliament, increasingly becoming intolerant of public criticisms, and using new parliamentary acts to defend many indefensible ministerial conducts. The amendment of the Anti Corruption Commission (ACC) Act 2004 (s32A) curtails ACC power to sue public officials including ministers and the National Broadcast Policy 2014 limits press freedom.

Historically, adherence to the due process of law and justice in the performance of executive functions is religiously absent in Bangladesh. There is a great deal of executive interest at stake in the separation of the judiciary. The domineering culture of executive control over the constitutional imperative of the separation of power frustrated the creation of an independent judiciary. The change of form of government since 1991 is yet to change the entrenched political mindset of executive domination, which can shrug-off with impunity norms of democratic and responsible government. If the higher judiciary functions under the arms of the executive, the preference of judges to judicial restraint over activism may not be gainsaid in view of their vulnerability to judicial impeachment by a parliament devoid of any meaningful opposition and dominated by an all-powerful executive. The higher judiciary may generally abdicate its judicial impartiality and independence in favour of a pliant role, which if eventuates, will be paradoxical to its guardianship of the constitution and hamstring the progressive development of constitutional good governance.

Arguing that the judicial impeachment power of parliament is common in other parliamentary government does not answer whether Bangladesh parliament can make impeachment decisions apolitically and judiciously at arm's length, free from the arms of the executive. The permeating executive control over parliament and its unwillingness to relinquish influence on the judiciary is still being felt. Instances such as the recently imposed limitation on ACC litigation power and press freedom, arbitrary withdrawal of cases by executive order, sudden transfer of the trial judge immediately prior to the judgment day in the General Manzoor killing case, and mounting list of pending ICT trial and appeal judgments stand not to the wonderment of those apologists who feel the omnipresence of invisible executive hand in legislative and judicial decision-making.

The pressing challenge for parliament is to put its acts together prior to acquiring judicial impeachment power and contain the executive within its constitutional bounds to salvage the marginalised separation of power. So long as the vast executive empire remains politically uncontrollable and legally unamenable to accountability, empowering parliament with judicial impeachment would in effect empower an executive, which is already all-powerful touching the boundary of autocracy with democratic outfit.

THE WRITER IS PROFESSOR OF LAW AT MACQUARIE UNIVERSITY, SYDNEY, AUSTRALIA.