Appointment issue ignored

The constitution has two specific provisions that ask the parliament to make laws for the appointment of a judge to the Supreme Court and also for the removal of a sitting judge by the House.

The first provision is now more than four decades old. One of them suggested making a law that would be very specific about who could be a judge of the SC in addition to the qualifications set in the constitution. Under the current mechanism, a citizen of Bangladesh who has been an advocate of the SC for not less than ten years or been in any judicial office for the same period is eligible to be appointed as a judge of the SC.

The other provision, which is merely around two years old, asks for a law that would define the mechanisms for the parliament to investigate allegations of misconduct or incapacity against an SC judge and to remove him.

The government has decided to act on the new one and the cabinet on Monday approved in principle a draft law specifying the procedure to remove a judge by the parliament. 

This law would also agree with the constitution that gave the parliament the power in 2014 to remove an SC judge on grounds of misconduct or incapacity.

On September 17, 2014, the House passed the 16th Constitutional Amendment that gave it the powers to remove SC judges. The amendment also wants the House to make a law that would specify how this would be done.

One thing is notable in the entire process. The cabinet on August 18, 2014 ignored the opinions of two former chief justices and some eminent jurists and approved the proposal to amend the constitution that gave the parliament the power to remove SC judges.

At the invitation of the parliamentary body for the 15th constitutional amendments on April 24, 2011, former chief justice Mustafa Kamal and justice Fazlul Karim, Attorney General Mahbubey Alam and ex-attorney general Mahmudul Islam strongly opposed, in front of the body, restoring the parliament's power to impeach judges.

They suggested keeping the then existing constitutional provision for the chief justice-led Supreme Judicial Council system, and said reforms could be made in the system, if needed.

This time, the government has sent to the chief justice a copy of the Supreme Court Judges (Investigation) Act-2016 recently. But it did not wait for the chief justice's opinion on it.

Moreover, the cabinet's approval to the draft law comes just 10 days before the High Court is set to deliver a verdict on May 5 on a writ petition that challenged the legality of giving the parliament the power to impeach an SC judge.

Once the law comes into effect, MPs can investigate allegation of misconduct or incapacity against an SC judge. If an allegation is found true, the House will hold a discussion and pass a resolution by two-thirds majority to remove the judge.

Empowering the parliament to remove SC judge has all along been a controversial issue. Those who are against the system have been saying that independence of judiciary will be at stake.

This law, however, will empower the parties representing the House more than the parliament due to Article 70 of the constitution.

The article 70 fetters the MPs in parliament. It imposes a tight rein on them. No MP can go against their party line or position on any issue in the House. They have no freedom to question the party's stance in parliament even if it is incorrect. They cannot vote against their party's decision.

Former chief justice ABM Khairul Haque, now the Law Commission chairman, has reflected on the stringent restrictions imposed by Article 70. When he was a High Court judge, justice Haque in the Anwar Hossain Manju versus Government of Bangladesh case verdict in 2006 observed that Article 70 made an MP "a prisoner of his party."

In defence of empowering the parliament to remove SC judges, the government has all along been citing the practices in US, UK, India, Canada and a few other countries.

But there is a fundamental difference between lawmakers in those countries and those in our country. In US, UK and Australia, the lawmakers are free to perform their functions in the parliament. No restriction like the one imposed by article 70 in our constitution exists in these countries. In India, there is some restriction on MPs, yet they do not blindly obey the party's decision because there is democratic practice in the parties.

The other significant aspect in all those countries is their focus on the appointment process of judges, not their removal. But our government never speaks about the mechanism for the judicial appointments in those countries.

Due to the effective mechanism for judicial appointments, parliaments in those countries do not need to exercise their authority to remove judges. 

For example, the UK parliament, the most powerful legislature in the world, is empowered by the Act of Settlement 1701 to remove judges of the High Court and above. But it has never removed any English judge in the past 300 years or so.

To maintain and strengthen judicial independence, the Judicial Appointment Commission was set up in 2006 with the responsibility for selecting candidates for judicial office in a transparent and accountable process. The 15 members of the commission are drawn from the judiciary, the legal profession, non-legally qualified judicial officers and the public. On receiving the proposal from the commission, the prime minister sends a recommendation to the Queen for the appointments.

The US president - the world's most powerful chief executive in the presidential form of government - cannot appoint the Supreme Court judges at his will. The presidential nominee's appointment to the Supreme Court must first be confirmed by the US Senate. The Senate has the power to reject or block the nomination. Moreover, the confirmation proceedings usually involve a lengthy review process in which the Senate Judiciary Committee is permitted to directly question the president's nominee.

The parliament of India has not impeached a single judge either of the Supreme Court or the High Court in over the last six and a half decades. One judge facing impeachment proceeding resigned before the parliament moved to dismiss him. The impeachment proceeding against that judge named Shri R Ramaswamy took place between 1991 and 1993. In the end, the inquiry committee found the judge guilty. In the Lok Sabha the Congress Party abstained from voting and so the motion could not be passed with the requisite majority.

The parliament in Canada has impeached only one higher court judge since 1867. Four other judges facing impeachment proceedings resigned to avoid dismissal. However, the government still continues to reform the judicial appointment system for avoiding controversy. About a decade ago, the appointment process was further modified to some extent to allow for greater parliamentary, provincial/territorial and public consultations. In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee. And the committee would report their findings to parliament. This led to the establishment of an ad hoc parliamentary committee.

Interestingly, all the successive governments in Bangladesh remained indifferent to the constitutional provision to enact a law prescribing other qualifications to become a judge of the highest legal body, let alone depend on a judicial commission to appoint judges. This present criteria give the government a lot of say in the appointment of judges and the successive governments' indifference to make the law shows that they are unwilling to lose their powers to appoint judges.