The Jatiya Sangsad is finally set to get the authority to impeach the Supreme Court judges, 39 years after losing the power under a martial law order.
The council of ministers yesterday gave its nod to reinstate article 96 of the 1972 constitution, revising the existing one which was amended through the fourth and the fifth amendments to the constitution in 1975 and 1978.
Prime Minister Sheikh Hasina chaired the cabinet meeting that approved the draft of the “Constitution (16th Amendment) Act 2014,” allowing the restoration of parliament’s authority to impeach Supreme Court judges.
The final approval was given on condition of vetting of the Law Ministry. The draft bill was prepared and tabled in the cabinet by the same ministry.
“The draft will be tabled in the next parliament session set to begin on September 1,” Law Minister Anisul Huq told reporters. “We are expecting that it will be passed during this session.
“If parliament passes the 16th amendment bill, the provision of forming Supreme Judicial Council to remove Supreme Court judges will be erased from the constitution. Parliament, as a forum of elected public representatives, will get the authority to remove the judges with the consent of the President.”
Cabinet Secretary M Musharraf Hossain Bhuiyan after the meeting told journalists: “According to the amendment, article 96 of the 1972 constitution will be revived allowing the parliament instead of the Supreme Judicial Council to impeach Supreme Court judges for their misconduct.”
According to article 96(2) of the draft amendment, parliament would not be able to remove or impeach a judge of the Supreme Court for his or her proven misconduct or inability without a minimum two-thirds majority vote of parliament and the consent of the president.
“The procedure of bringing an allegation, investigation, and proving and removing the Supreme Court judges will be determined by law. The parliament will enact a law to regulate the process,” article 96(3) reads.
However, the judges will have the authority to resign from their office by signing and submitting resignation letters to the president.
According to the existing article 96(2) of the charter, a judge shall not be removed from his or her office except in accordance with the following provisions of this article.
The article 96(3) says there shall be a Supreme Judicial Council, which shall consist of the chief justice of Bangladesh, and the two next senior Judges.
The article 96(4) elaborated the formation, terms and references and jurisdictions of the council.
The law minister told reporters after the cabinet meeting that his ministry would now complete the procedure to placing the amendment proposal as a bill in the upcoming session of parliament.
Responding to a query, Anisul said: “The independence of the judiciary will not be hampered because of the amendment. The Supreme Court judges will be able to discharge their regular duties independently.”
He further said: “The government will also introduce a new Act titled ‘Impeachment Act’ within three months of the approval of parliament. It will also be passed in parliament like other laws after getting approval of the cabinet.”
The cabinet secretary said the draft was prepared following the constitutions and provisions of several developed and democratic countries that have parliamentary or presidential form of the government. The countries are the USA, Australia, Germany, the UK, India and Sri Lanka.
Of those, the USA and Sri Lanka are ruled under presidential form of government. Thus, their parliaments have the authority to remove the judges.
Citing several provisions of the existing constitution of Bangladesh, Musharraf said: “Parliament is now having the authority to remove the president and the speaker. It also has the authority to bring ‘no confidence motion’ against the prime minister to remove him or her from office.
“The cabinet considers that authority of removing the judges must come under parliament as the judges may have scope to be convinced while investigating allegations against their long-time colleagues. The new process of investigating allegations will be determined by a new law.”
In reaction to the approval of the bill, the BNP yesterday alleged that the government was aiming to establish a one-party parliamentary system through this amendment to the constitution.
Meanwhile, former chief justice and Chairman of Law Commission ABM Khairul Haque appreciated the move of the government to amend the constitution empowering parliament to impeach the judges.
Terming the initiative “democratic,” he said: “The impeachment power will not curtail the independence of the judiciary.
Justice Khairul suggested that the judges must be given scope to defend themselves if any allegation of misconduct or inability is proved against them.
The 15th amendment to the constitution was passed in parliament on June 30, 2011 bringing 55 changes in the charter.