“Attempting to reform law is somewhat like making a sheet of corrugated irons flat with a hammer.” The government’s move for the transformation of judges’ impeachment law reminds me of this catchy metaphor coined by the Indian legal giant VR Krishna Iyer, a former Indian chief justice. There will be talks, criticisms and upsets. But transformation is always challenging and daunting. The issue is whether we are ready to take the good things to design our nation’s destiny.
Therefore, the moot question is: if the parliament gets the power of judges’ impeachment, will that undermine the independence of the judiciary? For me, whatever mechanism we do fashion, the goal should be to develop a good state system under which every organ will be placed at the service of the people. This is what I call “law at people’s service.”
It is settled that judges cannot function under a condition where they suffer from insecurity of tenure and feel the presence of a guillotine over their head in the event of a case otherwise adjudicated upon. If either of the twin constitutional pillars of judicial independence: security of tenure and conditions of service is eroded, in time, society will have to pay an awful price, says Australian Chief Justice Sir Gerard Bernnan. For this, any removal provision should have certain basic safeguards. Keeping this truth in mind, I will examine some of the issues that recently revolve around our state wheels.
As widely admitted, the Supreme Judicial Council (SJC) was almost dysfunctional, the need change in the system was being well felt. The government has taken a move to introduce the parliamentary intervention system in the impeachment process of the judges. This system is not unheard of, rather practised in different jurisdictions. However, the migration of that constitutional idea is not in itself a boon for our purpose. The issue is what kind of safeguards we will be able to provide to make the system more native, sound and efficient.
In the first place, the grounds of impeachment should be very rigid and limited. The practice throughout the Commonwealth countries shows that grounds of removal are largely confined to two: misconduct and incapacity. The 1972 provision is very specific in this regard. It suggests that judges are irremovable except on the ground of “proved” “misbehaviour” or “incapacity.”
Thus, it not only makes the ground specific, but also stringent through the use of the word “proved.” The use of this qualifier is significant to say the least. For, the arrangement under fourth amendment was perilous as it conferred unfettered power to the president of defining the term “misbehaviour” or “incapacity.” There was, of course, the opportunity of self-defence. However, any judge’s removal by Bangabandhu under this clause is unheard of. He was well rewarded when his Chief Justice ASM Sayem endorsed the martial law and took the taste of power after his tragic assassination.
Subsequently, the SJC system under the fifth amendment tailored by General Zia, also an offspring of General Ayub’s concept, kept the word “incapacity” intact, but replaced the word “misbehaviour” by “gross misconduct.” However, mere use of the word “gross” does not make an offence “gross” unless it is proved beyond all reasonable doubt and the body in charge of determining that is not allowed to function independently. There are many instances where judges were simply ousted from the office under martial law dispensation keeping the SJC inert. Justice Subhan’s removal by General Ershad was nothing but one example as such. Therefore, no device is devoid of political overtones.
Secondly, the procedural safeguard is also significant. There should be several hurdles for this. A motion should only move if it receives endorsement of a minimum number of lawmakers, say fifty. Then it should go to the second round, ie, adopting a resolution. In the meantime, the investigation body should have its report in compliance with the principles of natural justice.
If the report is positive and a resolution looms large, the accused judge must be provided an opportunity of being heard. If then, the impeachment resolution is passed by two-third members of parliament, the president will remove the judge from the office. The 1972 provision (proposed 16th Amendment) has the safeguard of two-third majority only. The other safeguards or the like are to be ensured by the proposed law. Our bet should lie there.
Thirdly, an important obstacle of the parliamentary system of impeachment is the embargo of floor crossing law under Article 70. Article 70 is a stigma for our constitution. It is feared that if a politically motivated motion is brought before the parliament by the ruling party, the members will not oppose it due to the fear of losing their membership. Therefore, an important consideration of the 16th amendment may be to make Article 70 non-applicable in case of judges’ impeachment motion. This sole step could have appeared as a great check on government’s unprincipled move. Unfortunately, that is very unlikely to happen.
Judge’s impeachment cases are not a regular phenomenon. If the 16th amendment and its enabling laws ensure the above safeguards substantively, if not entirely, it may appear as a glorious addition to our constitutional fabric.
Hence, the idea of the new system is not bad per se. I do not wish to travel beyond our native jurisprudence to justify the claim. This is a question of belief and trust. To lose trust upon the parliament is to lose trust upon ourselves. In that case we really have to seriously think about whether we are worthy of a parliamentary system at all. To term the conferment of impeachment power with all its safeguard as making the so called “rubber” parliament boss of the judiciary, is nothing but a fearful exaggeration.
In a curious way, the new system may promote judicial integrity and competency. The system may increase the image of the office being almost irremovable except the said two proved grounds by the parliament. This would ensure the balance of powers and save the judiciary from bearing the ignominy of dealing with its own allegations by itself.
I recall the views of two celebrated legal minds of Bangladesh. Mustafa Kamal CJ in his 1994 lecture in the Dhaka University appreciates both the methods of judges’ removal. He, however, indicates his weakness towards SJC system being more in line with the separation of powers theory. To him under the SJC system the grounds of removal are on a more “sophisticated plane” and judges are saved from the ignominy of “public exposure in a popular forum.”
This view is contestable because absolute separation is neither possible nor desirable and it is always prudent to have some sort of balance between the organs of the state. However, the gist of Justice Kamal’s argument does not deny efficacy of the parliamentary intervention system.
Former Chief Justice Khairul Haque, on the other hand, saves the SJC system in the Fifth Amendment case, though he declares almost all other changes of that amendment unconstitutional. Interestingly, as media report suggests, as the Chairman of the Law Commission he has altered his views.
The Commission recommends going for the parliamentary impeachment mechanism. You can always interpret one’s mind according to your whim, but role of a judge and law reformer succinctly differs.
Thus, we see that two of our best chief justices, in principle, do not oppose the system. Many commentators sense the move as a response to parliament’s alleged conflict with the higher judiciary. It may deteriorate further, they apprehend. Our judiciary is vested with the great weapon of judicial review. They will always be able to scrutinise the wisdom of a good law and the vice of a bad law. A good native constitutional jurisprudence may evolve amidst this trial and error. This may also crystallise the grey area of judiciary’s public accountability.
Opposite school of political thought mainly expresses their concern about the credibility of the members of the 1oth parliament. These MPs do not really represent the people, as they are the product of a controversial election, they claim.
The issue, in general, is a question of public confidence. The paradox is: we did not warmly accept the 15th amendment restoring the four national principles which are the product of a strong parliament. So what do we want actually? Do we really know what we want?
Faith, hope and promise are the tenets of our national record. It is good to see that we haven’t lost faith on our judiciary. Let us not lose hope on the promise of our parliament. A lame duck can have good flesh, but it cannot go forward in times of necessity.