Senior lawyers and constitution experts have expressed opinions against the government move to authorise parliament to impeach Supreme Court judges for misconduct and violating the constitution.
Dr Kamal Hossain, head of the committee that framed the country’s constitution in 1972 and Amir-Ul Islam, another member of the committee, have vehemently opposed the cabinet decision to amend the constitution to restore article 96 of the original constitution.
The original article 96 empowered the legislature to remove judges with two-third majority in the assembly.
However, former Supreme Court Justice Syed Amirul Islam talked in favour of allowing parliament to impeach judges. He said if the legislature had the authority to remove the president, then why not judges.
Dr Kamal said: “I do not support this move at this moment. This move has created fear among people. I consider it an attack on the judiciary, and it will hurt the independence of the justice system, which is a must for an effective democracy.
“We have seen in the past how the judiciary had been fragmented during Ershad’s rule; how the chief justice was shown the door,” the veteran lawyer said.
He said the lawyers had to fight for a long time to establish the independence of the judiciary. “In 1972, we had the national unity that led us to empower parliament to impeach the judges. That scenario does not exist any more. Now, the situation is reversed.”
Barrister Amir-ul Islam told the Dhaka Tribune that empowering the legislature to impeach judges would “destroy” everything.
“Those who have suggested that the government make such a decision are not its friends. This will not only curtail the independence of the judiciary, but also destroy everything,” he said.
He also said the present mechanism for impeaching judges, that is the Supreme Judicial Council, was better than impeachment by parliament. The lawyer said the formation of the Supreme Judicial Council was in the hands of the executive as the President could constitute the council.
“In 1972, we empowered the legislature to impeach judges, keeping in mind that we would appoint judges in a way that would not warrant the removal of judges for misconduct and violation of the constitution,” said Barrister Amir.
He also said the UK and the Indian legislatures could impeach the judges. “But they have not impeached any judge.”
Through a military proclamation, Maj Gen Ziaur Rahman, who usurped state power in 1975, curtailed parliament’s authority to impeach judges.
Any change to the constitution must be made through a two-third majority vote in the assembly.
Ziaur Rahman amended the charter with a new mechanism styled Supreme Judicial Council headed by the Chief Justice (ex officio). Two senior judges of the apex court would be included in the three-member body. That provision still remains.
In 2011, the Awami League brought the 15th amendment to the constitution to restore the original 1972 constitution, in line with court directives that declared Ziaur Rahman’s amendments illegal and void. But the judiciary strongly opposed the proposal for authorising the legislature to impeach judges.
The government accepted their demand, keeping the Supreme Judicial Council unchanged.
Justice Syed Amirul Islam told a private TV channel that all developed countries had the constitutional provision to impeach the judges.
“The president appoints the judges. The legislature can impeach the president. If that is so, why can the legislature not impeach the judges?” he asked.
He said the judges must be removed by a two-third majority in the House.
“When allegations come against a judge, the speaker of parliament should form a five-member probe body. The speaker should head the probe committee with the inclusion of two judges – one from the Supreme Court and the other from the Appellate Division,” he clarified.
“If the allegations were true, the speaker should then place the impeachment motion through the committee,” he said.
Syed Amirul also said the alleged must get the right to defend themselves in the legislature.
Prof Nizam Uddin Ahmed, a Chittagong University teacher who wrote several books on Bangladesh’s parliamentary politics and practices, told the Dhaka Tribune that ideally the legislature should impeach the judges.
“We incorporated the idea of impeaching judges by the legislature from the Indian constitution. But Pandit Nehru took Indian parliament to a new height; nobody ever raises any questions about parliament’s authority,” he said.
He also pointed out that the British parliament had the authority to impeach judges. “But we should not authorise a legislature, the legitimacy of which is in question, to impeach judges. People have very little faith in this parliament,” said Prof Nizam.
