Parliament to get authority to impeach SC judges

The cabinet cleared Monday a bill for amending the constitution to restore parliament's authority to impeach judges of the Supreme Court for misconduct or incapacity, in what is seen as a second significant legislative move from the present government.

As proposed in the draft Constitution (16th amendment) Act 2014, any of the apex-court judges could be impeached for his/her "misconduct" or "incapability" by vote of at least two-thirds Members of Parliament (MPs).

The impeachment could not be executed without the order of the President.

Reports say the proposed act may be placed in the upcoming parliament session for enactment to transfer the authority of impeachment to parliament from the supreme judicial council that is formed at the time of necessity for such action.             

In the meantime, in the first major move on lawmaking, the government also has approved the National Broadcasting Policy. It will also get through the next parliament session, scheduled to begin on September 1.

"Once the draft Constitution (16th amendment) Act 2014 is passed in parliament, it will raise public confidence in the judiciary and ensure accountability of public representatives in parliament," Cabinet Secretary Muhammad Musharraf Hossain Bhuiyan told the media after the regular weekly cabinet meeting at Bangladesh Secretariat approved the draft act.  

He said the ministry of law will now complete the procedure to place it as a bill in the upcoming parliament session.

Prime Minister Sheikh Hasina presided over the meeting at the cabinet division.  

The secretary said according to the existing constitutional provision, the Supreme Judicial Council (SJC), comprising the chief justice and two other senior-most judges of the Appellate Division, investigates allegations of misconduct against any Supreme Court judge and makes necessary recommendations to the President.  

And the President then takes steps as per the suggestions. He could also impeach a judge for having physical and mental incapacity to properly perform the function of his office.

The 1972 Constitution had empowered parliament to impeach SC judges. But the Awami League-led government in early 1975 shifted the power to the President through the fourth amendment to the constitution.

Later on, the then military ruler, General Ziaur Rahman, amended the Constitution through martial law proclamation in 1978, scrapping the President's powers, and introduced the SJC system.

The Awami League-led government kept the system intact while passing the 15th amendment to the constitution in 2011.

The cabinet secretary said if the proposed 16th amendment act is approved by parliament, another law needs to be enacted to determine the entire procedure of impeachment of judges, including investigations.

He said the authority of impeachment was vested upon parliament through article 96 of the 1972 Constitution, formulated to uphold the spirit and ideals of the War of Liberation.

But, in absence of parliament, the authority was vested on the SJC by a martial law proclamation in 1978.

The military rule followed the assassination of Father of the Nation Bangabandhu Sheikh Mujibur Rahman in the early hours of August 15, 1975.

The proclamation cancelled article 96 of the constitution which is contradictory to article 7.

Mr Bhuiyan said the neutrality and accuracy of the impeachment decision could be questionable as an accused judge and a member of the Supreme Judicial Council usually work together in the same institution.

"According to article 7 of the constitution, people are the owners of all powers of the Republic and the enforcement of these powers will be effective only under the Constitution," he said about the latest switchover.

As per the spirit of the 1972 Constitution, the ultimate accountability of the three organs of the state -- Judiciary, Executive, and Legislative -- was vested in parliament which is elected by people's vote.

He said there are consistencies in article 54, 74 (ga) and 57(2) with the main provision of article 96 of the 1972 Constitution.

Musharraf Hossain further explained that the President of the Republic could be impeached by two-thirds majority of parliament members as per article 54 of the constitution while the Speaker of parliament could be impeached with simple majority of parliament members according to article 74 (ga).

On the other hand, no-confidence motion could be adopted against the Prime Minister with simple majority of the MPs according to 57 (2) article.

The cabinet secretary said the Law Ministry, before drafting the draft law, had reviewed the systems of other leading democratic countries like the United Kingdom (UK), India, Canada, Australia, the USA and Sri Lanka.

He said the Law Commission at a meeting of the Parliamentary Standing Committee suggested restoration of the provision of parliament's authority to impeach judges.

The cabinet also okayed the draft of "The National Shrimp Policy 2014' aimed at betterment of the sector.

Meanwhile, Law Minister Anisul Haque said the parliament should be empowered to impeach SC judges in order to hold the judiciary to account and ensure transparency in its function.

"We believe the amendment will not compromise the judiciary's freedom, rather will ensure the benefit that the people enjoy due to the freedom of judiciary," he told the media at his ministry.

He said parliament was already empowered to impeach the president, the prime minister and the speaker. Defending the draft of the 16th constitutional amendment bill, Law Commission Chairman Justice ABM Khairul Haque said the freedom of the judiciary will not be impeded with it, reports UNB.

"There's no reason to think it'll harm the freedom of the judiciary," said Justice Haque, also former chief justice, at a press briefing at the Law Commission office.

He referred to the matching system prevailing in many countries, including India and the UK.

"We should return to the constitution of 1972," he added.

The Law Commission Chairman said the authority had been given to parliament in the original constitution of 1972, making the provision to impeach the judges of the SC. It was later deleted with the 5th amendment to the constitution during President Gen Ziaur Rahman's regime, introducing the formation of the Supreme Judicial Council with the Chief Justice of Bangladesh and two next senior judges for dealing with the case of removal of the apex- court judges.

Law Commission members Prof Dr Shah Alam and Justice ATM Fazle Kabir were also present at the press briefing.