The cabinet has set the ball rolling for another amendment to the Constitution - the 16th Amendment. It approved the draft of the proposed amendment in a cabinet meeting recently. Under the proposed amendment, parliament would regain its power to impeach the judges that was originally given to it by the 1972 Constitution which was lost subsequently through amendment.
The cabinet decision has since become a major subject of discussion everywhere because it has introduced a new controversial issue in the public domain. Talk shows in TV and newspaper columnists have gone overboard over it. In the talk shows and newspaper columns, the pro-Awami League (AL) participants and columnists have supported the government's move as a positive one for a number of reasons. First, they argue it would strengthen the sovereignty of parliament that is the spirit of the 1972 Constitution. Second, they argue that it would be a positive move towards reinstating the historic 1972 Constitution in its pristine glory.
The pro-AL talk show participants and newspaper columnists are right in a way. In many countries under the parliamentary system, the power of impeachment of the judges rests with parliament. In next-door India, article 126 of its constitution gives parliament that power. Nevertheless, the explanations in defence of the proposed 16th amendment are too simplistic and do not reflect the context in which these are being argued. They are defending the proposed amendment by going into denial over the nature and composition of the present parliament, the timing of the proposed amendment and the current state of politics in the country. If these were brought into the equation, their simple and seemingly justified explanations would not stand to serious scrutiny. In particular, scrutiny would show that parliament lost its power to impeach the judges by an amendment by the AL government and the opposition had nothing to do with it.
The first problem in giving parliament the power to impeach the judges lies in Article 70 of the Constitution that defeats the context in which the ruling party/government has argued the need of the proposed 16th amendment. Article 70 stipulates that members of parliament would lose their membership if they vote on any issue against the party's decision conveyed to them by the Party Whip. Under this power, parliament would become the judge, jury and prosecution while impeaching a judge following the enactment of the proposed 16th amendment. Even if mechanisms were built in the proposed 16th amendment to safeguard the interests of a judge facing impeachment, his/her fate would still be decided by the decision of the ruling party communicated through the Whip. With Article 70 remaining in the Constitution, the proposed 16th amendment would give politics precedence over justice and force judges to toe the line of the ruling party, thus destroying the independence of the judiciary that has also been guaranteed by the constitution.
The second problem for the proposed 16th amendment arises from the nature of the present parliament. With the issue of legitimacy hanging over it like the Sword of Damocles, with 154 of its 300 members without a single vote to show, arguing that giving the present parliament the right to impeach the judges would restore the sovereignty of the people makes no sense because this parliament, according to many, does not reflect the will or wishes of the people. Further, the ruling Awami League did not seek any mandate of the people to bring such a fundamental change in the constitution which may threaten to destroy the independence of the higher judiciary. Therefore, it cannot be argued that restoring the right of parliament in its present state to impeach judges would be democratic. In fact, no one without political motive would argue that the present parliament deserves to be given such a power.
The politics surrounding the proposed 16th amendment makes it most controversial. Ruling party leaders have said that the power to impeach the judges was taken away from the 1972 Constitution by President Ziaur Rahman and given to the Supreme Judicial Council (SJC) to make the judges happy for backing the changes after August 15, 1975. This is not correct. The power was taken away from parliament in 1974 through the 4th amendment and given to the President. Ziaur Rahman became President in 1977. In fact, he could have benefited from the 4th Amendment. Therefore he should be given credit for doing something that no one else in power has done in the country's history. He gave up the President's power to impeach the judges to the Supreme Judicial Council (SJC).
Therefore the initiative of the government to give parliament the right to impeach judges has caused many eyebrows to be raised in the country. There are many who do not see any necessity at the moment for it to do so. Many are curious why the ruling party initiates a move that raises so many questions about its intentions, particularly on timing. The answer lies in what ministers and AL leaders have said repeatedly in the media leading to the cabinet decision on the proposed 16th Amendment - that they intend to remain in power until 2019 and beyond. The judiciary is still the guardian of the constitution and therefore could be a threat to such a desire of the ruling party. The proposed 16th amendment would take care of that possibility. Past experiences of adding to the powers of a government to remain in power indefinitely have boomeranged. In its 1972-75 term, the AL had enacted the Special Powers Act of 1974 but it itself became its victim. The Bangladesh Nationalist Party (BNP) had given the police the power to give permission to hold political meetings in Dhaka and the present ruling party has used this power against the BNP very effectively so far.
The proposed 16th Amendment could provide a future BNP government the handle to mould the judiciary to its advantage that would be harmful for democracy. Readers interested on a detailed analysis of the right to impeach the judges in the context of the 1972 Constitution should read a very thought-provoking article titled Fourth Amendment to the Constitution: A Review that appeared in the July 20, 2013 issue of the Financial Express in its Feature and Analysis section.
All arguments in favour and against the proposed 16th Amendment apart, the issue has already created considerable unhealthy controversy. Given the fact that parliaments worldwide have impeached judges only in a blue moon (in India, it has happened only twice in over six decades), one wonders why the government has decided to initiate the 16th amendment at a time when the judges should be the least of its worries.
 serajul7@gmail.com
Impeaching the judges: A few facts
M. Serajul Islam | Published: September 01, 2014 00:00:00 | Updated: November 30, 2024 06:01:00
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