Controversies continue to follow the trail of recent Cabinet decisions. First, there was the National Broadcasting Policy. That resulted in debate and accusations that the government was trying to muzzle all forms of media - electronic, print, broadcast and social. That has since been politicised and several political parties have hinted that this measure has only been an example of the 'autocratic nature' of the present government and their unwillingness to take any criticism. Unfortunately, they have failed to recognise the principle that the effort of the relevant authorities has been directed towards not curbing media freedom but creating a matrix of responsibility where ethical standards will be upheld in all aspects of media expression as well as in the arena of advertisement. Yes, there will also be necessity, as I wrote earlier, in moving forward by creating an acceptable Broadcasting Commission through a transparent manner on the basis of discussion with the stakeholders. Nevertheless, one should not also forget the stipulation that exists in Article 39(2) of the Constitution that states that there will be freedom of thought and conscience "subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence".
The scenario was still relatively sensitive when the next decision came to the forefront. It related to the adoption of a Cabinet decision that would facilitate the adopting of an amendment, the sixteenth, to the Constitution. This related to the restoring the Jatiyo Sangsad's authority to impeach Judges of the Supreme Court in Bangladesh. This power was earlier vested in Parliament when our original Constitution was enacted in 1972. In early 1975, this power, through an amendment, was vested on the President of the Republic. Later, in 1978, through a Martial Law Proclamation and the Fifth Amendment, the President's power was curtailed and a Supreme Judicial Council created for this purpose. Article 96 (3) stipulated that "there shall be a Supreme Judicial Council which shall consist of the Chief Justice of Bangladesh and the two next senior Judges".
The same Article has also mentioned that the function of this Council shall be - "to prescribe a Code of Conduct to be observed by the Judges. It has also been indicated in this Article that on the basis of information received from the Council or from any other source, if the President has reason to apprehend that a Judge is incapable of properly performing the functions of his Office by reason of physical or mental incapacity, or is guilty of gross misconduct, then the President can ask the Council to undertake an inquiry in this regard. If after the inquiry it is decided by the Council that the Judge in question incapable of performing his expected duty or is guilty of gross misconduct, then the President, can by an Order, remove the Judge from Office."
It can be noted here that over the last 38 years the Supreme Judicial Council (SJC) has probed allegations against four Judges - one was eventually sacked after necessary inquiry, two resigned before completion of the inquiry (presumably consistent with Article 96 (8) and one Judge was cleared of all charges.
The Cabinet decision in this regard was probably anticipated by a lawyer Mr. Akhund and he filed a writ in the High Court in this regard on July 20. In this context he highlighted in his plaint certain Articles from the Constitution to support his arguments. They included reference to Article 7 B (that basic provisions of the Constitution are not amendable), Article 22 (related to separation of Judiciary from the Executive) and Article 94 (4) that relates to the establishment of the Supreme Court and the fact that "subject to the provisions of this Constitution, the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions". This writ petition has not been disposed of as yet.
Eminent jurists have opined that this is a very serious issue and needs further examination and consideration. As expected, the Supreme Court Bar Association, which at present is headed by a BNP sympathiser, has alleged that the government move was an 'ill attempt to politicise the judiciary' and 'to keep them in an anxious state of mind so that they won't be able to pass any order against the Administration'. Eminent lawyer Barrister Rafique-ul Huq has pointed out that this move would 'give the government an opportunity to exert pressure on the Judges through Parliament when Judges deliver any verdict against the Government, especially in political cases'. Another lawyer has mentioned that if the general people lose faith in the independence of the judiciary because of this move, then they might avoid going to Courts to seek legal redress and instead take the law into their own hands.
Two former Chief Justices have cautioned about Members of Parliament being able to undertake a satisfactory evaluation with regard to activities of Judges because they might not be sufficiently qualified in matters of law and this might lead to misjudgment. Former Attorney General Mahmudul Islam has spoken about the ineffectiveness of the Supreme Judicial Council as it exists. But, according to media reports, he is opposed to giving Parliament the power to impeach Judges. In this regard he referred to the stringent restrictions imposed on MPs through Article 70 of the Constitution. It may be recalled that the provisions of this Article stipulates that MPs cannot vote independently but must abide by the Party decision. The current Attorney General Mahbubey Alam has taken note of the controversy that has marked this process but has in a constructive spirit suggested that the government could also consider reforming the present structure of the Supreme Judicial Council by including, in addition to the Chief Justice and the two senior most Judges of the Appellate Division, three other members - the Attorney General, a senior member of the Bar Council and an MP nominated by the Speaker of Parliament.
The Bangladesh Law Commission Chairman, former Chief Justice ABM Khairul Haque has, however, come forward and mentioned that there is no reason to panic with the new process coming into place. He has, in this regard referred to the prevailing practice in Great Britain, the USA and in India and asked why there should be hesitation for us to follow the practice of Parliament overseeing the Judiciary if this can be taking place in these countries. He has noted that the government would have to formulate a law determining the procedure of possible impeachment proceedings. He has expressed his frustration over the embarrassingly excessive delay in the current process of case disposal. In this context he has observed that though there had been an increase in the number of High Court Judges, this had not reduced the backlog of cases. The Chairman has remarked that the High Court should be more cautious in issuing 'Rule' and 'Stay Order' following a petition. One must admit that these have been pro-active constructive views.
It would be pertinent to recall here that this move to re-establish the power of Parliament with regard to the Judiciary has come after more than two years of a particular situation that arose in the Ninth Parliament. It came forth after a High Court judge ruled that the then Speaker Abdul Hamid, now President, had committed an offence through his comments about the Judiciary. This view of the Judge sparked debate in Parliament with the MPs demanding the removal of the Judge through the convening of the Supreme Judicial Council or through restoration of the original provisions in the Constitution that would make the Judiciary accountable to the legislature. The Supreme Judicial Council was eventually not convened. The bitterness that continued to exist has finally re-emerged from underneath the surface.
One needs to tread carefully within the evolving parameter. Parliament is the elected supreme representative assembly and the acknowledged repository of the sovereign powers of the State. This undeniable precept is followed by other mature functional democracies. These States, however, also acknowledge that the Judiciary is an important pillar of the State constitutional infrastructure, whose independence should not to be tampered with or politicized. It is agreed that absence of this dictum can contribute to arbitrary exercise of power.
It is this paradigm that persuades one to hope that the relevant authorities in the country will not be too hasty and will take time to re-think and find common ground and evolve a satisfactory solution taking into consideration the several existing constraints.
The writer, a former Ambassador, is an analyst specialised in foreign affairs,
right to information
and good governance.
mzamir@dhaka.net
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