Jurists denounce move to empower JS to impeach SC judges: Govt wants subservient judiciary to establish one-party rule

Senior lawyers and constitutional experts have expressed opinions against the government move to empower Parliament to impeach Supreme Court judges for misconduct, disability and violating oath.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.Former Attorney General Barrister Rafiq-ul Haque and Bar Council Vice-President Adcvocate Khondkar Mahbub Hossain said the government has taken the move because they are unhappy with the judiciary, while former Adviser to the Caretaker Government Barrister Mainul Hosein said the government needs a subservient judiciary because it wants to go for one-party authoritarian rule.  The original article 96 empowered the legislature to remove judges with two-thirds majority of Parliament.Expressing grave concern over telephone, Dr Kamal, who is now in France, 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.”Former Attorney General and constitutional expert Barrister Rafiq-ul Huque said if the authority of removing judges is given to the parliament, it is likely to affect the independence of the judiciary. Whenever the government is unhappy with the judiciary, it will get chance to remove judges. “In 1972, the parliament had the power to remove judges. But in 1978, the provision of Supreme Judicial Council was introduced in the interest of the independence of the judiciary.”Bangladesh Bar Council Vice-President Khandker Mahbub Hossain said the authority for removing judges was given to the parliament in 1972 with a view to creating political influence upon the judiciary. When Ziaur Rahman took over state power, he introduced the system of Supreme Judicial Council to ensure freedom of the judiciary. The incumbent Awami League government is going to restore Article 96 of the constitution to dominate the judiciary again.Barrister Amir-ul Islam told The New Nation 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, hat is the Supreme Judicial Council, was better than impeachment by parliament. The lawyer said the formation of the Supreme Judicial Council (SJC) 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.”Amir-ul Islam has urged the Prime Minister and Cabinet members to give second thought and refrain from empowering Parliament to impeach Supreme Court judges.He said that the impeachment of Supreme Court judges for misconduct or disability was a judicial function and there is a balance in the existing system of Supreme Judicial Council. “The involvement of Parliament in any way in the process of impeaching judges will destroy the existing balance,” Barrister Amir said, “The existing mechanism of Supreme Judicial Council, provided by Article 96 of the Constitution, provides for investigation in case of impeachment for misconduct or disability of the Supreme Court judges,” Barrister Amir said.He said, “The honourable President can refer such a case to the Supreme Judicial Council to conduct an investigation and the Chief Justice, who is Chairman of the Council, also refer the matter to the honourable President.”  “Then President can again refer the matter to the Supreme Judicial Council, thereby there is a balance between the judiciary and the executive,” he observed.About the system of Parliamentary authority to impeach judges in different countries, including the UK, USA and India, Barrister Amir said, “What is important to keep in mind that impeachment of Supreme Court judges is a rare incident globally.”The former Supreme Court Bar Association President requested the Cabinet and MPs to enact a law for appointment of the Supreme Court judges encompassing preconditions provided by the Article 95 of the Constitution instead of going for the 16th amendment to the Constitution.