Many legal experts feel that the independence of judiciary will be curtailed if the power of impeaching the judges of the apex court is given to the parliament. In their opinion, if it is done, the judiciary will have to remain subservient. However, different view also has been expressed by some others. A group of legal experts think that if the constitution is amended giving the parliament such
power not only the judiciary will be affected, the effectiveness of separation of judiciary will also be ruined. Partisan attitude will increase in appointing judges. With the exit of one government the phase of exit of the judges appointed during their time will also start. As a result the justice seekers will be affected. However, in the opinion of another group there is noting wrong if the constitution is amended giving the parliament the power to impeach the judges. The independence of judiciary will depend on the way of enforcing this power. At present the parliament or the government has nothing to do with the impeachment or removal of the judges. According to Article 96 of the constitution, if the allegation against any judge is proved after investigation into efficiency and attitude of him by the supreme judicial council constituted under the order of the president, only then the president can impeach the said judge. Article 96 (3) of the constitution says, “There will be a supreme judicial council, which will be mentioned in this Article as ‘council’ and will be constituted with two judges who are senior most among the chief justice and other judges.” The judges can not be removed under any circumstances except retirement and if no inability or gross misconduct is proved against him. And this matter will be investigated into by Supreme Judicial council formed under the direction of the president. Article 96 (6) says, “If the council after investigation submits such report that a judge has become unable (due to physical and mental reason) to perform his duty properly, or has been guilty of gross misconduct then the president by an order will remove that judge. The provision of forming Supreme Judicial Council was introduced through the 5th amendment to the constitution in 1978. Eminent citizens think the article granted exclusive freedom to the judiciary. The government was unable to remove a judge as per wish. Earlier, Article 96 of the 1972 constitution empowered the parliament to impeach a judge. During the tenure of the previous government, a bench of the High Court criticised Speaker Abdul Hamid while discharging judicial functions. A section within the government raised a demand to vest the power in the lawmakers to remove judges from their service. When incumbent President Abdul Hamid was holding the post of Speaker, he issued a ruling against the judges—the incident sparked a tussle between the legislature and the judiciary. That time, the MPs as a whole made a demand for restoration of Article 96 of the 1972 constitution. The parliamentary committee on constitution amendment during the ninth parliament also recommended for restoration but the parliament did not pay heed to the plea. But the parliamentary committee on law, justice and parliamentary affairs asked the officials concerned to take fresh initiative to restore Article 96. In a follow-up to this, the government has taken an initiative to amend the constitution and the draft of such amendment has already been prepared. There is widespread allegation over the process of appointing judges in the High Court. Whichever party comes to power, it allegedly appoints some judges as per its wish. Sometimes, the issue sparked movement of the lawyers. Former Chief Justice Md Ruhul Amin at a meeting of the lawyers regretted saying “doomsday” was created over the appointment of judges. He said the ill effect will not be nullified in 20 years. The legal experts think if the power of removing judges is vested in the parliament, it will create another doomsday. After the BNP-led alliance assumed power in 2001, it did not confirm the service of 10 additional judges who were appointed during Awami League regime. The BNP government flouted the Chief Justice’s recommendation in this regard. If the MPs are allowed to impeach the judges, untoward incidents will be repeated in future. Former Attorney General and constitution 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.” Supreme Court Bar Association 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. Prof Asif Nazrul of Dhaka University said if the government brings any change in the constitution deleting the provision of the Supreme Judicial Council, it will be prejudicial to the independence of the judiciary. He said if the government is really desperate to bring a change, it should introduce a system saying the parliament will take decision on the basis of the report of the investigation conducted by Supreme Judicial Council into the allegation, if raised, against a judge. A pro-government lawyer wishing anonymity said the move to restore Article 96 is aimed at controlling the judiciary. On the other hand former Chief Justice and incumbent Law Commission Chairman ABM Khairul Haque expressed a different view saying the military ruler had no authority to introduce Supreme Judicial Council. He said the martial law administrator has no power to change a comma or pull stop of the constitution. He said the military ruler at last tried to legalise the provision of Supreme Judicial Council changing the language of Article 96 through the 5th amendment to the constitution. But the Supreme Court declared the 5th amendment illegal. So, the government’s move to restore Article 96 of the constitution will not be illegal. The former CJ said the power of impeaching judges was given to British House of Commons in 1689, US Congress in 1787 and Indian Lok Sobha in 1950. Such system is prevailing in some other countries also. There is no problem if it exists in this country. However, the prevalence of this power depends on the use of the power. The independence of judiciary and the future of the country will depend on the execution of the power. If the responsibility is given to the parliament and if the power deviated from real objective or is used in a motivated way, the responsibility will rest with the House. Justice Khairul Haque said “I believe our parliament will exercise enough responsibility in this respect and will try to protect the independence of the judiciary. These comments are exclusively my personal views.” On this issue, chairman of the parliamentary committe on law, justice and parliamentary affairs Suranjit Sengupta told Kaler Kantho “I have also heard of reviving the Article 96 of 1972 constitution by amending the highest charter. This is unavoidable in the interest of ensuring sovereign parliament.”
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