JS getting power to impeach judges:Daily Sun

 The law ministry has prepared the draft of 16th constitution amendment bill with a view to returning to the parliament the power to impeach the judges of apex court. Side by side, it has also been proposed to empower the parliament to enact law relating to proving the inefficiency or misconduct of the judges. Although the draft of the amendment bill has been formulated with these provisions, at t
he last moment it may include the issue that MP post is not profitable. MPs are not included at present in the list of the posts which are considered profitable. Besides the issue relating to capturing power violating sovereignty may also be changed to some extent. This information was learned from the officials of Prime Minister Office (PMO). At the cabinet meeting held at the secretariat on Monday, Prime Minister Sheikh Hasina wanted to know from law minister Anisul Haque about the progress regarding 16th constitution amendment. The law minister informed the PM that “We have taken all preparations regarding 16th amendment.” A senior member of the cabinet stated this to this correspondent after the cabinet meeting. Over the last one year more than one meeting took place between PMO and law minister over constitution amendment. It was finalised last week. The law ministry will place soon in the cabinet meeting the draft bill for 16th amendment. After the approval in principle the draft bill will go to the parliamentary committee. The parliamentary committee will get the opportunity to express its opinion again on this matter. The amendment bill in this regard is coming to the parliament just in the next session, a senior minister said. In the draft prepared for 16th amendment proposal has been made to replace article 96 of the constitution. There are eight sub-articles in the article 96 of present constitution. In the draft there will be four sub-articles in article 96. Among them the provision for empowering the parliament to impeach judges is incorporated in article 96 (2). And the law relating to the method to prove misconduct or inefficiency has been proposed in article 96 (3). It is stated in article 96 (2) that “a judge can not be removed without the order of the president passed in accordance with the proposal supported by at least two thirds majority of total members of the parliament.” It is said in article 96 (3) “the parliament will be entitled to regulate by law the method of investigating and proving the misconduct or inefficiency of a judge relating to the proposal under sub-article (2).” Apart from these two provisions, there are in article 96 the provisions of age limit for retirement of judges at 67 years and their resignation to the president. At present the judges have no mandatory accountability to anybody. The 16th amendment is being brought to make the judges accountable to parliament and thereby to the people. According to article 96 of the constitution, the president can impeach a judge only if allegation against the judge is proved in investigation about his efficiency and conduct after the formation of supreme judicial council under the order of the president. In 1978 this provision of constituting supreme judicial council was replaced through 5th amendment of the constitution. This provision provided unlimited freedom for the judiciary. Even if the government wanted it could not remove any judge at it suit will. Earlier, in the constitution of 1972, the power of impeaching apex court judges was vested in the parliament. Currently, the President and the Prime Minister are liable to the parliament. The parliament can impeach them in case of their moral turpitude. But, the parliament does not have such power as regards the judges. In the recent years, the government faced awkward situation due to some decisions of the judiciary. Therefore, the government has decided to make the judiciary accountable to the parliament—and the people at large. Earlier, the parliamentary standing committee on law and another committee on amending constitution in the light of the Supreme Court’s verdict declaring the 5th amendment illegal, recommended for restoring the power of the parliament to impeach judges. That time, the policymakers of the government backtracked. An official of the Prime Minister’s Office (PMO) said a full-stop or comma of the constitution cannot be changed by martial law regulation. But the system of Supreme Judicial Council to remove judge was introduced by Article 96 of the constitution by military government illegally. After 1978, the then government tried to legalise the system through the 5th amendment of the constitution. Later, the SC declared the 5th amendment illegal. If the 72 constitution provision of vesting the authority of impeaching judges in parliament is restored, it will not be illegal. The system is prevalent in many countries including neighbouring India. British House of Commons in 1698, the US Congress in 1787 and Indian Lok Sabha in 1950 granted such power to the parliament. That an organ of a democratic country is sovereign sparked much controversy. Many political scientists say as the lawmakers represent people, the sovereignty of the parliament is tantamount to the sovereignty of the people. It is said in the draft of the 16th amendment bill, the three organs of the state —executive, legislature and judiciary—were accountable to the parliament. Article 7 of the constitution says “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. As a result, the Prime Minister and other cabinet members are individually and collectively responsible to the parliament for their activities. The PM including other cabinet members has to resign if they lose confidence vote. So, people’s confidence is the only way to hold executive power constitutionally. The lawmakers and ministers are obviously accountable to the parliament. It is an integral part of the democratic process of rule and the republic. As per Article 96 of the 1972 constitution, the Supreme Court judges were not beyond this accountability to the parliament because the parliament members are elected by the people. The accountability of the SC judges to the people is a legal obligation as Article 7 vindicates people’s supremacy. However, there is different opinion regarding this issue. If such change is necessary then the constitution has to be changed again. There are widespread questions regarding the election. So, the constitution of this parliament should not be changed. Wishing anonymity an OSD –the rank of an additional secretary said this government is trying to consolidate the power in many ways along with controlling all the state organs. If power is given to the parliament to remove the judges, all the aims in terms of controlling everything will be fulfilled. If the parliament gets such power, the judiciary will be under its control. If the verdict is not given in favour of the government, the judge will face its anger. If this situation prevails, the judges will have to depend on the government rather than law. Besides, it will contradict with the independent judicial system. Courtesy: Kaler Kantho