Points for hon'ble MPs to ponder

On July 9, the Members of Parliament launched a brazen attack on the apex court. They reacted bitterly to the Supreme Court's (SC) upholding of the May 2016 verdict of the High Court, quashing the 16th amendment. The amendment had empowered the parliament to remove SC judges on grounds of misconduct and incapacity.

Earlier, the ruling party bigwigs advised senior MPs to come prepared to speak on the matter. Leaders of allied parties were nudged to participate. The MPs did not waste the opportunity in castigating the higher judiciary. They conveyed their opinion in no uncertain terms. Expressing their "outrage", they denounced the verdict as "illegal" and "unconstitutional". Some felt that the SC verdict was "against the fundamental spirit of the original Constitution of 1972." One influential MP reminded his colleagues "enemies must be treated as enemies…and if need be, they are to be quelled." He warned the judges that they "could not prevent their impeachment through verdict." His advice, judges should "rectify their own mistake." 

Leader of an Awami-allied party sniffed "larger conspiracy" and interference in the "sovereignty of the parliament." The MPs were unequivocal in their stand that the vacated amendment was essentially an effort in "restoring Article 96 of the 1972 Constitution" and "did not infringe upon the fundamental character of the Constitution." Another leader of ruling alliance reminded the judges that it was this parliament that had enhanced their retirement age, and hiked their salaries and allowances only "some days ago".

Regrettably, the MPs did not limit their observations on the judgment of the Court and the submissions of the ten amicus curiae (nine of whom recommended scrapping of the amendment). They took the opportunity to launch vicious tirade against the Chief Justice and two of the amicus curiae, Dr Kamal Hossain and Barrister Amir-ul Islam. A very senior minister claimed that the verdict has indicated that the Chief Justice views Pakistan as his ideal. Dr Hossain and Barrister Islam were branded as "opportunists", "unscrupulous" and "betrayer". Opportunity was not lost to stress that in-laws of one of the two amicus curiae "hailed from Pakistan" and "his son-in-law is a Jew"!

The proceedings of the evening were particularly heartbreaking to those who have struggled over the decades for establishing parliamentary democracy and rule of law in this land. The arguments placed before the House not only appeared to have contravened parliamentary etiquette and undermined the principle of separation of powers between the three organs of the state, particularly judiciary and the legislature, they were also erroneous, and self-serving. 

The MPs claimed that by overturning the 16th amendment the SC acted "illegally" and "unconstitutionally" and has jettisoned plans for "restoring" the provision of the original 1972 Constitution. Since 2010 the SC had annulled three more constitutional amendments—5th, 7th and 13th. Commentators have noted that the Awami League MPs lauded the 5th amendment verdict as "landmark" and welcomed the 7th amendment. The question can justifiably be asked if the Awami League MPs did not find those verdicts illegal and unconstitutional, why should they deem the 16th amendment to be so?

The claim of restoring the original provision of 1972 Constitution also appears to be hollow. If the ruling party MPs feel so strongly about the value and usefulness of the 1972 Constitution why do not they move a bill in the House to bring back the same in its entirety? With more than two-thirds majority such a move is guaranteed to succeed. 

The assertion of the MPs that the 16th amendment did not alter the basic structure of the Constitution and thus the SC acted beyond its remit does not hold water either. Any rudimentary knowledge on independence of judiciary informs that under the scuttled amendment the parliament wrested the power of removal of judges from the judiciary, undermining the independence of judiciary and thus weakened the basic structure of the Constitution. 

The deliberations of July 9 at the House completely sidetracked the issue that uprooting of the much-celebrated provision of removal of judges by the parliament from the 1972 Constitution was the deed of the first Awami League government when it enacted the 4th Amendment in January 1975. 

The content and tenor of deliberations at the House on July 9 raise the question whether the MPs acted within their mandate. The answer is an unequivocal no. Article 94(4) of Bangladesh Constitution stipulates that the Chief Justice and the other Judges of the SC shall be independent in exercise of their judicial functions. In this context, eminent jurist Mahmudul Islam observes, "Conduct of any judge of the SC cannot be discussed by the executive government or by the Members of Parliament. The Rules of Procedure provide that no question, motion or resolution which contains reflection on the conduct of any judge of the SC shall be admissible" (Rules 53, 63 and 133). Jurist Islam further clarifies, "The immunity under Article 78 of the Members of Parliament in respect of what they say in the parliament cannot be construed as allowing them to make any statement or comment which may directly or indirectly undermine the independence of Judges of the Supreme Court" (Constitutional Law of Bangladesh, 3rd edition, Dhaka: Mullick Brothers, 2012). 

It is also pertinent to mention that Rules of Procedure also prohibit MPs to "make or imply a charge of a personal character." Therefore in all likelihood by making disparaging comments on amicus curiae the MPs contravened the Rules of Procedure that they themselves had framed. 

The hon'ble MPs asserted it was only in Pakistan that Supreme Judicial Council functioned for removal of judges. Embedded in their statements was in most other countries this power is vested in parliament. Empirical evidence exposes the vainness of such a claim. The "Compendium of Analysis of Best Practice on The Appointment, Tenure of Removal of Judges under Commonwealth Principles", a 2015 Commonwealth initiative, informs that out of 48 Commonwealth countries only 16 follow parliamentary removal method (34.3 percent) and as many as 30 have a disciplinary body that is separate from the executive and legislature (62.5 percent). The rest of the two countries follow a mixed method (3.2 percent). 

The Commonwealth study observes "most parliamentary removal systems have been modified by the involvement of an independent, external body in initial investigations, fact-finding and assessment of the allegations against a judge." Hon'ble MPs may wish to take into cognisance that of the 16 countries that follow parliamentary removal, as many as 12 do not entrust the task of fact-finding on the legislators. Instead an external body, independent of both legislature and executive, performs the task. It's only Bangladesh—in league with island states of Sri Lanka, Nauru and Samoa—that has retained unencumbered parliamentary control over judges' removal. 

The study cautions that parliamentary removal procedure "could lead to serious constitutional conflict if put into action" and notes that bicameral system provides some degree of safeguard. There is no scope for Bangladesh to have that recourse. 

During the July 9 deliberations a senior minister accused an amicus curiae for deliberately misleading the SC on the practice of removal of judges in India. He gave the impression that the country still continues its old method of removal by parliament. In fact, many countries including India, UK and South Africa that had empowered their parliaments to remove judges have by now introduced other measures to free the process from the influence of the government. Our MPs, whose liberty is fettered by Article 70 of the Constitution, may well be advised to take due note of the new reality.

The unsettling response of the legislative branch to the annulment of the 16th amendment and the fallacious claims about near-universality of parliamentary control on removal of judges do not augur well for democracy in this country. One hopes that reason prevails and all organs of the state pay due heed to the fundamental precepts of separation of powers and the rule of law.