News Analysis: Justice Khairul's dubious distinction

Justice ABM Khairul Haque has become the lone former chief justice who has strongly criticised a Supreme Court verdict to defend the parliament's power to remove SC judges and the government's authority to have control over the lower judiciary.

The SC unanimously scrapped the 16th constitutional amendment as it found the changes went against the principles of the separation of powers and the independence of the judiciary. It also restored the Supreme Judicial Council (SJC).

After release of the full verdict on the 16th amendment case on August 1, Justice Haque, chairman of Bangladesh Law Commission, has strongly criticised the judgement several times.

In a press conference at his office on August 9, he termed the verdict “misconceived, undemocratic and immature”.

He said he didn't agree with the opinion that independence of the judiciary would be curbed in the absence of the SJC.

“I think the Supreme Judicial Council doesn't have much to do with independence of the judiciary,” he claimed.

The former chief justice said people are the owners of the republic and the parliament represents the sovereign people. “When everyone is accountable to the parliament, there is no reason why judges should be an exception to this.”

Some of his predecessors including Justice Mustafa Kamal, Justice Mohammad Fazlul Karim and Justice Tafazzul Islam had supported the SJC to remove SC judges on grounds of misbehaviour or incapacity. 

Participating at a meeting of the parliamentary body for constitutional amendment on April 24, 2011,

Justice Mustafa Kamal and Justice Fazlul Karim strongly opposed restoration of the parliament's power to remove SC judges by scrapping the SJC.

In defence of continuing with the SJC, Justice Kamal said the principle of jurisprudence is that no one should be judged other than one's own peers.

"For this, if an individual in the civil service commits any misconduct, we hold his trial by his senior officers. Similarly, if a district judge commits any offence, he is investigated by a senior district judge from another place and then he is punished," he continued.

Justice Karim, who was first a member and then chairman of the SJC, said, "I have noticed that there is no problem in the way we can investigate [into allegations] properly through evidence and witnesses. Therefore, it is better to leave the court's matter to the court."

Justice Tafazzul, who also joined the meeting, did not give his opinion on the issue.

But in the constitutional Fifth Amendment case verdict in 2010 then chief justice Tafazzul Islam said the provision for SJC was more transparent than that of earlier ones and safeguarding independence of judiciary.

Justice Tafazzul-led six member Appellate Division bench that delivered the verdict condoned introduction of the SJC by amending the constitution through martial law proclamation in 1977.

The chief justice-led SJC was introduced by scrapping the president's power to remove SC judges.

The fourth amendment in 1975 cancelled the parliament's power to remove SC judges and gave it to the president.

In the 15th constitutional amendment in 2011, the government retained the provision for SJC.

But things changed in 2014.

Justice Haque, who was appointed as chairman of the Law Commission in July 2013 for three years, in June 2014 recommended to the parliamentary standing committee on the law ministry for restoring the parliament's powers to remove SC judges by scrapping the SJC.

"Parliament represents people. So, all people, including judges, should be accountable to parliament," he argued in the proposal.

On August 18, 2014, hours after the cabinet approved the proposal for constitutional amendment to restore the parliament's power, Justice Haque held a press briefing at his office and strongly defended the proposed constitutional amendment.

"There is no reason for Supreme Court judges to panic if parliament gets the authority…" Justice Haque said.

Justice Haque, who was appointed for second term in June 2016, keeps criticising the apex court's verdict scrapping the constitutional 16th amendment that had restored parliament's power to remove SC judges.

His criticism triggered widespread controversy. Pro-AL lawyers have supported him while pro-BNP lawyers have demanded that the apex court take contempt proceedings against him on charge of contemptuous remarks.  

Former chief justice Khairul also spoke in favour of current article 116 of the constitution which gives the government power to have control over the lower judiciary.

The original article 116 of 1972 constitution empowered the SC to have control over the affairs of lower judiciary, including the posting, promotion, grant of leave and discipline of the judges and judicial magistrates.

But the parliament, through the fourth amendment to the constitution during the AL rule in 1975, scrapped that authority of the SC and gave it to the president.

Later in 1978, during the martial law regime, the article was amended further through the martial law proclamation and a provision was introduced saying the president would exercise the authority in consultation with the SC.

The 15th amendment in 2011 retained the provision introduced by the martial law regime.

While speaking at a program on Saturday, Justice Haque termed the present provision as "best system" as he said the powers to control the lower judiciary should not be confined to one hand.

His views, however, do not match with the observations made in a number of SC verdicts.

In the Fifth Amendment case verdict, the Appellate Division expected that the parliament would restore as soon as possible the original article 116 of the constitution for an effective separation of the judiciary.

In the verdict the six-member Appellate Division-led by Justice Tafazzul Islam also referred to observation made in an earlier case.

In an earlier verdict, the apex court said, "…until and unless the unamended Articles 115 and 116 of the Constitution are restored vesting the control of the subordinate judiciary in the Supreme Court, the separation of judiciary will remain a distant cry and a music of the distant drum."

Other five judges of the bench agreed with Justice Tafazzul who penned the verdict. Of them Justice Mohammad Fazlul Karim and Justice Md. Muzammel Hossain have later become the chief justices and retired. And one of the judges, Justice Surendra Kumar Sinha is the current chief justice.

In the landmark verdict on the separation of judiciary the four member-Appellate Division bench-led by Justice Mustafa Kamal in 1999 also spoke unanimously for amendment of the Constitution for an effective separation of judiciary.

Of the three other members-- Justice Latifur Rahman and Justice Mahmudul Amin Chowdhury have become chief justice later and retired.

In the verdict, the apex court said parliament will in its wisdom take necessary steps regarding to amendment of the constitution to restore the original articles 115 and 116 of the constitution.

Article 116 says, “The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”

At first sight, it may seem that the president has been empowered by the amendment to article 116. But in reality, he himself cannot exercise the power. The prime minister exercises the power as the president performs all his functions on advice of the prime minister, except for the appointment of the PM and the chief justice.

Article 116 however runs counter to Article 109, which has been in the constitution since 1972. Article 109 reads: "The High Court Division shall have superintendence and control over all courts and tribunals subordinate to it."

But none of the successive government paid heed to the apex court or move to restore the original article 116 as the government want to retain the power to have control over the lower judiciary.

This in fact creates dual rule in the judiciary which Justice Khairul himself acknowledged, but he claim this is the "best system".

If Justice Khairul is right in his opinion on the Parliament's power to remove SC judges and the government's power to have control over lower judiciary, views of other former chief justices and observations made in some verdicts do not stand.

His scathing remarks may strengthen the government's stance against the 16th amendment case verdict, but those are in no way healthy for the judiciary.