Which law is priority: SC judges' appointment law or impeachment by JS

THE cabinet on August 18 approved a proposal on amending the constitution to restore parliament's authority to impeach Supreme Court (SC) judges on grounds of misconduct or incapacity, by scrapping the existing provision for the chief justice-led Supreme Judicial Council (SJC) for the task. The bill will be passed any day in the next session.

 The move has already triggered huge controversy as to whether the restoration of the parliament's authority will appear as a threat to the independence of the higher judiciary. It is certain that the parliament will be empowered after the amendment to the constitution. But the move generated some other crucial questions. Will the amendment have any positive impact on the higher judiciary? Which is the more urgent need now--empowerment of the parliament to impeach the SC judges or enactment of a law, according to the constitution, specifying the criteria for their appointments?  

We think the majority opinion is for immediate enactment of a law on the appointment of judges to uphold the independence and dignity of the apex court. In absence of a law, all the successive governments enjoyed freedom to appoint judges. Some controversial appointments in the past have severely undermined the image of the SC.   

On April 29, 2007, the then Chief Justice Ruhul Amin made some strong remarks about the faulty appointment system of judges to the SC. He said that the irregularities in appointment of judges in the past need at least 20 years to be removed. Senior lawyers of the SC welcomed the. The jurists said that the authorities should start immediately to cleanse the higher judiciary through the supreme judicial council or other means, instead of waiting for 20 years. However since then no major move has been made to this effect.

About three years after Justice Ruhul Amin's remarks, the then Chief Justice Mohammad Fazlul Karim on April 18, 2010 refused to administer oath to Ruhul Quddus Babu and M Khasruzzaman as additional High Court judges along with 15 others appointed by the president. It was considered that Justice Karim had taken the decision in the wake of controversy over the appointment of the two judges along with the 15 other on April 11, 2010 by the president.

Justice Karim had to face strong criticism for his decision at his farewell on September 29, 2010. Attorney General Mahbubey Alam in his speech on the farewell programme blamed Justice Karim for violating the constitution by not administering oath to the two judges. In his written statement the attorney general said Justice Karim had satisfied that particular section which was against the Liberation War by violating the constitution.  

About a year after his decision not to administer oath to the two HC judges, Justice Karim, along with some other former chief justices and eminent jurists, was invited by the parliament body for constitutional amendments, to attend a meeting to give their opinions on various issues. Along with others he attended the meeting on April 24, 2011 at the parliament building. He gave his opinion on some issues including the independence of the judiciary and the appointment of judges. Justice Karim stressed the need for letting the judiciary to grow as an institution. He said that there must be a specific policy, both regarding appointment and selection of judges. "This institution will earn much reputation if we follow the policy. In the past, we had an excellent institution. Everybody in the sub-continent used to appreciate us about our judiciary. But recently this judiciary has become a subject matter of controversy for some reason or the other. You all know it well. We will be able to regain the image of this institution if we can remove the reasons [behind the controversy]," Justice Karim said, according to the committee meeting proceeding.

Some other senior jurists who were present at the meeting also spoke about the importance of a law on the appointment of judges. While commenting on whether the parliament should get back that the question [of impeachment] will not arise if good people are appointed as judges.

The 15th amendment to the Constitution was passed by the parliament on June 30, 2011. But the Awami League-led government did not pay heed to opinions on the enactment of a law according to Article 95 (2) (c) of the constitution. It has opted for following the suit of its predecessors and refrained from taking any move to enact a law. Amid such a situation, the parliament is set to get back its authority to impeach SC judges. It is certain that the parliament will have no say, as the government does not want, in the enactment of the law prescribing other qualifications of individuals for being appointed as  SC judges.

In the absence of a law, a person, if he is a citizen of Bangladesh, and has been an advocate of the SC for at least 10 years or has been holding judicial office for 10 years, is eligible for appointment as a judge to the apex court. S/he needs no other qualification. There is no other mechanism to scrutinise the efficiency of individuals willing to be judges of the apex court. This situation will keep benefiting the government, not the higher judiciary.

The writer is a Sr. Reporter, The Daily Star.