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Constitution Talks

Yes to caretaker govt, no to ex-CJs

Top jurists against JS authority to remove constitutional appointees

Staff Correspondent
Eminent jurists yesterday recommended that the parliament amends the constitution scrapping the current provision which allows former chief justices to lead caretaker governments.
The recommendation was made to ensure the independence of the judiciary,
they said.
While speaking at a talk organised by the parliamentary special committee on constitutional amendment, the constitutional experts said the current provision regarding appointments of chief advisers to caretaker governments contributed to making the judiciary controversial by hampering its independence.
Almost all of the participating jurists opposed the special committee's move to restore the parliament's authority to remove judges of the Supreme Court (SC) and other constitutional officers on grounds of misconduct and incapacity. They expressed their skepticism about the effectiveness of that restoration.
They instead suggested strengthening the existing system of the Supreme Judicial Council led by the chief justice for removal of constitutional officers such as the SC judges, chief election commissioner, election commissioners, chairman and members of the Public Service Commission, and the comptroller and auditor general.
The jurists also strongly opposed maintaining the status of Islam as state religion, as it contradicts secularism, one of the fundamental principles of the state. Some of them also spoke for imposing a ban on religion based politics.
According to article 58C of the current constitution, an immediate past chief justice is appointed as the chief adviser to a caretaker government. If such a retired chief justice is not available or is not willing to hold the post, then the person who among the willing retired chief justices retired last before the immediate past chief justice, is appointed as the chief adviser.
And if no retired chief justice is available or willing to hold the office of the chief adviser, the president shall appoint as chief adviser the last retired judge of the SC Appellate Division, says the constitutional provision introduced in 1996 through the 13th amendment amid a political turmoil.
"The current system does not conform to the independent judiciary," former chief justice Mustafa Kamal told reporters emerging from the talk held at Jaitya Sangsad Bhaban.
He termed offering of the chief adviser's post to a retired chief justice as dangling of a carrot in front of a sitting chief justice or would be chief justice, through which they are made loyal to the executive branch of the state.
"Therefore, I told them to scrap the provision and find an acceptable man for the post," the former chief justice said.
Dr MA Zahir proposed for introduction of a system of forming a 10-member makeshift cabinet — five from the ruling party and five from the opposition parties in parliament.
The president will head the makeshift cabinet which will act on advice of the Election Commission (EC), and its tenure will be one and a half months maximum. It will strengthen the EC and keep the judiciary free of controversy, Zahir said.
"The caretaker government system should be changed based on a consensus between the ruling and opposition parties in such a way that the judiciary is not made controversial," Barrister M Amir-Ul Islam told reporters about his suggestion to the special com-
mittee.
All jurists however favoured maintaining the caretaker government system for holding a free and fair parliamentary election, due to the current confrontational nature of political culture, and they supported the committee's move to limit the tenure of caretaker governments, said some members of the special committee.
About restoration of the parliament’s specific authority for removal of constitutional officials, some jurists argued that restoration of this constitutional provision will not be effective, and it may have negative impact on the independence of the judiciary.
Revival of that authority of the parliament will repeal the existing provision of the Supreme Judicial Council, introduced during the first martial law regime.
"I suggested strengthening the Supreme Judicial Council. There should be a supervisory agency under the council," Justice Mustafa Kamal said.
Suggesting a measure to strengthen the Supreme Judicial Council, Amir-Ul Islam said the parliament's role in this regard can be defined.
Talking to reporters after the talk, Dr Kamal Hossain said he stressed the need for carefully examining the issue of appointments and removals of SC judges.
He also urged for forging a national consensus regarding constitutional amendment. He suggested formation of a constitutional commission, and taking people's opinions about amending the constitution.
About the state religion, almost all of the jurists recommended scrapping of the constitutional provision that gives Islam the status of state religion. Islam was made the state religion through the constitution's 8th amendmentin 1988.
"Religion is for the people, not for the state. Every citizen will practice their own religion in peace and harmony," Barrister Amir said.
Barrister Rafique-ul Huq said, "We suggested scrapping of the status of Islam as state religion."
Asked about the matter, former chief justice Mustafa Kamal said he told the special committee not to keep any 'ism' in the constitution.
Special Committee member Hasanul Haque Inu said the former chief justice categorically spoke against keeping any 'ism', and cited Islamism, socialism, and secularism.
Former chief justices Md Taffazzul Islam, and Mohammad Fazlul Karim, and constitutional experts Mahmudul Islam, Barrister Ajmalul Hossain QC, and Attorney General Mehbubey Alam also participated in the talk that started at 11:30am and ended at 6:00pm.
The special committee is scheduled to hold a talk with the main opposition BNP this morning, and in the afternoon it is scheduled to sit with other political parties representing the parliament except ruling Awami League, with which the committee is scheduled to sit tomorrow morning.