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Judges' impeachment by JS

Govt chooses narrow path

Shakhawat Liton
INDEPENDENT courts are the hallmark of a strong democratic society. Many countries including UK, India and Canada have functional parliamentary democracy; therefore, keep reforming the process for judicial appointments along with other efforts to ensure independence of the judidaty. In these countries, judges were appointed by the executive branches of the governments, but the appointments are handled differently without the governments' exercising little or no power. Parliaments in those countries are empowered to impeach higher court judges as a means to balance state power. But the legislatures find rare occasions to exercise the powers and this has been possible for the proper appointment process that has been upgraded through reforms.
In Bangladesh, the appointment procedure is quite the opposite. The Awami League-led government has suddenly focused on the impeachment of Supreme Court judges by the parliament, instead of upgrading the judicial appointment system which could make it transparent and accountable. The government has recently approved a constitutional amendment proposal to restore the parliament's authority to impeach SC judges on ground of mis-conduct and incapacity. As a consequence, the existing constitutional provision for the chief justice-led Supreme Judicial Council for doing the job will be scrapped. The constitutional amendment bill is set to get passed in the current parliament session. The government, however, has no plan to set up any mechanism for appropriate appointments as it wants to retain the sweeping authority over appointments.
In defence, the government has cited the existing provisions for impeachment of higher levels courts' judges in some democratic countries like India, Canada, Australia and USA-where the parliaments enjoy the powers to impeach the judges. But the government clearly avoided saying anything about the mechanism for the judicial appointments in those countries. Does the government believe the mere restoration of the parliament's authority to impeach judges will improve the situation?
The UK parliament, the most powerful legislature in the world, is empowered by the Act of Settlement 1701 to remove judges of the High Court and above.
But it has never removed any English judge in over the past 300 years. To maintain and strengthen judicial independence, the Judicial Appointment Commission was set up in 2006 with the responsibility for selecting candidates for judicial office in a transparent and accountable process. The 15-members of commission are draw from the judiciary, the legal profession, non-legally qualified judicial officers and the public. On receiving the proposal from the commission, the prime minister recommends to the Queen to make the appointments.
The parliament of India has not impeached a single judge either of the Supreme Court or High Court in over the six and half a decades. One judge facing impeachment proceeding resigned before the parliament moved to dismiss him. The impeachment proceeding against that judge named Shri R Ramaswamy took place between 1991 and 93. In the end the inquiry committee found the judge guilty. In the Lok Sabha the Congress Party abstained from voting and so the motion could not be passed with requisite majority.
The Indian parliament has recently amended the constitution to build mechanism for better judicial appointments, replacing the 20-year-old collegium system of judges choosing judges, which has been under severe criticism. The amendment made provision for the setting up of a National Judicial Appointments Commission which will appoint and transfer judges to the Supreme Courts and the 24 High Courts. Chief Justice of India will head the NJAC. Besides the chief justice, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the law minister will be the other members of the proposed body.
The parliament in Canada has impeached only one higher court judge since 1867. Four other judges facing impeachment proceedings resigned to avoid dismissal. However, the government still continues to reform the judicial appointment system for avoiding controversy. About a decade ago, the appointment process was farther modified somewhat to allow for greater parliamentary, provincial/territorial and public consultations. In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee. And the committee would report their findings to parliament. This led to the establishment of an ad hoc parliamentary committee.
Subsequently, a formal Advisory Committee on Supreme Court appointments was announced, which is formed each time a vacancy on the Court occurs. The advisory committee consisted of an MP from each of the parties representing the parliament, a retired judge, attorney general, a representative of the law society and two prominent Canadians who are neither lawyers nor judges. It works from a list of seven candidates submitted to them by the minister of justice (usually in consultation with the Prime Minister) for an appointment. Then the prime minister chooses the final nominee from the committee's short list. Neither the committee nor parliament has however the power to block the prime minister's final decision.
The US president - the world's most powerful chief executive in the presidential form of government -cannot appoint Supreme Court judges at his will. The presidential appointments to the Supreme Court must first be confirmed by the US Senate. The Senate has the power to reject or block the appointment. Moreover, the confirmation proceedings usually involve a lengthy review process in which the Senate Judiciary Committee is permitted to directly question the president's nominee.
In South Africa, a judicial services commission has control over selection of candidates for the judiciary. The commission is comprised of judges, lawyers, an academic, some government nominees and parliamentary nominees. This commission appoints judges autonomously below the Supreme and Constitutional Courts. The president appoints judges of the Supreme Court and Constitutional Courts after consulting with this commission. Removing a judge requires the president to have two-thirds vote in parliament in favour of removal, and a recommendation of dismissal from the judicial services commission.
Given the above examples, it can be said that our government has in fact chosen a narrow path by focusing only the impeachment of judges by the parliament and refraining from developing the process for appointments. Will this contribute to enhance or undermine the independence of judi-daty? Does the government want to make the democracy functional without effective independence of the judidary?
The writer Is senior reporter. The Dally Star.