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REVIEWING THE VIEWS : Impeachment of Judges

How far the initiative is constitutional?

Ariful Islam Siddiquee
The initiative taken by the government to restore the impeachment power of the judges to the parliament scrapping the existing provision of supreme judicial council draws public attention and stirs a debate among the people of legal arena. Whether vesting the impeachment power to parliament creates any impediment to judicial independence? Judicial independence without proper judicial
accountability mechanism may generate judicial anarchy. In principle, we believe that the legislature as a body of elected representatives with a high degree of independence from the other branches of the government perform their constitutional duties without allowing their activities to be distorted by partisan considerations. But in reality, we are now not in a position of sound democracy. For this reason, vesting the impeachment power to parliament may be a risky one.
The high-ups of the ruling government try to justify it by saying that parliament is sovereign and must have the power to impeach the Supreme Court judges. Now
the question can be raised, does our legislature enjoy the supremacy over other two organs of the state? Article 7 of our constitution indicates the supremacy of the constitution in Bangladesh. The three organs of the state i.e. parliamentary, judiciary and executive runs their functions within the periphery of the constitution. So, the parliament is not sovereign. Article 7 further says, if any law made by parliament is inconsistent with this constitution, it shall be declared void. The responsibility of this declara-
tion must be exercised by the Supreme Court since the Supreme Court is the guardian of the Constitution. Parliament stands equal footing with other two organs of the state. So, why judiciary is accountable to legislature?
The government intends to restore the article 96 of the original constitution to return the impeachment power to lawmakers. Article 96(2) provides "A judge shall not be removed from his office except by an order of the president passes pursuant to a resolution of parliament supported by a majority of not less than two-thirds of the total number of members of parliament, on the ground of
proved misbehaviour or incapacity."
Further, Article 96(3) stipulates that parliament may by law regulate the procedure in relation to resolution, investigation and proof of the misbehaviour or incapacity of a judge. The misery is that no government had taken any step to make such law since our independence. Absence of such law creates opportunity of misusing this power arbitrarily. Sri Lanka has set a distortion example in front of our eye. The Chief Justice of Sri Lanka, Dr Shirani Bandaranayke, was impeached by the vote of government members of that nation's parliament on 10th January 2013, after a report from a Select Committee of seven government ministers declared her guilty of misconduct. It was condemned by all section of judicious people. Besides, Article 70 of our constitution frustrates the democratic practice of members of parliament.
Let's have a check with provisions of sound democracy. Article II, section 4 of US constitution provides that all civil Officers including judges of the United States, shall be removed from Office on the ground of Treason, Bribery or other high Crimes and Misdemeanours. In 1980 the US Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act. This empowers federal judicial councils, which consist of certain judges, to investigate complaints that any federal judge or magistrate "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts". The councils may not remove a judge, but may send to a coordinating body called the Judicial Conference, which may forward to the House of Representatives, any information indicating that a judge has engaged in conduct which might constitute ground for impeachment.
The Indian constitution contains the
same type of provision of impeachment power as our original constitution. But India under Article 124 (4) of the constitution formulated The Judges (Inquiry) Act, 1968 prescribing the procedure for the investigation and proof of'misbehaviour' and 'incapacity' of judges. Under the procedure laid down in the Act, the responsibility of inquiry of 'misbehaviour' or 'incapacity' of the judges is given to a committee of three members, one each from the Chief Justice or other Judges of the Supreme Court, Chief Justices of the High Courts and distinguished jurist. The Committee will frame definite charges against the Judge on the basis of investigation and submit its report before the respective House or the Houses stating its findings for consideration. So, the impeachment process is semi judicial. It creates check and balance between the two organs.
Finally "Latimer House Principles" agreed by Law Ministers of the Commonwealth and by the Commonwealth Heads of Government provides "Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior. "This requires clear proof of misconduct that renders them unfit, at least in the eyes of reasonable people, to occupy the justice seat. So, the procedure of inquiry must be settled earlier.
If the government restores Article 96 of the Constitution in the running sessions of parliament, it will not only be able to impeach judges of the Supreme Court, but it will also wield the power to dismiss persons of several constitutional and semi-constitutional institutions. So, policy makers should go forward more carefully.
THE WRITER IS ASSISTANT SECRETARY AT MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS.