When the Supreme Court announced the verdict scrapping the 16th amendment to the constitution, law minister Anisul Huq said that once the full verdict was published, the government would decide whether they would go for a review petition or not. A logical response, perhaps, but it was disappointing that he also questioned why the Supreme Court was obstructing a return to the constitution of 1971. It was also disconcerting to mark the reaction a week or so later, of his party and the parliamentary opposition that also is a part of the government, evoking apprehensions that the tensions between the government and the judiciary would lead to yet another crisis. That didn’t happen, much to our relief.
Many members of parliament and ministers criticised the verdict, bringing allegations against the Supreme Court judges in no uncertain terms. They attacked the chief justice personally, accusing him of misconduct. They termed the verdict as a conspiracy, casting a shade on the other judges of the Appellate Division. Yet the parliamentary Rules of Business maintain that a member while speaking should not “make any remark which reflects upon the personal conduct of the President or Judge of the Supreme Court unless the discussion is based on a substantive motion drawn in proper terms.” Yet the discussion in parliament that day reflected just how desperate the members of parliament were to force the judges to be accountable to them. They brought about allegations against the chief justice, forgetting how, upon their recommendations, 7198 cases of murder and other heinous crimes were dismissed over a span of five years (40 murder cases to be withdrawn, Prothom Alo, 2 February 2014). If taken on an overall average of members of parliament, then they each are responsible for 20 cases where the victims have been deprived of justice. Those who witnessed the tirade of the parliamentarians on TV that day, were bound to come to the conclusion that these statements themselves reflected why the rule of law would be under threat if the parliament was given the power to impeach judges.
However, the prime minister deserves thanks for remaining silent on the issue, displaying a sense of responsibility. Perhaps the law minister’s silence during the debate was also for not getting a nod from her. It is only reasonable to do that until the full verdict is published. However, had the PM or the law minister reminded fellow MPs about the Rules of Business then that unpleasant situation wouldn’t have risen. The Daily Star reminded us that this judge-bashing is nothing new in Bangladesh’s parliamentary debate (Tirade against SC: AL following in JP footsteps? by Shakhawat Liton, 17 July 2017). It said that the last such parliamentary debate was in January 1990. In September 1989 the Supreme Court partially scrapped the 8th amendment brought about by the parliament formed through the controversial elections boycotted by Awami League and BNP. In reaction to that, the Jatiya Party members of parliament spewed out venom against the Supreme Court judges. This is a strange repetition of history.
One of the main conditions to ensure the rule of law is to keep the judiciary above the influence of partisan politics. Unfortunately, ever since reverting to democracy after the 1990 mass uprising, the successive governments have kept up their political influence on the Supreme Court. During the caretaker government rule in 2008, the provision for a Supreme Judicial Council was put in place for appointment of Supreme Court judges, but the subsequent elected government allowed that to simply fizzle out, not even tabling it in parliament to be passed. Yet the Judicial Service Commission, recommended by the same caretaker government for appointment of lower court judges, was retained. What is the reason behind this double standard of the government when it comes to appointment of judges to the lower court and the Supreme Court? A Commonwealth research shows that the Supreme Court has the authority to rule on important constitutional questions on power sharing and human rights which can give rise to political debate. That is the reason the executive wing of the state tries to wield its influence over this court which can politically pollute the judiciary. So it is not difficult to understand why MPs do not have any interest in framing rules for appointment of judges.
It naturally gives rise to suspicion when the parliamentarians are eager to put the carriage before the horse, that is, when they are more interested in how to impeach judges than to appointment them. They are emotionally driven to retain the clout to both appoint and to impeach judges. The ruling party’s argument for making judges accountable to parliament has been largely based on the emotional link to our liberation war, but the truth is they are the ones who had done the biggest damage to the constitution. On 25 January 1975, by means of the 4th amendment, they handed over complete power to the president to appoint and remove judges. The sole authority of the president went back to the judiciary during the military rule, in 1977. The judiciary benefitted somewhat from the provision to form the Supreme Judicial Council.
Those who think that reverting to the 1971 constitution will solve all political problems, should take a look at the developments in world around them over the last four decades and realise that their demand is all emotion and no recognition of the new reality. The concept of the rule of law has changed significantly all over the world.
The Commonwealth countries have adopted a new policy, the Latimer House Principles. And in a broader forum, the United Nations, in 2002, has adopted some guidelines called the Bangalore Principles. It also clearly states that the judiciary should be accountable to an independent and neutral institution established to maintain the standard of the judiciary.
The Commonwealth research report referred to earlier was published on 7 July 2015. The study, ‘The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practices’, has detailed and analysed the systems of appointment and removal of judges in 53 Commonwealth countries. In 2004 the Commonwealth came up with the Latimer House Principles which govern issues such as the harmonious balancing of power and the interaction between parliament, the executive and the judiciary in democratic societies. When the Latimer House Principles were passed, several Commonwealth members within a short time formed judicial appointment commissions in their respective countries. These included India, Pakistan and Malaysia.
The Latimer House Principles maintain that a judge accused of inability or misconduct must have the right to be judged by an independent and impartial tribunal. The Commonwealth research report said that it would be better not to have separate tribunals for each separate case or individual-based tribunals, so as to reduce the possibility of any bias for or against the accused judge.
We are also forgetting that Bangladesh had committed to following both the Latimer House Principles and the Bangalore Principles. It has become a universal practice to keep issues such as the appointment, pay, promotions and removal of judges, free of influence from the executive. That is why these principles have been formulated in an international context based on the experience of various countries. Both the principles were adopted towards the beginning of this century. Everyone’s aim is to consolidate the rule of law, to move ahead. No one wants to regress.
Source: Prothom Alo
