Chief Justice Sinha frets about constitutional crisis

Chief Justice Surendra Kumar Sinha is worried that a crisis may be created if the question of removing judges is raised in a parliament in which no party enjoys an absolute majority.

Staff Correspondentbdnews24.com
Published : 25 May 2017, 02:51 PM
Updated : 25 May 2017, 05:49 PM

"We preserve the most sacred law (Constitution). What will happen if something is incorporated in it, which can create a vacuum? What will the judiciary do then?" he asked.

"What will happen if serious allegations are brought against a judge when there is no two-thirds majority in parliament? This worries me," he said.

The chief justice was speaking during the hearing of the state appeal against a High Court verdict that had declared illegal the 16th amendment to the constitution.

That amendment, passed on Sept 17, 2014, returned to parliament the powers to remove top court judges by a two-thirds majority on grounds of incompetence and misconduct.

The High Court declared the amendment illegal last year after hearing a writ petition filed by a group of lawyers.

The government had been making a law on the removal of judges by parliament following the amendment, but the process stalled after the High Court ruling.

On the seventh day of hearing on Thursday, the Appellate Division heard the opinions of the amici curiae after the state and the writ petitioners.

The Supreme Court appointed 12 senior lawyers as amici curiae to have their suggestions on this significant constitutional matter.

Amicus curiae Barrister Rokanuddin Mahmud recommended instituting a Supreme Judicial Council. His view is: If the departments have the powers of removal in case of administration and others, why should it be different for the judiciary?

In reaction to the state's argument that the powers to remove judges are vested in parliament in a number of countries, Barrister M Amir-Ul Islam said the issue is now being debated in those countries.

Amicus curiae retired judge Justice TH Khan, a vice-chairman of the BNP, questioned the validity of the parliament that passed the 16th amendment.

Attorney General Mahbubey Alam, who had heated arguments with the chief justice on the previous days of hearing of the case, was also present.

The seven-strong appeals bench adjourned the hearing until the next working day, which is Sunday.

'Why only judges, not secretaries, police officers?'

Barrister Mahmud, a former president of the Supreme Court Bar Association, questioned the objective of handling the powers to remove top judges to the lawmakers.

Chief Justice Sinha expressed his worries over the crisis when Mahmud started presenting his statement.

Mahmud criticised comments by MPs in parliament and said it would not be logical to give them the powers to remove judges.

"I've seen newspaper reports on MPs' comments like: "Who made you judge?". Will you leave the powers (to remove judges) with those who speak in this manner in parliament? Will the judiciary be independent then?"

He criticised the speaker for not stopping the MPs from discussing issues on Supreme Court judges in parliament despite a ban.

He described how different administrations remove their officials. "Who removes people in the civil service? Police officials? Secretaries? Do you do it in parliament?"

"No one but their superior officers remove them. Joint secretaries investigate assistant secretaries, the high-up in police do so as well. The military has its own disciplinary committee. Then why will yours (judges' removal issue) be sent to parliament?"

Mahmud expressed concern that a disorder would be created in the absence of a Supreme Judicial Council.

"You (chief justice) won't be able to tell the High Court judges anything once it (16th amendment) gets permanent. You won't be able to say anything if they come at 11am," he said.

"And again, will parliament see it if a judge speaks to someone in his or her chamber? Who will inform parliament then?"

'The parliament which amended the constitution is illegal'

Khan said the election, through which the parliament was formed and that subsequently brought the 16th amendment, was illegal.

He suggested that the issue of the 13th amendment be settled before the 16th amendment is discussed.

"We should see it contextually," he said.

The election-time caretaker government provision was introduced through the 13th amendment, and it was repealed in the 15th amendment.

Khan questioned the ruling Awami League's argument that the caretaker government provision was repealed following court order.

He also questioned the signing of the verdict by former chief justice ABM Khairul Haque after retirement.

"When he issued the short order 16 months before his retirement, he said the 10th and 11th parliamentary elections should be held under caretaker government. It was not in the main verdict.

"There is no legitimacy to that verdict because he was not a judge when he issued the verdict. He did not issue it as a judge," said Khan.

He also said the two other judges of that bench should not have signed the verdict after retirement.

 "The four others, the incumbent chief justice, Justice Abdul Wahhab Miah, Justice Nazmun Ara Sultana and Justice Imman Ali issued different verdicts.

"They declared the 13th amendment legal in their verdicts. Now the question is: Who repealed the 13th amendment?"

He also questioned the passing of the 15th amendment in parliament before the full verdict on the 13th amendment was published.

"But the government said the 13th amendment was repealed by the court, not by it," he said.

He recommended strengthening the Supreme Judicial Council by making it a 'functional body, not a nominal body', in order to establish the rule of law.

Khan was a minister in Ziaur Rahman's cabinet when the Supreme Judicial Council was introduced.

The power to remove judges was vested in Parliament in the 1972 Constitution enacted after independence. This power was transferred to the president through the 4th Amendement during Bangabandhu Sheikh Mujibur Rahman's tenure.

During Ziaur Rahman’s rule, the power was handed to the Supreme Judicial Council through the 5th Amendment, which validated all the martial law orders issued by the post-1975 rulers including Zia.

The amendment was later repealed by the Supreme Court while the power to remove judges returned to parliament through the 16th amendment.

'Parliamentary removal not effective'

Barrister M Amir-Ul Islam claimed the system of removing judges by parliament is not working in other countries.

The leader of pro-Awami League lawyers started presenting his statement on Wednesday and resumed on Thursday.

He told the media after the hearing: "What we see across the world is that the judiciary makes a decision when any incident of misconduct against a judge is reported. That's what a Supreme Judicial Council is."

"Parliamentary removal is not working in any country. Most debates over the issue are created in India, Sri Lanka and Malaysia. Most of the countries have returned from parliament (provision to remove judges). They have handed the job over to Supreme Judicial Council. It is the judiciary there that tries judges for misconduct," he said.

Barrister Islam was a member of the committee that drafted the constitution in 1972. The powers to remove judges were vested in parliament in that constitution.

Asked why he is against returning the powers to parliament now, he said, "Actually we could not form the judiciary at the time. We were still searching for a chief justice on Jan 11 after Bangabandhu returned on Jan 10, 1972. Someone had to take (administer) the oath."

"We made Sayem (Abu Sadat Mohammad Sayem) chief justice. But later he became the president during a military ruler's regime.

"We could not build the judiciary due to time constraints back then. We handed (the powers to remove judges) to parliament for the time being. Because nothing but parliament was in place then," he added.