Chief Justice Sinha questions rationale for authorising MPs to remove judges

Chief Justice Surendra Kumar Sinha has questioned the rationale for entrusting members of parliament with the powers of removing judges from their jobs.

Political parties that do not have faith in their own MPs are empowering them to remove the judges, Sinha said.

How logical is that?

That was the question from the chief justice to Attorney General Mahbubey Alam on the fifth day of a hearing on a State appeal against a verdict to scrap the 16th amendment to the constitution.

Sinha cited Article 70 of the Bangladesh constitution that forbids MPs from voting against the party line in parliament as the threat of losing their seats looms over them.  

Arguments between the two are not unusual, though.

Lower courts have been 'taken over' and there is a similar attempt on the Supreme Court as well, Sinha told Alam.

The Supreme Court, he said, has no authority over 80 percent of the lower court judges.

"There is a district that has been without a district judge for five months. How is the judiciary being effective? Can it be effective without district judges? You have taken the Supreme Court issue to parliament. So what is left?” Sinha said.

The 16th amendment in 2014 returned to parliament the authority of removing judges over incapacity and misconduct. The High Court declared the amendment illegal following a petition by a group of lawyers.

After much banter, the two returned to discussing the main hearing, at one point of which Sinha said, "Why did you have Article 70 in the Constitution?"

"There is some history to it. There has been horse-trading in many countries," said Alam.

Sinha fired back. 

"So you can't trust them (MPs)? So how are you so sure that there won't be horse-trading with judges? Why can't you trust the members of your own party?"

After some minutes of arguing on this, the attorney general questioned the jurisdiction of the Supreme Court lawyers who challenged the 16th amendment at the High Court.

"That is not correct. Those (petitioners) who did are not unknown. They are members of this bar (lawyers' association). They can do this to preserve the judiciary's honour. What's wrong with that?" said Justice Md Abdul Wahhab Miah from the bench.          

The chief justice joined in. "They have the right to file a petition. You're saying they don’t? Then should I file it myself?

He referred to the judgment on the appointment of judges in India to point out that it was the chairman of the bar council who filed the case.

In the last leg of hearing, Attorney General Alam said a judge had spoken in the High Court verdict about the MPs having ‘criminal records’. If his statement is to be found untrue, he should be referred to the president for sacking. At this, the chief justice asked: “Can the president remove a justice even in the absence of a law?”

The state’s top law officer responded that there is no provision for Supreme Judicial Council, neither is there a law. “However, the president, being the hiring authority, can sack a judge even if there is no law.”

The cabinet had provisionally sanctioned a draft law defining the removal process following the amendment to the constitution, but the move hit a snag after the High Court verdict.

Alam’s response irked the chief justice. “What are you saying? Will the president sack a judge without a law being there? How many thousand years are you dragging things back? What do you make of the judiciary?”

“This is my opinion,” the attorney general replied. “You may touch on the issue in the judgment.”

At this, Justice Sinha rose suddenly from his seat to leave the courtroom and the other six judges of the bench followed him out of the court.