Judging the judges

Courier Briefing
Thursday, May 5th, 2016


The Cabinet’s approval of a draft law that empowers parliament in the matter of the removal of judges of the Supreme Court – by constituting a framework for it – makes for a significant moment. At a time when judicial independence is under the microscope, alongside other markers of a working democracy, it bears scrutiny especially as a follow up to the 16th Amendment to the Constitution in September, 2014. That gave parliament the power to remove judges of the Supreme Court, and advised it to devise a method for such removal. It must be said, the government has moved with haste towards the enshrinement of such a method. Much more haste than successive governments have shown over the years towards devising a framework for the appointment of judges.


It happened with the Cabinet’s final approval on April 26th of the draft of ‘The Supreme Court Judges (Investigation) Bill, 2016’, with provisions to investigate allegations of ‘misconduct’ by the judges of the High Court and the Appellate Division of the Supreme Court, and their impeachment by parliament. The proposed law has also kept a provision for the ‘honourable exit’ of a judge of the higher court – the Appellate Division and the High Court Division of the Supreme Court – if he or she is found guilty of ‘misconduct’. The approval was given at the regular weekly meeting of the cabinet held at Bangladesh Secretariat with Prime Minister Sheikh Hasina in the chair.


After the meeting, cabinet secretary Mohammad Shafiul Alam briefed reporters. He said the draft law had been placed by the Legislative and Parliamentary Affairs Division as it was a ‘constitutional obligation’ under section 96(3) of the constitution following its 16th amendment. In the amendment, he said, sub-sections 2, 3 and 4 of section 96 were replaced by amending the sub-sections 2, 3, 4, 5, 6, 7 and 8. As per the amendment, there is a provision for conducting a probe if any allegation is raised against any judge of the Supreme Court and framing a law to investigate the allegation. “The law has been brought following the constitutional obligation,” he said.


The cabinet secretary said the draft law was approved aimed at reverting to the main law of the original constitution of 1972 to ensure a legislative process regarding removal of the Supreme Court judges like all other democratic nations around the world, reported UNB.


He said a similar law was in the original constitution of 1972 and it was changed after 1975 incorporating a provision of forming Supreme Judicial Council. Such council does not exist now in any country except Pakistan, the secretary said.


Under the draft law, any aggrieved person can submit a written application to the Speaker of the Jatiya Sangsad against any judge of the Supreme Court for his or her alleged misconduct. The speaker will form a ‘preliminary committee’ with not more than 10 Members of Parliament to investigate if there is any justification of allegation while the committee will submit its prima-facie report before the Speaker within seven days. If valid grounds are established for the allegation, the cabinet secretary said the speaker will constitute a three-member independent investigation committee with a former chief justice being its head along with an ex-attorney general and an eminent citizen of the country or a jurist as its members to probe the allegation.


Upon completion of the investigation, Alam added, the Jatiya Sangsad will hold a discussion on the report to be submitted by the committee. The recommendations adopted by the Jatiya Sangsad with two-thirds majority will be sent to the president for his or her signature to remove a judge if he or she is found guilty. About false and baseless allegations of misconduct against any judge of the Supreme Court, he said, the person concerned will face two years of imprisonment or a fine of maximum Tk 5 lakh.


The draft law has been prepared after “detailed consultations” with stakeholders concerned, including the judges of the Appellate and High Court Divisions, said the cabinet secretary, adding that there is still scope for suggestions to be put forward in the draft law by stakeholders concerned. After further discussion with the relevant stakeholders, the draft law will again be placed before the cabinet for its final approval, the cabinet secretary said. According to him, the proposed law doesn’t contain anything which would curb the independence of the judiciary.


First remover advantage


In his immediate reaction, Law Minister Anisul Huq told BBC Bangla that this initiative (for enacting the law) would strengthen democracy as well as ensure accountability and transparency. “Our aim is to ensure that no one can dishonour any judge,” he said.


Barrister M Amir-ul Islam, a member of the drafting committee of Bangladesh Constitution, 1972, said the government should have made a law first for appointing judges as per the constitutional provision of 95(2) [C]. “This should be our first priority. No government or parliament has ever addressed this. Now we are debating on the question of the removal of judges,” said the eminent jurist.


Constitutional expert Dr Shahdeen Malik also lamented the lack of any initiative with regards to a law setting out a framework for the appointment of judges. “One can only point to the lack of qualified jurists who also happen to be politically active. Most of the lawyers we find engaged in politics are not good enough to win coveted appointments without political patronage,” Dr Malik said.


The provision for the enactment of a law relating to the appointment of judges is in fact over 40 years old. Article 95(2) of the Constitution stipulates that “A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and (a) has, for not less than ten years, been an advocate of the supreme court; or, (b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or (c) has such other qualifications as may be prescribed by law for appointment as a judge of the Supreme Court.” The last bit is taken as the provision for a law to be enacted for the purpose.


It is the focus on the removal, rather than the appointment, that is troubling. Since assuming office in early 2009, the current Awami League-led government has displayed no intention of addressing the latter. According to a study by Dr Ehteshamul Bari, deputy director of the Juris Doctor (JD) Program at Deakin University in Melbourne, Australia, in its first four years till February 2013, the AL government appointed 55 judges to the High Court Division of Bangladesh. According to Dr Bari’s analysis though, the criteria for appointing these judges “has, in most cases, not been by merit, but allegiance to the regime.” Controversies raged over the appointments of 41 judges that were confirmed during the last BNP-led 4-party alliance government’s reign from 2001-06 as well,  which had appointed 45 additional high court judges.


There were allegations of partisanship and nepotism in relation to most of the 41 confirmations. Some of the 41 judges were said to have been active leaders of the BNP. One additional judge happened to be a BNP lawmaker in the 6th parliament and there were specific allegations of corruption against at least one judge, according to the June 9, 2007 issue of Law & Our Rights, the long-running weekly supplement on legal issues of the Daily Star.


Turning our eye to the AL appointments, we find that out of 17 judges who received appointment to the High Court Division in April 2010, nine reportedly acquired a Third Class in their LLB exams, while 13 had Third Class/Division in more than one of the public exams in their lives. Furthermore, several of these judges who were actively involved with the Bangladesh Awami Lawyers Association, a platform of pro-Awami League lawyers, did not have any experience practicing in the Appellate Division of the Supreme Court. Bangladeshis will not have forgotten the unprecedented move by the then Chief Justice, in October 2010, of refusing to administer the oath of two of the 17, although they did get administered later once Justice ABM Khairul Haque took office.


Ironically, it would have to be the judges deemed to have won appointment on the strength of political patronage who would probably be prime candidates to be put through the process set out in the draft bill. But for that to happen, it would first have to make it into the law books.


Hold your horses


In the cabinet meeting on April 26, Public Administration Minister Syed Ashraful Islam is said to have raised the question of what was the urgency to place the draft bill in the Cabinet, when the High Court is set to give its verdict on the 16th amendment on May 5 (after Dhaka Courier goes to press), sought by a writ petition. If the High Court strikes down the amendment, it would preclude the need for bill. If on the other hand, the High Court verdict goes in favour of the government, it would seemingly drive momentum towards the presentation of the bill in parliament, for passage into law. Law Minister Anisul Huq has said on March 2, he personally presented a copy of the draft bill to the Chief Justice and sought his opinion on it. The Chief Justice refrained from giving any opinion on the draft bill as the High Court verdict on the writ petition against the 16th amendment was pending.  The government’s urgency in driving forward ‘The Supreme Court Judges (Investigation) Bill, 2016’ would seem to be especially unfortunate in light of the pending High Court verdict. It could feed the impression that the Cabinet’s approval of the bill is meant to sound out the government’s preference, and hence influence the verdict.


Before getting to the pros and cons of the bill approved by the Cabinet, it is imperative to recognise the sheer importance of getting the framework right. To have these ramparts of the judicial system caught up in legal proceedings defending themselves against allegations of impropriety or incapacity would be most unseemly for the cause of justice delivery. To make it too easily accessible would be to invite frequent attacks upon the integrity of the highest court in the land. At the very least, it would seem prudent to invite the opinions of lawyers and judges on what form such a method should take.


As one can tell from the law minister’s account, the Chief Justice witheld opinion on the draft bill on very prudent grounds – due to it being part of a sub judice matter. It invites the question, how could any citizen be expected to give their opinion in such a situation?


Out of commission


The day after the Cabinet’s approval, ex-Chief Justice and current Chairman of the Law Commission ABM Khairul Haque came out in support of the bill. This was to be expected of course, as the Law Commission was the body that drafted it.  Justice Haque said the draft bill might provide the opportunity to parliament to ‘pick and choose’ (a strange choice of phrase, he possibly meant to convey the choice would be made more judiciously) a former Chief Justice or a retired Appellate Division judge to head a three-member committee to investigate allegations of misbehaviour or  incapacity that could be brought against Supreme Court judges.


Replying to questions at a news conference he called at his office on April 27, Justice Haque also said that the proposed committee comprising a former Chief Justice or a retired Appellate Division judge, a former attorney general and a social elite or jurist for probing allegations against errant judges would ensure ‘maximum neutrality’.


The functions of the Law Commission are described in Section 6 of the Law Commission Act, 1996. Under the Section the functions of the Commission will be as follows:


(a) to identify the causes of delay of civil and criminal cases in various  courts and with a view to accelerate their disposal and ensure justice as quickly as possible:


(1) to recommend amendment of laws concerned or enactment of new laws in appropriate cases after examination; and so on.


In light of the issues coming into play, surely nothing could be more prudent for the Law Commission at this stage, than to take on the task of championing a bill that presents a framework for the appointment of superior court judges, with the same amount of professionalism and urgency displayed in drafting the one to remove them.



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