Daily Times

The Supreme Court of Bangladesh had declared the sixteenth amendment to the Bangladesh Constitution ‘illegal’. The amendment was aimed at impeachment of judges of the apex courts based on misconduct or incapacity based on two-thirds majority. Immediately after the decision, questions surfaced in Pakistan about whether a similar constitutional amendment could be introduced to the 1973 Constitution or not. The tenth Parliament of Bangladesh passed a sixteenth Constitutional amendment which was unanimously passed by the members of the Parliament with a backing of 327 members of the Parliament; no lawmaker voted against the amendment either in voice vote or in division vote.

The amendment was challenged in the High Court (HC) that declared it un-constitutional and illegal, and against the principles of separation of powers, and independence of the judiciary. The decision of the special bench of the High Court with three judges was assailed in the Supreme Court (SC) by the incumbent government of Bangladesh led by Hasina Wajid — which delivered an extensive ruling — scrapping it off completely.

It is pertinent to note that Bangladesh adopted its first Constitution in 1972 after independence in 1971. Prior to introduction of sixteenth amendment, it had been amended fifteen times. In the 1972 Constitution, Parliament had the mandate of deciding the tenure and removal of the top judges. In 1975, the President was given a mandate of dealing with the appointment and removal of the top judges through the fourth amendment in the 1972 Constitution.

The Supreme Court of Bangladesh in its ruling opined that neither individual judges nor the judiciary should be accountable to the executive. After declaring the sixteenth amendment illegal, the judges’ appointment and removal related matters automatically transferred to the Supreme Judicial Council as the proposed amendment was void. In the Pakistani context, is it possible to introduce such constitutional amendments which give power to the Parliament to impeach or remove any judges of the superior courts on basis of misconduct based on two-thirds of majority? Needless to say, in the wake of 18th Constitutional amendment to the Constitution of 1973, Article 175 (A) was introduced into the Constitution — providing a two-tier process for making appointments of Judges in the superior courts. The names of the judges were supposed to be nominated by the Judicial Committee and they were to be confirmed by a bi-partisan Parliamentary Committee. However, the Supreme Court, under the guidance of former Chief Justice of Pakistan, Mr Iftikhar Chaudhry entertained manoeuvred petitions challenging the procedure in Article 175 (A). Contrary to most norms and practices and in violation of the principle of the separation of powers, the Supreme Court practically ‘remanded’ the case to the parliament for reconsideration. As a result, the Parliament’s amendment of Article 175 (A) was done through the 19th Constitutional amendment.

The Supreme Judicial Council has the mandate of entertaining references filed against the judges of the superior courts but it is on record since the 1970s that not a single judge of the superior courts has been ousted by the council on the basis of misconduct. This has got to do with the clean record of most superior court judges. Most recently, a judge of the Lahore High Court resigned because of pending references in the Supreme Judicial Council. Appropriate actions should have been taken after the Supreme Judicial Council dismissed him following an inquiry into his misconduct.

If allegations of corruption and money laundering can be brought against the legislators then why can’t such allegations be brought against the judges of lower and higher courts?

The Supreme Judicial Council System is not consistent with democratic norms and practices. It is contrary to the recognized principles of justice because the system is tantamount to holding a self-trial. Generally, it is believed that no one should be the judge of his own case. In parliamentary democracy, the wishes and decisions of the parliament prevail and in some particular cases, the suggestions of others including the judiciary may be ignored. The issue in Bangladesh is likely to yield good results because the three organs of the state will develop a process of separation of powers.

After the Panama case decision, the former PM of Pakistan has started asking questions about why he was declared disqualified. This question indicates his intention of bringing a constitutional amendment through political powers to curtail the power of the Supreme Court of Pakistan vested in Article 184(3) of the Constitution. A couple of weeks ago, the Government heard a reference against the judge of the apex court who declared the former Prime Minister still qualified to be the Prime Minister.

The argument of holding self-trial has substance and the system of supreme judicial council in Pakistan and Bangladesh have delivered no better results with the appointment of judges and removal based on misconduct. If allegations of corruption and money laundering can be brought against the legislature then why can’t such allegations be brought against the judges of the lower and higher courts. The decision of the Supreme Court of Bangladesh may have an effect in Pakistan as well. The debate in Pakistan concerning the judiciary and parliament may bring a constitutional amendment concerning the removal of judges by the parliament. If the judiciary can disqualify a Prime Minister why can’t the parliament impeach a judge on account of misconduct or corruption?

The writer is an attorney based in Lahore, he can be reached at greenlaw123@hotmail.com

Published in Daily Times, September 12^th 2017.