Aftermath of appalling 16th amendment

HUMANRIGHTSASIA

THE question of impeachment of the judges' gains momentum in view of the fact that the recently passed 16th amendment directly impinge on the doctrine of checks and balances enshrined in the Constitution. If the balance is not maintained as envisaged it might directly create an impact on the concept of judicial independence. An intense constitutional debate, managed to capture the public attention, is going on until the enactment of law through which judges will be impeached.

The concept of judicial accountability, is remarkable in the sense that a lurking suspicion emerges in many legal minds that legislature might possess an undue preponderance of influence in the judiciary. Why and for what purpose, the amendment is brought at the moment without taking any views from legal expert, raised questions before people. Moreover, public perceptions are gaining ground that Political calisthenics stomp carte blanche to grip the throat of judiciary. To get out of this perceptions before making the Act, some drawbacks must be removed and follow the precedent of full-fledged democracy to avoid any further mayhem in judicial arena.

The word “misconduct” as applicable to judges of the Supreme Court   in   articles 96 of our Constitution, means conduct or a course of conduct on the part of a judge which brings dishonour or disrepute to the judiciary as to shake the faith and confidence which the public reposes in the judiciary. It is not confined which are contrary to law. It is not confined to acts connected with the judicial office. It extends to all activities of a judge, public or private to criminal acts or to acts prohibited by law. In all countries, a Judge cannot be guilty of misconduct if the allegations relate to the merits of a judgment or order. So, there is a grey area where it is not possible to decide whether the allegations in a complaint are serious or not. The government must be of the view that proof must be 'proof beyond reasonable doubt' as regards all types of charges which come before the Judicial Council. There is need to incorporate a definition of the words 'misbehaviour' and 'incapacity'.

According to article 70 of our constitution, neither an MP can put forward his strong dissenting opinion nor can he/she vote against the party line. As a result of impeachment, no matter how unfair it may be, gets quickly passed. The ruling party always knows that it is not going to be defeated by motion of no-confidence, for no member (MP) of the majority party has the right to vote against the party line. So, this provision should amend immediately.

Besides, article 48(3) empowers the president to exercise all of his functions with the advice of the Prime minister except the appointment of Prime minister and Chief Justice. As a result, if inquiry commission of the judges finds someone guilty, President cannot nod his consent, if the Prime Minister doesn't wish. So, it must be balanced.

It is noticeable in most of the country of sound democracy that inquiry commission is mainly formed by former or current judges. If the government decides to form the inquiry cell among the MPs, the academic and professional background of legal knowledge must be confirmed. Otherwise, it crops up blunder over judiciary.

In India, along with the existing Judges Inquiry Act, 1968, two more proposed Acts were drafted by the Indian Law Commission, Which can be a good example for drafting our proposed Act of Impeachment. The Judges (Inquiry) Bill, 2005 was drafted by and examined by the Indian Law Commission.  It Introduced a new concept of 'complaint procedure' in addition to the earlier 'reference   procedure' contained in the 1968 Act. In a 'complaint procedure' a complaint can be made by any person to Judicial Council against Judges of the Supreme Court. If the allegations are proven, the National Judicial Council may impose minor measures or recommend the removal of the judge. Removal of a judge shall be through impeachment by Parliament. Though it is lapsed now, but the new concept might be a useful one.

Moreover, The Judicial Standards and Accountability Bill, 2010 in India, tried to lay down enforceable standards of conduct for judges. The Bill establishes three bodies to investigate complaints against judges: the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an Investigation committee. National Judicial Oversight Committee will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges and also the power to impose minor measures. Scrutiny Panel will be constituted in the Supreme Court and High Court. It shall consist of a former Chief Justice and two sitting judges of that court.

Investigation Committee will be set up by Oversight Committee to enquire into complaints. They will also be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

So, the lawmakers should be poignant over their whimsical decisions to formulate a new law.

The writer has completed his LL.M from University of Dhaka