The Constitution (16th Amendment) Bill 2004 concerning the provision for the impeachment of judges, which has already been approved by the cabinet, is awaiting processing in the parliament for enactment as an amendment to Article 96 of the constitution.

Article 96 of the constitution of 1972 says: ‘A judge shall not be removed from his office except by an order of the president passed pursuant to a resolution of parliament supported by a majority of not less than two-thirds of the total number of members of parliament, on the ground of proved misbehaviour or incapacity.’

The article was amended and adopted through the fourth amendment to the constitution by the then Awami League-led government: ‘অসদাচরণ বা অসামর্থ্যরে কারণে রাষ্ট্রপতির আদেশ দ্বারা কোন বিচারককে তাহার পদ হইতে অপসারিত করা যাইবে।’ (A judge may be removed from his office by order of the president on the ground of misbehaviour or incapacity.) The issue after the fifth amendment introduced by President Ziaur Rahman stands as follows: ‘There shall be a Supreme Judicial Council, in this article referred to as the council, which shall consist of the chief justice of Bangladesh, and the two next senior judges.’

It is thus crystal clear that the Awami League government in 1975 amended Article 96 of the 1972 constitution with the fourth amendment whereas the fifth amendment to introduce Supreme Judicial Council, a progressive one, was brought in by Ziaur Rahman in order to amend the fourth amendment as it stood that time.

Should the current government have a pious wish, they should logically. revisit the whole gamut.

India’s constitution is one of the prime sources in drafting our 1972 constitution. India, meanwhile, adopted in 1968 the Judges (Enquiry) Act to amend the said issue to include 100 members of the lower house and 50 members of the upper house (in the bicameral system) who can bring such proposal and, if agreed on, the chief justice of the Supreme Court, one judge of the Supreme Court, another judge from the High Court and an eminent lawyer nominated by the parliament speakers to preside over the Supreme Judicial Council will constitute the Supreme Judicial Council.

I could not but quote here a couple of lines from our national poet Kazi Nazrul’s: “বিশ্ব যখন এগিয়ে চলছে আমরা তখনো বসে বিবি-তালাকের ফতোয়া খুঁজছি ফেকা ও হাদিস চষে।”
(Roughly translated into English: ‘While the world forges ahead in quest of qualitative life | We turn over pages of the fiqh and the hadith to look for excuses how to divorce wife.)
What a pity!

We have a very few options such as: (a) to continue with Article 96 having the provision of the Supreme Judicial Council or the option may be further updated with improved modifications/reforms; or (b) we may also consider Article 96 of 1972 with substantial modifications through major amendments/reforms.

The adoption of Option A needs reforms such as: (a) the separation of the judiciary to letter and in spirit; and (b) my bills — bills to amend (i) Article 96 regarding the embarrassment of judges and (ii) Article 95 and 96 for the appointment of judges — that I submitted to the parliament (also published in my book Parliament and I and in some newspapers) may be adopted with further modifications as necessary.

The adoption of Option B needs reforms such as: to avoid hassle for the time being, we may consider the Indian reform of the Supreme Judicial Council save that the speaker will nominate a high-profile amicus curiae to preside over the Supreme Judicial Council in consultation with the leader of the house and that of the opposition. Until we change our unicameral system of the house to a bicameral one, we continue with the chief justice and two next senior judges of the Supreme Court to remain as other members of the Supreme Judicial Council. Alternatively, we may also revert to the 1972 constitution empowering the parliament for the impeachment of judges; we would, however, for all fairness, need obviously the following reforms, among others, in order to guard off any possible coercive actions by the parliament to bring about internal checks and balances. Key points are as follows:
The existing first-past-the-post electoral system should be changed to a proportional representation system as is the case with New Zealand; ‘No’ vote system should be introduced; Article 70 should be repealed and made applicable to case of no-confidence vote to avoid horse-trading and at the most be applicable to the passage of the budget; members of parliament need to follow code of conducts, ethics and business interests and make a declaration (My bill submitted to the parliament in 2003, published in my book Parliament and I may be adopted with further modifications, if necessary). Amongst others, this may reduce possible coercive actions against judges and ensue more objective and fair judgements.

Article 142 did never contain any provision of ‘referendum’ until the fifth amendment introduced by Ziaur Rahman, under Article 142 1(b), IA, IB, IC regarding the amendment to certain provisions of the constitution important for people and the nation.

Unfortunately, judgements on the fifth amendment by both the Appellate Division and the High Court Division of the Supreme Court uncondoned the ‘referendum’ and the 15th amendment has thus been passed. People (the voters) are, in general, now antagonistic and feel disgraced whereas the said judgement did not hesitate to condone ‘Bismillahir Rahmanir Rahim’ and ‘Bangladeshi’ as our nationality as well as Article 96 as introduced by Ziaur Rahman by way of the fifth amendment but referendum did not merit in the said judgement. Further, people now pass through an enigma in finding that the chief justice has recently advocated the amendment to the current Article 96 in line with that of the 1972 constitution. Article 142, therefore, needs to be amended in order to incorporate a provision for a referendum.

We all urge the government not to revert to the provision of Article 96 of 1972 but adopt the reform programme as suggested above, if necessary with modifications that are fair to people, and let such reform programme be part as a highlight in the annals of our history for constitutional amendments.

Abdul Mannan, a former state minister for civil aviation and tourism and textiles, is president of the South Asian Federation of Accountants. (New Age)