A. Mannan :
The said Bill has already been approved by the Cabinet and is awaiting processing in Parliament to pass, 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 misbehavior or incapacity.”
The said Article 96 was amended and adopted through the Fourth Amendment by the then AL Govt. as follows :
“Am`vPib ev Amvg‡_©¨i Kvi‡Y ivóªcwZi Av‡`k Øviv †Kvb wePviK‡K Zvnvi c` nB‡Z AcmvwiZ Kiv hvB‡e|”
The issue after the Fifth Amendment introduced by President Zia stands as under :
“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 AL Govt. in 1975 amended Article 96 of 1972 by their Fourth Amendment whereas Fifth Amendment to introduce Supreme Judicial Council, a progressive one, was brought in by Zia in order to amend the Fourth Amendment as it stood at that time.
Should the present Govt. have a pious wish, they should logically. revisit the whole gamut.
India’s Constitution is one of our 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 (a bicameral system) who can bring such proposal and, if agreed to, then Chief Justice (CJ) of the Supreme Court (SC), one Judge of the SC, another from the High Court (HC) and an eminent lawyer nominated by the Speaks to preside over the Supreme Judicial Council (SJC) shall constitute the SJC.”
I could not but quote here a couple of lines from our National Poet Kazi Nazrul’s :
Òwek¦ hLb GwM‡q Pj‡Q Avgiv ZL‡bv e‡m
wewe-Zvjv‡Ki d‡Zvqv LyuRwQ †dKv I nvw`m P‡l|Ó
When translated into English it may be said, ‘While the world is forging ahead in quest of qualitative life,
We are turning over pages of Feka and Hadith to look for excuses how to divorce one’s wife.’
What a pity it is !
We have a very few options like :
A. To continue with Article 96 having the provision of S.J.C. or above ‘A’ may be further updated with improved modifications / reforms.
B. We may also consider Article 96 of 1972 with substantial modifications through major amendments / reforms.
Reforms needed if above A is to be adopted :
(a) Separation of Judiciary in letter and spirit.
(b) My following Bills submitted to Parliament, published in my book ‘Parliament and I’ as well as in some news papers may be adopted with further modifications as are necessary.
(i) Bill to amend Article 96 regarding embarrassment of Judges.
(ii) Bill to amend Articles 95 and 96 for appointment of Judges.
Reforms needed if B above is to be adopted :
To avoid hassle for the time being we may consider the Indian reform of S.J.C. save that the Speaker shall nominate a high profile Amicus curiae to preside over the S.J.C. in consultation with the Leader of the House and that of the Opposition. Until we change our monocameral system of the House to a bi-cameral one we continue with CJ, and two next senior Judges of the SC to remain as other members of the S.J.C.
Alternatively, we may also revert to the 1972 Constitution empowering Parliament
for impeachment of Judges, we would however, for all fairness need obviously the following reforms, inter alia, in order to guard off any possible coercive actions by Parliament to bring about an internal check and balance system. Key points are as follows:-
Election system be changed from the existing system of first past the goal post to a more representative i.e. proportionate representation – e.g. New Zealand system.
To introduce ‘Yes or No’ vote system.
Article 70 be repealed and made applicable in case of no-confidence vote to avoid horse trading and at the most be applicable in Budget passing.
MP’s have to follow code of conducts, ethics and business interests and make a declaration. Ref: My Bill submitted to Parliament in 2003, published in the 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 judgment.
Article 142 did never contain any provision of ‘Referendum’ until the Fifth Amendment introduced by Zia, under Article 142 1(b), IA, IB, IC regarding amendment of certain provisions of the Constitution important for the people and the nation.
Unfortunately the judgments on the Fifth Amendment by both the SC (AD) and SC (HD) uncondoned the ‘Referendum’ and the Fifteenth Amendment has thus been passed, the people (the voters) now are, in general, antagonistic and feel disgraced, whereas “Bismillahir Rahmanur Rahim” and ‘Bangladeshi’ as our nationality as well as article 96 as introduced by Zia under Fifth Amendment, the said Judgment did not hesitate to condone, but Referendum however, did not merit in the said Judgment. Further, people now pass through an enigma in finding that CJ of SC, HD and CJ of the SC AD (the same Hon’ble Justice), of late, advocated surprisingly for amendment of present Article 96 to that of 1972. The Article 142, therefore, needs to be amended in order to incorporate provision of Referendum.
We all urge upon the Govt., in a fitness of things not to revert to the provision of Article 96 of 1972 but adopt the reform programe suggested above, if necessary with modifications that are fair to the people objectively and let such reform programe be a part as a highlight in the annal of our History for constitutional amendments.
(Abdul Mannan is a former State Minister, Ministry of Civil Aviation & Tourism and Textiles. He is currently the President, South Asian Federation of Accountants (SAFA) E-mail : [email protected], mmfedamm @gmail.com)
