Ensuring judicial accountability
Who will judge our Judges? It is a high profile debate in Bangladesh. We know every state has constitution, some have written some have unwritten. United Kingdom is one of the exceptions which have no written constitution. They believe their Parliament is sovereign and given power to remove Judges. This power was from the 1701 Act of Settlement and is now contained in section 11(3) of the Supreme Court Act 1981. But we have seen the power had never been exercised in England and Wales.
The United State has written Constitution and it is clearly mentioned in the constitution how to remove a judge from his post. The right to impeach public officials is secured by the U.S. Constitution in Article I, Sections 2 and 3, which discuss the procedure, and in Article II, Section 4, which indicates the grounds for impeachment: "the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours." The history says that they have impeached one justice of the Supreme Court, and eleven federal judges through this process.
The Bangladesh Constitution Article 96(2) give rights “A Judge shall not be removed from office except in accordance with the following provisions of this article.” We have seen the Constitution gives guideline to form a Supreme Judicial Council to remove a judge from his post. The Council will consist with three members (Chief Justice and two next Senior Judges). This Council is given power to make an inquiry for any 'gross misconduct' done by judicial officer and they report it to the President. It is the President who can remove a judge from his post [Article 96 (6)].
The Pakistan Constitution has also an option of Supreme Judicial Council under Article 209. Judges of Supreme Court can not be removed from his post unless and until council report as guilty to President. The President may remove a judge from his post under Article 209 clause 6(b). The Indian Constitution in Chapter 4 (The Union Judiciary) at Article 124 and Clause 4 defines, “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”
Recently the Berlin based non government organization Transparency International (TI) blast a bomb in South Asia. TI Pakistan reports that Pakistan Judiciary is the 6th most corrupt sector in the country. To protect their judiciary Chief Justice started 'Jihad' against corruption. In addition Pakistan Parliament introduced a new bill of 'accountability law 2010'. The opposition party Pakistan Muslim League (Nawaz) demanded to bring judiciary under this law. According to Global Corruption Report 2007 Indian Judiciary is also corrupt and they are trying to improve it. The Indian Parliament introduced the Judicial Standards and Accountability Bill on December 1, 2010.
Transparency International Bangladesh reported Judiciary is the top most corrupt service sector in Bangladesh. On response of this report Chairman of Anti Corruption Commission said on media that "The TIB survey doesn't give an overall corruption scenario, but a partial view. Corruption in the country is very deep rooted." The government reaction was not so positive after that the Chief Justice forms a prove committee to find out corrupt people in the Judiciary. Does this process will remove corruption and ensure transparent judiciary is a million dollar question.
In Bangladesh judicial accountability is a debate. On November 29, 2010 Law, Justice and Parliamentary Affairs Committee invited Supreme Court Register to appear before the committee. The judiciary rejected the appeal on the plea that it is not accountable to parliament for its activities. On response of it the Chief Justice said “none is superior among judiciary, parliament and executive branch of the state. They are complementary to each other. The judges are accountable only to Almighty and the people. They express their accountability through the judgments to the people.”
In reaction, Suranjit Sen Gupta, Chairman of the Parliamentary Committee said that as per constitution parliament is the highest seat of authority. As the people hold the supreme authority and they bestowed their power on the elected members of parliament, it is the parliament who holds the authority over all the organs of the state. He opined that the judiciary should also be accountable to parliament. A retired judge of higher judiciary thinks that it is the parliament to whom the judiciary should remain accountable. Alternatively a practicing lawyer and a constitutional expert supported the opinion of the Chief Justice when asked by the media on the issue. He also said that if the judiciary does not remain independent, the majority party will try to dictate judiciary at its will.
In United Kingdom we have seen judiciary is accountable to parliament and judiciary is given power to declare any law incompatible under Section 4 of the Human Rights Act 1998. There is a good check and balance of power between these two organs. Under written Constitution US Parliament have impeachment power and they can remove any judge from his post through a democratic way. For better democracy Pakistan has introduced “Accountability Law 2010”. For transparent judiciary India is enacting 'Standards and Accountability Act 2010'. But in Bangladesh accountability of judiciary is still a debate. We believe for the good democracy and rule of law the legislature, the executive and the judiciary will balance their power. The main actor of the legal system should consider that this is the time of making a people friendly Constitution. Now people deserve a transparent judicial system and friendly democratic Bangladesh.
The writer is a Trainee Lawyer.