BANGLADESH - Chief Justice Surendra Kumar Sinha yesterday said the government doesn't have faith even in its own lawmakers as Article 70 which prevents an MP from voting against his/her party in parliament is still in the constitution.
"You don't trust your own party lawmakers. Members of parliament cannot work independently because of Article 70 of the constitution. Why have you kept this article in the constitution?" he asked Attorney General Mahbubey Alam.
"Why can't you have faith in parliament?" questioned the chief justice.
He was presiding over a seven-member bench of the Appellate Division of the Supreme Court for a hearing on the appeal against the High Court verdict that scrapped the 16th amendment to the constitution.
The 16th amendment had empowered parliament to remove judges for incapacity or misbehaviour.
Following a writ petition filed by nine Supreme Court lawyers, the HC on May 5 last year declared the amendment illegal. The government on January 4 this year filed the appeal with the SC challenging the HC verdict.
The SC will resume the hearing tomorrow morning.
Mahbubey Alam yesterday told the court that there is a history of Article 70.
Article 70 says, "A person elected as a member of parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he resigns from that party; or votes in parliament against that party; but shall not thereby be disqualified for subsequent election as a member of parliament."
The provision came into being amid "horse-trading" taking place in different countries, said the AG. In terms of politics, "horse-trading" is bringing in members from the opposition party to gain majority in parliament by resorting to unethical means.
In response, the chief justice asked if there is any certainty that "horse-trading" will not take place while making decisions about judges.
He said there should be an exclusive hearing on Article 70. "We cannot say everything here as it will surface in the media."
The attorney general said the 16th amendment was made to remove the scars of martial law.
The system of Supreme Judicial Council, which was empowered to recommend judges' removal, was introduced through a martial law proclamation, the AG said.
The 16th amendment was incorporated to go back to the original constitution. It was in the country's interest, not for a political purpose, he argued.
Justice Sinha said some laws formulated in 1982 [during the martial law rule] are still now in force.
He added the judiciary never supported martial law.
There is a very sad chapter in the country's history, the CJ recalled. Without mentioning any name, he said that a highly educated president had to depart as he showed a little neutrality.
Additional Attorney General Murad Reza told the court that Bangladesh is the only example where a chief justice [Abu Sadat Md Sayem] had become the chief martial law administrator by breaking his oath and supported martial law.
Unless there are checks and balances like the 16th amendment, it cannot be guaranteed that the same thing will not happen again, he said.
The attorney general told the SC that parliament members are elected representatives of the people. As the appointing authority, the president should do something about the HC judge who observed in the 16th amendment verdict that many lawmakers have criminal records.
If the allegation against the MPs is true, something tangible should be done, he added.
The chief justice then asked the attorney general how he could make such a comment. "What did you say? Can the president remove a judge?"
Justice Sinha said the executive has already brought the lower judiciary under its control and it is now trying to do the same to the Supreme Court.
"Around 80 per cent judges of the country are from the lower judiciary. In fact, the Supreme Court has no control over them. The courts have become disabled."
When the attorney general said the sculpture on the Supreme Court premises has become an issue, the chief justice asked him not to raise it.
Justice Sinha said there is a district with no district judge for five months. He questioned how the judiciary is functioning.
He added he always makes comments in the interest of the judiciary.
"The law minister said the salaries of judges have increased and the judiciary is independent. Can the judiciary become independent only through hike of salaries of judges? The salaries of judges increased one year after that of the ministers were hiked," Sinha said.
The chief justice along with other judges of the apex court bench left the courtroom around 1:15pm, when the court hours ended.