President’s nod not needed for preliminary inquiry into misconduct

Mizanur Rahman Khan | Update:

Most constitution experts agree that the Supreme Judicial Council revived by the Supreme Court verdict, will not be applicable just for the Supreme Court, but for the Election Commission, the Public Service Commission (PSC), the Comptroller and Auditor General of Bangladesh, the Information Commission, the Human Rights Commission and the Anti-Corruption Commission, as before.

And not only judges will come under the jurisdiction of the internal preliminary inquiry committee of the Supreme Judicial Council, but also all constitutional and semi-constitutional position holders without requiring the president's approval.

Legal experts said the president cannot take any decision himself on these matters. His decision basically depends on the prime minister’s advice.

One of the amicus curies of the 16th Amendment case M Amir-ul Islam, former law minister Shafique Ahmed and eminent lawyer Shahdeen Malik are of the same opinion in this regard.

They told Prothom Alo that if any constitutional tool is retrieved by the apex court, it will automatically bring about changes to the relevant places in the existing constitutional and laws.

M Amir-ul Islam said after the full verdict, the Supreme Judicial Council will be effective for those to whom it applied in the past. 

The law and justice ministry is now to bring necessary changes to the laws in keeping with the verdict.

Former law minister Shafique Ahmed told Prothom Alo that other constitutional post holders must enjoy the privileges of the new system (inquiry by the chief justice). If not, it will be discriminatory.

Former justice Syed Amirul Islam said despite applicability of Supreme Judicial Council for the Election Commission and others, the preliminary investigation of council will be applicable only for judges. 

He also said the things should have been clarified in the main verdict. He hoped that this issue would be clearer in future reviews. 

But, Amir-ul Islam and Shafique Ahmed did not think that any review was needed of the issue.

Chief election commissioner KM Nurul Huda has welcomed the preliminary investigation on misconduct of judges that will carried out by the two senior judges of the Appellate Division led by the chief justice without the president’s approval.

However, certain constitutional post holders expressed their reservations concerning the matter.

According to the verdict, a preliminary investigation system will be drawn up for the judges. This provision didn't exist before. Thought there is no separate code of conduct for the others, experts said the new investigation system devised by the Supreme Court will applicable for all constitutional and semi-constitutional position holders.

According to the Article 96, the Supreme Judicial Council was supposed to get approval from the president prior to holding a meeting before any official inquiry.

But, the new code of conduct says the chief justice will initiate a preliminary investigation and later on, a team of two judges will carry out the inquiry.

If authenticity of any of the allegations is found in the preliminary investigation, it will be sent to the president seeking permission for a full-fledged inquiry.

Chief election commissioner KM Nurul Huda said, “I haven’t gone through the full verdict yet. Hopefully the procedure will be same for us and the judges. This procedure will provide a new safeguard. Prior to beginning proceedings of the Supreme Judicial Council, a preliminary investigation sounds good.”

In the verdict on the 16th Amendment to the Constitution, seven judges unanimously agreed on two issues. Firstly, the cancellation of the 16th Amendment and retrieval of the Article 96. Secondly, clause 39 of the code of conduct for judges.

Asked about when these will come into effect, Shahdeen Malik said, “There was no specific order about Article 96 in the brief verdict. We got it on 3 July. Thus, the Article 96 and code of conduct came into effect on 3 July.”

According to the Article 118 (2) of the constitution, the procedure and the causes contributing to the removal of judges will also be applicable for removing an election commissioner. This verdict has explicit effect on every five of the election commissioners. 

Article 139 (2) also says the procedure and those causes that can remove judges will be applicable for removal of the chairman of the public service commission and its members. The PSC has now 12 members including its chairman Mohammad Sadik.

He said, “I have no clear idea about the Supreme Judicial Council. I can’t comment without knowing the details.”

Article 129 (2) reads that the procedure and causes applicable for judges will also be germaine for removing the comptroller and auditor general.

Chief information commissioner professor Golam Rahman told Prothom Alo said, “In determining the process for impeaching judges or removing persons from constitutional posts, the competence of the elected members of parliament has been questioned. My apprehension is those who will be investigated by the Supreme Judicial Council are senior persons. If they submit any report against them, this will be considered as a valuable decision. Thus those in constitutional posts may also question the competence of those who will conduct the inquiry into these the issues.”

Human Rights Commission chairman Kazi Reazul Haque said, “I have no opinion about this matter. I will comply with whatever is fixed by the system.”

The Supreme Judicial Council is also applicable for the Anti-Corruption Commission. Chairman of the three-member team Iqbal Mahmud said, “Our removal procedure will be directed according to the law. I have no other comment.”


Mizanur Rahman Khan is joint editor, Prothom Alo. This piece, originally published in Prothom Alo Bangla print edition, has been rewritten in English by Toriqul Islam.

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