Judicial Independence
Do we really want to hear the people?
Naser
Alam
The
role of judges in the establishment of fair judicial process and in
acting as the vanguard of fundamental rights has become a household
issue in the past few years. The debate as to the smooth functioning
of the 'justice-holders' is by no means a new one in Bangladesh. The
last two governments have equally been accused, either wrongly or rightly,
of politicising the whole process and leading it to a political bog.
It seems everyone wants to get something out of it and the civil society
ultimately suffers from this enormous tension.
Framing
the issues
No doubt our judiciary has been entrusted with the toughest constitutional
duty to maintain the rights of the people. In a fragile democracy like
ours, the judiciary has performed its duty with honesty, integrity and
with great courage at times of national crisis to maintain the supremacy
of our Constitution. Well, it seems this very trend and practice have
been sought to be undermined.
Two broad issues have been debated recently - the issue of judicial
appointments and the judicial separation. Both bear an inherent link
and one cannot be solved without solving the other.
The
dilemma different thoughts
I am a great admirer of our bench, but I seem to ponder were my Lordships'
effort in creating a "roadmap" for the independence of the
judiciary a well thought one? I have two reasons to confine myself to
this: was it a good idea to leave the whole matter (in real terms) of
independence of judiciary to the government? Why did we not think about
creating an independent commission of distinguished professionals to
detail the roadmap? Can we really get an independent judiciary where
the government is the ultimate planner and decider? I doubt. I am sure
we are focused elsewhere. Well, time has not stopped to act on this.
Leaving it to the government and directing them to perform under the
guidelines of our Lordships is simply counter-productive. We have seen
why. Judicial independence has not yet been achieved and we would not
achieve it unless we begin with an independent authority commissioned
to do it to examine what the government is doing, even if the government
if minded to achieve a benevolent result.
We have failed to choose a consultation process. But, the guidance is
an excellent example of a dialogue between the two organs to achieve
a goal.
Public
participation
Did we forget that the Constitution is for the people? My reason in
saying this is simple do we hear the people. There have been various
fronted movements to unseat or seat various judicial appointments. There
have been political undertones in many of them, but was there a due
process to hear the people? Here I come back to my argument that leaving
it to the government to plan, decide and implement are taking the general
people out of the decision making process. The result is a clash of
belief. Their Lordships did have honest intentions, but would it not
have been better to involve people into the process rather than wait
for people to revolt against a defective mechanism?
There
are stronger reasons to allow for public participation in these decisions
making as it affects them in every way and the risk they bear in having
to be subjected to a non-consensual process is far greater than the
risks faced by the governments. I do not think referendum is an effective
choice, simply because people would not trust it.
Why
bother about people?
I quote Lord Falconar, the Lord Chancellor of UK on this. He said recently,
Judges preside not only over the cases which arise in the criminal and
civil justice systems but their decisions affect society in many other
areas such as human rights, judicial review, family law etc. They are
very often entrusted to chair major inquiries whenever an impartial,
independent investigation is required.
Even
if the government decides to separate the judiciary now, let's say in
a matter of a day, would there be public confidence with the process
and on the judiciary? I doubt greatly. I hope the government also understands
the danger in keeping the matter of "road mapping" the independence
process exclusively at its domain. Should it not be delegated to an
independent authority to start with?
The
core of judicial independence
This is what a recent consultation paper in UK as to judicial appointment
had to say:
In
a modern democratic society it is no longer acceptable for judicial
appointments to be entirely in the hands of a Government Minister. For
example the judiciary is often involved in adjudicating on the lawfulness
of actions of the Executive. And so the appointments system must be,
and must be seen to be, independent of Government. It must be transparent.
It must be accountable. And it must inspire public confidence. Once
appointed, judges have security of position - judicial independence
depends upon it. So the decision to appoint must be the right one, in
every case. Another central theme will be accountability. Those responsible
for judicial appointments must be accountable to Parliament without
it becoming part of the political process and consideration will need
to be given to ensuring that this is achieved.
A
Judicial Appointment Commission?
"We need an independent Judiciary" sounds very pro, but how?
We need a radical change to the judicial appointments system to enable
it to get closer to ensuring justice for all, to the people and to those
who govern them and to meet the needs and expectations of the people.
A Commission can achieve judicial independence, will make the system
for appointing judges more open and more transparent, and will work
to make our judiciary more reflective of the society it serves. The
commission can work as a hedge against monopolisation of power by the
government. Would it really? Commission's independence depends on the
independence and transparency of the appointment process of its members.
Improving
credibility and legitimacy
The recent appointments are devoid of public confidence, perceived as
biased, unaccountable and lacking in transparency. This perception has
damaged public confidence in the administration of justice and deters
qualified candidates to become a part of the higher judiciary. If this
continues, we have reason to be worried about great social danger.
The
UK consultation paper aspired that an independent Judicial Appointments
Commission will be able to bring a wide range of experience, professional
background and fresh ideas to the process, to help ensure that judicial
appointments are underpinned by best practice in recruitment. This requires
the creation of the processes, systems and culture which are needed
to ensure that the selection and appointment procedures are fair, equitable
and transparent to all, and which help to ensure the widest range of
candidates for the modern judiciary. It is important to consider how
members of the new Appointments Commission are themselves appointed
since the independence from Government of the new Commissioners must
be beyond question. These reforms are of very real and lasting importance.
They must be implemented in a way which commands the widest possible
support.
Concluding
remarks
The whole nation not only has a democracy crisis, but leadership crisis
is rife. The judges are the passive leaders of any democracy and social
justice. If we lose this institution, there would be permanent damage
to the balance of social powers within the nation. Its consequences
are even hard to imagine. Hope we are all listening.
Naser
Alam is a Barrister and Advocate, Supreme Court of Bangladesh.
