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April 3, 2004

Politicisation of Judiciary: An 'immoral' practice

Barrister M. Moksadul Islam

Probably we are the most politicised nation on earth. Beside the mainstream politics almost all of our institutions have also been politicised in the name of so called panel (white panel-backed by AL, blue panel-backed by BNP etc.). Although all these panels are not officially recognised as the wings of the political parties it is admitted fact that political parties play an active role in nominating the candidates for these associations under some kind of penal. Let us try to see to what extent our Judiciary is politicised. Bar (the lawyers) and Bench (the judges) are the two wings of Judiciary. Judging a Judge is always a risky business. However, to achieve a comprehensive discussion I, with due respect to our Judges, would seek a bonafide permission to say a few words about the Bench. Recently I received a visiting card of a sitting Judge of the lower Court and found that they also have Associations. Whether these Associations are politicised or not is really a very tough job to decide. I am not aware of any Association of the Supreme Court Judges. In the Supreme Court, however, there is allegation that successive government always try to influence the appointment of judges. Many argue that provision for Chief Advisor of None Party Care Taker Government, in many ways, is responsible for existing dwindling situation of our Judiciary.

Recently it is also seen that Judges after retirement are accepting high profile posts about which people are again a bit nervous. What about the Bars i.e. the Lawyer's Associations? Without any doubt whatsoever like other institutions Bar Associations of the country are also politicised under the guise of so called panels. The post of Presidency in the Supreme Court Bar Association has become an integral part of the national politics. If you want to be elected you must get support of one of the main political parties.

In the recently held Supreme Court Bar Association (SCBA) election a very senior lawyer who campaigned the entire year for the post of Presidency was dropped out of the race when he failed to secure support of the party he is associated with. For the last few years white-panels supported by AL are wining most of the Bar Association elections. It was not different in the Supreme Court Bar Association either. In this year's SCBA election last year's President reelected. His opponents vigorously campaigned against this repetition on the ground, allegedly, that last year he himself campaigned against repetition. The blue-penal supported another non-political senior advocate. He mainly campaigned against politicisation with the slogan that if he gets elected no political party would be able to dictate his agenda. Both the frontrunner candidates intermingled with others generously and ran a lively campaign. Supporters of the white-penal banked on the long and fierce speech delivered by the President recently in the felicitation of the Honourable Chief Justice of Bangladesh. Actually this speech has made him a hero in the eyes of many lawyers which proves the fact that the gap between the Bar and Bench is really massive and increasing. His opponents, however, campaigned against the said felicitation speech alleging that the

President may have compromised his non-political stance. Central leaders of both the main political parties actively campaigned for their respective candidates.

Lawyer's profession is an independent one unlike many other professions. Then what is the force working behind the curtain that has politicised the Bar Associations? Actually all the lawyers are not politicised but only a fraction of it has political connection. One of the most important reasons is jobs in the office of the Public Prosecutor (in the lower Court) or Attorney General (in the Supreme Court). Those who work in the office of the Public Prosecutor or Attorney General should realise that they were given the said job to protect the interest of the 'State', not of any political party. The concept of State is much bigger than a 'political party'. Most of these law officers, who were appointed because of their apparent loyalty to the Government or with the help of other influential politicians, have mixed up 'State' with the Government i.e. the party in power.

Both the candidates contested for the President post under white and blue panel were undoubtedly competent for the said post. However the white-penal backed by the opposition won a sweeping victory with a repeated President. No matter who won this election, what this country needs is a Bar as such a Judiciary which would work beyond political or personal gain and for the people of this country only. Otherwise the much talked about 'separation and independence of Judiciary' would not even slightly change the prevailing confused state of the Judiciary.

Right to form an association is a fundamental right guaranteed under Article 38 of the Constitution. No one has any objection when a lawyer is actively participating in the national politics. However, no one wants to see a Judiciary (comprising of the Bar and the Bench) ignoring the national interest. All Lawyers' Associations should work to achieve a modern Judiciary with a clean environment in the Court Premises and should not become a wing of the national political parties. Article 38 states that "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order". No 'moral' standard can possibly support politicisation of Judiciary. This restriction 'in the interest of morality' would require the Judiciary to be abstained from being politicised at the instigation of others and serve this nation in accordance with law and only in accordance with law.

Barrister M. Moksadul Islam is an advocate of the Supreme Court of Bangladesh.