The
constitution and judicial independence
Imtiaz
Omar and Zakir Hossain
Post-colonial constitutions
have their distinctive flavour of elaborate provisions of separation
of judicial power and judicial independence. The Bangladesh constitution
is no exception. An added dimension which the Bangladesh constitution
shares with a few others is the establishment of Supreme Judicial Council
to enquire into allegations of misconduct, impropriety, and infirmity
of Supreme Court judges.
Recently, allegations
were made from the Bar that one of the newly appointed judges of the
High Court Division had manipulated his LL.B. transcript. Faced with
an intransigent situation of impending boycott of the Court by members
of the Bar, and the refusal of the accompanying judge to sit with him
in a Division Bench, the Chief Justice has stood down the concerned
judge.
The major question
that has arisen among some sections of lawyers, judges, academics, commentators
and journalists is that, should the Supreme Judicial Council be invoked
to address this problem. The judge under question has not been confirmed
yet; he is a temporary judge. For purposes of argument, it is accepted
that the Chief Justice has certain responsibilities and discretion to
see to it that respectability and legitimacy of the supreme constitutional
judicial organ of Bangladesh be maintained and perpetuated. So a temporary
judge can be stood down. If the concerned judge has, in fact, manipulated
his academic transcript, it is an abhorrent act. It has in fact been
found by an enquiry committee appointed by the Chittagong University
authority that he has done so.
Despite
all these, there should not have been any insurmountable problem in
convening an enquiry by the Supreme Judicial Council which has been
established by the Constitution to take care of this rather sordid state
of affairs. That course of action would have enhanced the legitimacy
of the action taken in respect of the judge. It would also entrench
the respectability of the Chief Justice. Beyond all these, it would
have given the impression that matters like this can be taken care of
an institutional procedural way rather than by seemingly partisan tactics
by sections of the leadership of the Bar Association.
Maintaining the
legitimacy and independence of the judiciary is a difficult task in
any country. The responsibility for this lies not only with political
branches of the government, but also on the Bench and the Bar, and the
enlightened citizenry. Some instances of encroachment on the independence
of judicial domain in Bangladesh may be remembered as lessons for the
future. One judge of the Supreme Court who was destined to be the Chief
Justice had his dream unfulfilled because the retirement age was abruptly
lowered. Another Chief Justice could not serve out his term, because
by military decree a two-year serving Chief Justice automatically retired.
Members of the Bar persisted in boycotting the Court in 1982 because
of decentralisation of the High Court Division.
Despite everything,
the Bangladesh Supreme Court played a significant role in government.
One Chief Justice stepped into take over as President in a situation
of chaos after military coups and counter coups. Significant political
questions, which were incapable of resolution in the political processes,
were determined by our Supreme Court. Whenever possible, the Supreme
Court displayed a bold and courageous stand against political excesses.
It is very important
that our highest judicial institution be safeguarded from partisan political
intrusion, erosion of legitimacy, and unwise judicial statesmanship.
The Bangladesh Supreme Court is a bastion of political balance in the
society and polity, but a fragile bastion. Everyone shares the responsibility
of protecting this fragile bastion. No one should lay siege to it in
any way.
Dr.
Imtiaz Omar is a constitutional law scholar based at the University
of New England, Australia, and Md. Zakir Hossain is Associate Professor
and Chairman of the Department of Law, University of Chittagong.
