Law
alter views
Rule
of law and independence of judiciary
Najmul
Hasan
To
ensure absolute independence of the Judiciary England
had to fight a long and sustained battle and it was not
until 1701 that she was able to achieve that object.
Sir
Winston Churchill said of the judges, "There is nothing
like them at all in our England. They are appointed for
life. They cannot be dismissed by the Executive Government.
They have to interpret the law according to their learning
and conscience".
About
the salary of judges it is recognised in England that
it should be such that they would be able to maintain
a way of life befitting the gravity of the duties they
have to discharge. They are at present the highest paid
officials in England except the Prime Minister and a few
others.
Lord
Denning said, "Such is the price hich England readily
pays so as to ensure that the Bench shall command the
finest character and the best brains, that we can produce".
In
the words of Sydney Smith, "Nation fall when the
judges are unjust because there is nothing which the multitude
think worth defending; but nation do not fall which are
treated as we are treated".
If
we cherish the independence, efficiency and impartiality
of our judiciary as the people do in England, we should
see to it that the judges are better paid, that they are
able to work so long as they are fit, that their salary
and pension are increased and that they have nothing to
look forward to at the hand of the government either in
the course of their service or after their retirement.
The service promotion and appointment of the judges should
be made immune from the action of the government and their
service promotion, salary etc. should not be in the hand
of the Executive and the Government, so that the government
or any other quarters cannot exert any influence upon
the judges.
All
political parties, especially while in the opposition
shouts, for rule of law and independence of the judiciary.
In all politikal movements the demand for rule of law
and independence of the judiciary was one of the main
slogans in our country and yet the "Rule of Law and
complete independence of the judiciary" could not
be achieved. One of the main slogans of the political
party now in power was "Rule of law and for the independence
of judiciary" and still the same has not been fully
achieved and established even after passing of the 33
year{ of independence.
The
parties now in opposition with full throat are "shouting
for rule of law and for independence of the judiciary"
but while they were in power they did exactly the opposite.
They did not make any efforts for establishing "Rule
of law and independence of the judikiary" rather
they trimd to make judiciary subsezvient to the Exmcutive
and the Government and to that end they did not hesitate
to amend the Constitution from time to time to suit their
purpose. The first major encroachment upon |he independence
of the judiciary and to make it subservient to the executive
was made by the 4th amendment of the constitution. The
power of impeachment of the judges was taken away from
Parliament, and the President was vested with the sole
authority to remove, suspend and dismiss judge of the
Supreme Court without any charge, notice or show cause.
That
was the first blow upon the 'Rule of Law and |he Independence
of the Judiciary" immediately after independence.
Thereafter,
during the last regime from 1982 to 1990, attempts were
made to weaken the judiciary further and to make it subservient
to the Executive by 8th amendment and bifurcation of the
High Court Division of the Supreme Court of Bangladesh.
In
1982 during the last regime and the government perhaps
the cruelest blow was inflic|ed upon the judiciary when
four senior most eminent judges of the Supreme Court of
Bangladesh were removed arbitrarily.
The
aforesaid removal of the 4 senior most judges of the Supreme
Court including the Chief Justice shall always remain
as the most naked and barbaric act and encroachment upon
the "Rule of Law and the Independence of the Judiciary."
Even
under those unfavourable conditions judges of the Supreme
Court of Bangladesh, made their utmost to uphold the dignity
and independence of the judiciary. (And in doing so the
as far noted 4 eminent judges lost their jobs.) Subsequently
it was the Supreme Court of Bangladesh which restored
back its power, authority, jurisdiction and independence
to a great extent by its unparalleled hi{toric judgement
declaring the 8th Amendment to |he Constitution in relation
to |he bifurcation of the High Court Division and curtailing
of the overall jurisdiction of the High Court Division
over all the territorial jurisdiction of Bangladesh as
illegal, unconlitional and void.
Till
date, the reasons, foz the removal of the afozenoted senior
eminent judges of the Supreme Court from their office
are not known. These eminent judges were not only removed
from service most illegally and arbitrarily in flagrant
violation of all norms, forms ethics and principles. They
were as well restrained from practising law for their
livelihood and as well they were refused any compensation
or pension whatsoever. Except Chief Justice Kemaluddin
Hossain who was given pension.
One
of the 4 judges, Mr. Justice SM Hussain, could not absorb
the shock of his illegal removal from service and dimd
of cardiac failure. It is shocking that till |oday nothing
worthwhile has been done by the present democratic government
to compensate and redress the family of that eminent,
dedicated judge and the other three judges of the Supreme
Court of Bangladesh.
Mr
Justice SM Hussain became a victim of the past regime
along with other three eminent judges, for their uncompromising
and unflinching judicial temperament and their relentless
endeavo}r and efforts to establish rule of law and to
safeguard independence of the judiciary. Many ymars have
passed since Justice SM Hussain has died, with all his
pain, agony and helplessness in his tormented mind but
we the lawyers and officers of Court will never norget
him nor his name will evez be forgotten in the history
of the judiciary of Bangladesh.
It
is now quite evident that the political parties always
shout for the "Rule of Law and for Independence of
the Judiciary" not for the sake of the judiciary
but rather to achieve their political objective and to
give impetu{ and momentum to their criticism and movement
against the party in power.
The
major political parties including the party now in power
and the parties who had been in power and are now in the
opposition seem to have used their slogan for "Rule
of Law and Independence of the Judiciary" nor achieving
thmir political aims and objective rather than for the
sole interest of the judiciary and the nation. Activities
in the past as referred to above show that they exactly
did the opposite things and 4th and 8th amendments brought
about by the past two political parties then in power,
as quoted above, bear, testimony to the same.
Under
the present circumstances it seems that no more reliance
can be given upon the slogan for "Rule of Law and
for Independence of the Judiciary" when it is being
raised by any political party.
Now
it is high |ime that the slogan needs to be raised by
all lawyers irrespective of cast, creed and political
affiliation unanimously to achieve "Rule of Law and
Independence of the Judiciary" in the country.
As
referred to in the historic 8|h Amendment case Judgement
that independence of judiciary is not an abstract conception.
The reference given therein where Bhagwai, J said "If
there is one principle which runs through the entire fabric
of the constitution, it is the principle of the rule of
law and under the constitution it is the judiciary which
is entrusted with the task of keeping every organ of the
State wi|hin the limits of the law and thereby making
the Rule of Law meaningful and effective." He said
that the judges must uphold the core principal of the
Rule of Law, which says "be you ever so high, the
law is above you." This is the principle of independence
of the judiciary which is vital for the establishment
of real participatory democracy and maintenance of the
rule of law as dynamic concept and delivery of social
justice of the vulnerable section of the community. It
is this principle of independence of the judiciary which
must be kmpt in mind while interpreting the relevant provisions
of the constitution."
In
the said historic 8th Amendment Judgement words of Justice
Krishnaiyer was quoted "Independence of the Judiciary
is not genuflection; nor is it opposition to every proposition
of government, it is neither judiciary made to opposition
measures nor government pleasure."
The
author is an Advocate, Supreme Court.
