Law campaign
Renaissance of the judiciary
Challenges and recommendations
K M Mukta
 |
unisa.edu.au.justice |
Judiciary is one of the indispensable organs of an independent sovereign nation state. The judiciary is viewed as the last resort for getting justice from time immemorial from pole to pole. In the first decade of 19th century the Supreme Court of USA launched the classical dogma of 'Judicial Review' in Murbury vs. Madison 1804 to uphold the constitutional rights and to suppress the arrogance of the executive organ. In the constitution of Bangladesh, we discover that the preamble, Articles 7, 26, 102, etc. explicitly enshrine the provisions of judicial hegemony as watchdog to uphold the constitution and rights of all strata of people including the down trodden minority and other vulnerable groups. But ironically the judiciary was caused to sink for multi-dimensional reasons like corruption, naked encroachment by the executive, muscle power, lethargic bureaucracy, colonial legacy, backdated laws, lack of intellectual human resource in the Bar and Bench, lack of logistic support, etc. which justice lyer inducted by four pathological factors: (a) colonial judicial backwardness, (b) medieval management methods promotive of docket and stagnation, (c) functional non-accountability to the people, and (d) a careerist hedonism ready to negotiate judicial independence. As a result, there are many corners which whispered “the court is dead, rest in peace!”.
Outline of renaissance in judiciary
Within that dark gamut, we marked a miraculous holistic and comprehensive pronouncement by the Supreme Court in Masdar Hossain case which echoed separation and independence of judiciary by letters and in spirit, which is a constitutional guarantee. In pursuance of 12-point directives of Masdar Hossain case, there happened a formal and official separation of judiciary on 01/11/2007. This historical and epoch-making new journey of judiciary is a sort of renaissance for the whole nation with the promise of qualitative and quantitative justice. But the question is whether we have minimum preparation to uphold and retain the prolifics of this renaissance in judiciary. Intellectuality is the very basic edifice of sustainability of any renaissance as it is axiomatically inferred from the saga of various renaissance and human civilization.
The judicial service commission has already appointed 396 assistant judges who are comparatively young, determined, committed with brilliant academic results. There are multifaceted options of lucrative professional opportunities for them. At the time of appointment all of them heard the promise of ameliorating the salary and other logistic support crisis in accordance with the soaring prices of daily necessities. But those happened to be promises as the judicial service pay commission's recommendations to enhance the salary of the judges were turned down by the government. This sets another bad precedent while all over the world we observe high degree of respect towards the apex court's recommendations.
In this milieu, the newly appointed judges who are the active force of sustainability of the judicial renaissance are in a state of frustration. If a judge cannot get minimum basic emolument for his family, it is not possible to materialize the dreams of the renaissance of judiciary. Meantime, some of the newly appointed assistant judges are stated to have quit and many others are pondering over to quit for better options.
Problems in lower judiciary
The colossal impediments in lower judiciary are too apparent and interwoven. It is highly indecent for the state, and wisdom would not support that judicial officers and their family members would suffer from malnutrition. The whole nation has expectation up to the sky from the judiciary without basic investment. As statistics demonstrate the national budget never allocates more than Taka 200 cores for the judiciary which is a remarkable revenue earning sector for Bangladesh. In the District level courts, there is no minimum opportunities of rich library, modern information technology, residence and other ancillary opportunities in contrast with other South Asian countries like, India, Nepal, Pakistan and Sri Lanka where judicial officers are endowed with higher degree of opportunities culminated in feeding back justice to the citizens.
There is little scope of intellectual development here as the judicial officers cannot publish any articles, research papers unless and until pursuance of complex bureaucratic manoeuvre for consent from the authority is made. There is a small number of judicial officers who have PhD degree in comparison with other cadre services as the judicial officers do not have access to various scholarships of foreign governments/agencies which are now destined the BCS officers. This has already created and will enlarge the intellectual vacuum in the realm of judiciary. There is a great frustration with the rank and protocol too -- I whereof a judicial officer at the end of his service retires as district judge, his same calibre friend/classmate retires as secretary.
There is a large communication gap between the Bar and the Bench while there is no formal and informal steps to minimize the misunderstanding. The newcomer judges do not have any training but are functioning as plenipotentiary judge which might create further bitterness and result in substantial distrust towards the whole institution. The training opportunity accommodated by JATI is embedded with multidimensional lacunae including selection of not so qualified trainer. Intra and inter judicial conflict and discrimination also exist. For instance, assistant judges enjoy one month vacation which is not available to the judicial magistrates though all of them entered the service as assistant judge. The lower judiciary is left like an orphan as if there is no stakeholder/platform to negotiate for them. Actually, there is a communication gap between the lower and higher judiciary on various issues regarding service.
Recommendations
Finally, if the real flavour of independence and separation of judiciary is to sustain, then proper logistic support has to be available to the judges. There should be reshuffling of the status through amendment of the present 'warrant of precedent' system. The prolonging meagre tradition of isolation of judicial officers should be eliminated with self-sanction of judgeship, ethics and morality. The horizontal and vertical avenue of higher education, various training, scholarship, intellectual publications, participation in workshop, seminar etc. should be made available for the judicial officers. There should be a paradigm shift from lackadaisical meaningless prohibitions which ultimately ostracized judicial officers from mainstream and hinders judicial activism. After all, patriotism, self-sanction and accountability of the judicial officers to the citizens are conditions precedent to retaining the prolific renaissance of the judiciary. Higher degree of value system should be invented through combined endeavour of the decision makers of the higher judiciary where the lower judiciary should be consulted as a matter of right.
The writer is a researcher and analyst on Law and Judiciary in Bangladesh.
