Law opinion
Separation of Judiciary
Expectation and achievement
Dr. Muhammad Ashrafuzzaman
Independence of Judiciary is not a matter for jurists only but an important pillar of democracy. Many countries across the globe have begun transitions from authoritarian rule to democracy, marking what has become popularly known as the third wave of democratization. Democracy can never be complete without and unless the four pillars are independent and strong. However, there must be links between and among the pillars. The organs of the states are dependent on each other as current British Lord Chancellor rightly pointed out “The independence of the judiciary, as opposed to that of individual judges, is dependent on the willingness of the popular branches of government” . The unique status and character of the judicial wing emerges out of its objectives, namely, the maintenance and protection of individual rights. While a society without legislative organs is conceivable, one without a judicial organ is inconceivable. In the absence of the legislature, courts might apply rules derived from other sources, such as custom or their own previous decisions. Not only is the judicial organ said to be a necessity but also a test of the excellence of a government, “for nothing more nearly touches the welfare and security of the average citizen than the feeling that he can rely on the certain and prompt administration of justice” (Lord Bryce). In his 2004 report, the UN special rapporteur on the independence of judges and lawyers described how the rule of law and separation of powers are the pillars of the independence of judiciary:
The rule of law and separation of powers not only constitute the pillars of the system of democracy but also open the way to an administration of justice that provides guarantees of independence, impartiality and transparency. These guarantees are universal in scope.
The Supreme Court direction
The Bangladesh Constitution clearly lays down the foundations of a judiciary that is separate and independent from the other branches of government. It was introduced in recognition of the fact that the efficiency of the judiciary and the entire justice system depends to a great extent on the independence of the judiciary.
One year has elapsed since the historical day of independence of judiciary. Now we need to look back to the achievements of independent judiciary. In Secretary of Finance v. Masdar Hossain, the Supreme Court provided a road map for implementation of judicial independence in the form of 12 directions. To create a separate organization the judgment provided the followings to be done:
Changes after separation
The former Chief Justice Mostafa Kamal said, "The administrative and supervisory works of the Supreme Court have now registered a manifold increase. I hope that the Supreme Court will not disappoint the countrymen in the due discharge of its extended functions." Let us now look at the administrative functions and what has been done since separation.
General Administration Committee
Headed by the Chief Justice and composed with three other members selected by the Chief Justice from amongst the Judges of High Court Division, this committee is responsible to take decisions regarding posting, promotion and other departmental action.
The Bangladesh Judicial Service (Service Constitution, Composition, Recruitment, Suspension, Dismissal and Removal) Rules 2002, and the Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2001 were made effective from July 1, 2007.
Judicial Pay Commission
Under Article 115 of the constitution there has to be a separate Judicial Pay Commission which is to review the pay, allowances, and other privileges of the judicial officers. Meetings of the Commission shall be convened at stated intervals to keep the review process continuous. The Bangladesh Judicial Service Pay Commission Rules 2002 is there for its implementation.
After separation, the Judicial pay Commission Headed by an Appellate Division Judge has reviewed the present pay structure of judges. The Judicial Pay Commission made recommendations for 100% judicial allowance, increase of House Rent allowance and robe allowances. Only robe allowances has been increased but the other two recommendations were not time-honoured.
Judicial Service Commission
Immediately after 1.11.2007 around 600 executive magistrates entrusted by the administration with judicial job returned to their administrative duties and the Supreme Court appointed 218 judicial magistrates to carry out the duties at the magistrate courts following the Judicial Service Commission Rules 2002.
Implementation status
Let us now look at the implementations. Judicial Service Commission has been working and the first group of judges appointed by the Commission are now working at various courts. The process of second appointment through this Commission is ongoing.
The Code of Criminal Procedure has been amended. A number of judicial magistrates are already working (many of them are appointed by the new Judicial Service Commission) and the second recruitment by JSC is underway.
Public Prosecution Department must be strengthened
Public prosecution department has not seen much change since the independence. Although, it is claimed that there is no longer political pressure or selection on extraneous consideration, the appointments are still under the control of the Law ministry and not open enough for people to know the selection process. At present we have an Attorney General to protect the interest of the public. His office is in charge to defend the State interest in all matters in the Supreme Court. However, surprisingly, the other parts of state lawyers (Public Prosecutor in Criminal cases and Government Pleaders in civil cases) have no connection whatsoever with this office. Today the Attorney General for England and Wales probably holds the most multifaceted legal profession around the globe. He is utterly a political appointee and must be a member of either house of the Parliament. He has to represent his constituency in the parliament, account to the Parliament for his doings, defend public interest in the apex court, supervise criminal prosecution, represent the Crown in the court and advise government functionaries. No wonder Sir Francis Bacon, once Attorney General himself, termed it “the pain fullest task in the realm”. Though, a political insider, the Attorney General of England is generally expected to differentiate between 'politics' and 'law' so as to enable him exercise his judgment independently. Here in Bangladesh, we fail to see such an attitude among the state lawyers.
The Public and the general prosecutors are appointed by the Solicitors wing of the Ministry of Law, Justice and parliamentary affairs. The solicitor general is a civil servant of Joint Secretary rank therefore the appointment of government counsel is now entirely depending on civil servants.
Litigation management of all suits, and cases in which the government/public or private parties are involved, is one of the major functions of the Ministry. For that matter, there is a Solicitor's Office under the Law and Justice Wing. Solicitor's Office takes care of and monitors litigations by or against the government in different courts of the country including the Supreme Court. This Office is also responsible for appointment and discipline of all Government Pleaders and Public Prosecutors. Appointment of the Attorney General and other Attorneys in the Supreme Court are also processed by this Office. Payment of salaries and fees of the government law officers and disbursement of all other expenses connected with litigation management are made by the Solicitor's Office.
Judicial accountability mechanism
The need for an effective Code of Conduct for regulating judicial conduct on and off the bench at all levels of the judiciary is generally agreed. The code, which should apply to the Supreme Court as well as Subordinate Court judges, would inform the judge of the standards he/she is expected to rise to, create peer pressure for the judge to observe those standards, and, through wide dissemination (via print, audio and/or visual media), inform the public of the standards they have the rights to expect of the judiciary. The code should, among other things, set out the principles or judicial ethics; explanatory comments and hypothetical problems with answers drawn from actual disciplinary actions taken; and remedial and punitive sanctions for code violations. It should cover such matters as disclosure of assets, participation in trade or business ventures, seeking or acceptance of financial benefits which are not clearly available by virtue of office, involvement in conflict of interest situations and engagement in public or media controversy. A provision should be made for a judicial committee to advise judges on difficult and/or doubtful potential ethical issues, so as to enable them, if possible, to avoid future sanctions.
The writer is a Barrister and Assistant Professor of Law, Northern University Bangladesh.
