Law opinion
For a functioning and an independent Judiciary
in Bangladesh
Mohammad Sirajul Islam
Arobust and independent judiciary is imperative in establishing rule-based governance in the country. It can restrain and hold the executive accountable together with other state institutions. A functioning and an independent judiciary could be established by bringing in changes in various institutional and operational aspects of the judiciary. In this context, the Institute of Governance Studies (IGS) of BRAC University has recently produced a policy note entitled 'The Judiciary: Policy Note'. The policy note has provided a number of policy recommendations under four themes, i.e. independence, accountability, efficiency, and effectiveness. These policy recommendations, if fully implemented, would assist both the higher and subordinate judiciary to perform collectively as an institution of accountability by resolving disputes in impartial manner.
Independence of the judiciary
Form a Supreme Judicial Commission or a collegium for appointment of Supreme Court (SC) Judges
Appointment of Supreme Court judges has been a controversial issue in Bangladesh. The 1972 Constitution stipulated, “The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President after consultation with the Chief Justice” [Article 95(1)]. In 1975 the explicit requirement of the consultation with the Chief Justice was removed through an amendment. A landmark decision of the Supreme Court has re-asserted the role of the Chief Justice in 2008 (Idrisur Rahman v. Bangladesh 60 DLR 714). However, appointment of a compliant Chief Justice may not act as a significant safeguard in appointing judges. Therefore, a Supreme Judicial Commission or a collegium of judges headed by the Chief Justice can be formed which will identify appropriate persons for appointment as judges and recommend their names to the President. Specific eligibility criteria for SC judges should be determined. Such eligibility criteria may include the number and nature of cases conducted, handling of complex legal matters, and level of professional standard.
While considering persons for appointment as judges the commission or the collegium will seek the opinion of Supreme Court Justices about the competency of the candidates. A candidate may be appointed only if two-third of judges consulted are satisfied with the person's competency. The process of appointment should be made as transparent as possible, for example, by putting the candidates' educational and legal records in public.
Establish a separate secretariat for financial and administrative independence
Although subordinate judiciary has been separated from the executive still it has to depend on the executive for its budgets and logistics. Such dependency has severely undermined the effective functioning of the judiciary. For example, while many new magistrates joined the subordinate courts in 2008, they had to share court rooms and couldn't hold sessions regularly. Even they had to share stenographers. The Supreme Court judges also reported similar administrative problems in their work. In order to solve these problems a separate secretariat needs to be established under the supervision of the Chief Justice.
Accountability of the judiciary
Enact a new contempt of court act
Contempt of court is seen as a shield in the protection of the judiciary from criticisms. However, it is generally felt that the current legislation, the Contempt of Court Act 1926, has been used more to protect judges from justified criticism and public scrutiny. Therefore, this Act needs to be revised to strike a balance between protection of judiciary and freedom of expression. IGS recommends enactment of a new Act which will provide a proper definition of contempt of court and allow the press to report and comment on court proceedings and functions.
Establish a Grievance Cell at Supreme Court
At present there is no mechanism through which an aggrieved person can lodge his/her complaints about service of the Supreme Court. A cell could be established under supervision of the Chief Justice which will receive complaints, investigate into and publish reports after every three or four months. Such a cell will bring about a systematic improvement in the Supreme Court.
Activate Right to Information Act 2009 and widespread circulation of annual report
The Right to Information Act 2009 has provisions of suo motto disclosure of information. The Chief Justice could activate the provisions by putting all judgments and orders on the website. In addition, the annual report, published by the Supreme Court since 2007, should be informative and analytical and the Chief Justice should ensure its widespread circulation.
Modernize performance evaluation system of judges
Performance evaluation is seen as internal mechanism of functional accountability of judges. Presently, the performance of subordinate court judges is evaluated by way of Annual Confidential Reports (ACRs). It is commonly held that ACR system encourages tadbir (lobbying). Therefore, the ACR process is in need of modernization. The ACR could be divided into two parts. The first part is to assess personality traits, i.e. honesty & integrity, sense of responsibility, discipline, ability of decision-making, etc. and the second part to analyse judges' legal performance i.e. quality of judgments, timeliness, court management, etc.
Efficiency of the judiciary
Ensure effective and dynamic training facilities for the judges
The Judicial Administration Training Institute (JATI) imparts training to the subordinate court judges. Training provided by JATI is repetitive of what judges achieved in their university education and hence inadequate to provide judges with a broader outlook including knowledge of contemporary international legal issues and necessary practical skills. In this context, a training need-assessment should immediately be undertaken to identify areas of laws such as cyber crime, money laundering, human rights, ethics, arbitration and reconciliation, etc.
Another interesting and innovative mode of orientation for the judges of the subordinate courts could be a form of 'apprenticeship' for the newly-recruited by placing them with the High Court judges for a designated period of time. They could work as 'Research Assistants' of the judges and help them with academic research, drafting of legal instruments, and writing of judgments. After this initial phase of 'apprenticeship', they can then receive further training at JATI. Such apprenticeship will develop a working relationship between the judges of the Supreme and the subordinate courts.
For the judges of the Supreme Court the JATI could organize annual colloquiums/conferences following the Sri Lankan experience where it will invite judges from home and abroad. These colloquiums would be an appropriate venue for judges to share experiences and exchange views about issues relating to substantive areas of law as well as judicial administration and ethics.
Phase out deputation of judges in executive offices
Deputation of judges in various ministries has become a critical concern in Bangladesh. In principle, the practice of deputation inhibits the independence of the judiciary as it brings a number of judicial officers directly under the control of executive offices. Deputation of judges could be phased out by adopting two intertwined steps. A separate cadre should be introduced to meet demand of ministries for law officers. On the other hand, adequate promotion opportunities for judges should be provided to discourage them to opt for deputation. In this context, promotion policy of public universities could be followed where a teacher can apply for promotion if s/he fulfils certain criteria. Accordingly, qualified judges may continue with their existing duties but will receive pay and benefit according to the promoted position.
Revise salary of judges
The present salary structure of judges is significantly low compared to other South Asian countries (Table- I). Such a poor salary and other benefits fail to attract competent lawyers in joining the higher judiciary. In the subordinate courts, the situation is even worse. Due to low level pay scale (Tk. 6800 until 2009) as many as 49 entry level judges left the service. Therefore, a massive increase in salary of Supreme Court Judges is necessary. A raise in the level of salary of judges, commensurate to the decent living standards, may attract a different, and hopefully a better, category of lawyers and meritorious law graduates in the judiciary. The Supreme Judicial Pay Commission could be referred to recommend appropriate salary and other benefits for judges and Government should implement such recommendations with immediate effect.
Effectiveness of the judiciary
Reduce case backlog by adopting a holistic approach
There exists excessive case backlog in the justice sector in Bangladesh. This backlog is seriously delaying dispensation of justice. Three factors are responsible for the existing backlog: (i) structural deficiency, for example, shortage of judges, inadequate number of court houses; (ii) legal and procedural complexity and ineffective case management system, for example, 80 per cent of court cases have their genesis in land disputes; and (iii) weak judicial administration, for example, frequent transfer of Investigation Officers (IOs) of the Police Department.
In order to resolve these issues three measures could be taken simultaneously. These measures are: (a) appointment of sufficient number of judges at both subordinate and higher courts and court modernisation through application of information and communication technology (ICT) in the area of listing cases and submission of documents; these measures will address structural deficiencies (b) revision of land laws and simplification of land management to reduce rate of case filing; and (c) establishment of an investigation unit at every police station; this unit will keep and update records of all the cases pending in the court within its jurisdiction and will submit witnesses when necessary. When an investigation officer of a police station is transferred, s/he will leave a full departing report for his/her succeeding officer.
Independent functioning of the judiciary is sina qua non to make accountable exercise of power in such a democracy like Bangladesh where the same person holds the helms of the executive and the legislature at a time. The policy recommendation put together in IGS policy note will help the judiciary to become an independent entity.
[For the full text of the Policy Note please visit IGS website: www.igs-bracu.ac.bd]
The writer is a Research Associate/Lecturer, Institute of Governance Studies, BRAC University
