Current Scenario of Appointment of Judges and the Political Influences involved in the appointment of Judges

Current Scenario of Appointment of Judges and the Political Influences involved in the appointment of Judges- illustrate

Introduction

For a democratic state, the power rests on three separate organs, namely the executive, the legislature and the judiciary. [1]The constitution of Bangladesh vests the executive power in the executive and the legislative power in parliament. Though there is no specific vesting of judicial power, it is vested in the judiciary; the judiciary comprises all courts and tribunals, which performs the delicate task of ensuring rule of law in the society. A social structure remains coherent and cohesive with the aid of a sound judicial system. Judiciary redresses the grievances of the people and resolves disputes. The dysfunction of judiciary impacts more severely than that of any other institution as it removes from the mind of people the sense of attachment with the society. In Bangladesh the Judicial norms and practice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary.

Conceptual Analysis

Let’s start with some conceptual facts which will make my report more understanding and thoughtful to the readers. Bellow the conceptual facts are given and discussed.

i. Independence of Judiciary

Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from executive or legislative or from the parties themselves or from the superiors and colleagues (Halim, 1998; 299). The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence (Bari, 1993, 2: Rahman, 2000):

· Substantive Independence of the Judges

· Personal independence

· Collective Independence

· Internal Independence

ii. Separation of the Judiciary

Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence (Hadley, 2004). The concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive). For example, in Bangladesh the president in consultation with the Supreme Court according to the constitution appoints judicial officers other circumstances include functional aspects of the judicial system when the administration of justice is in some way, affected by executive orders or actions. Complete separation is relatively unheard or outside of theory, meaning no judiciary is completely severed from the administrative and legislative bodies because this reduces the potency of checks and balances and creates inefficient communication between organs of the state (Hadley; 2004). A high degree of separation, however, can be a strong guardian of judicial independence, as this paper will attempt to prove. The constitution of Bangladesh is the first defense of judicial independence, presiding over all the “Republic’s affairs and framing the organization and administration of the government.

iii. Judicial Independence in the Constitution

[2]Part VI of the constitution deals with the judiciary. Art.7 provides that all powers in the Republic shall be effective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps the limit of his power is a necessity, on the judiciary. Art. 35(3) of the constitution provide “Every person accused of a criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by the law. Article 116A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975 discussed later in the paper: Subject to the provisions of the constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.

iv. Separation of the Judiciary in the Constitution

[3]The judicial independence of all judicial officers is unconditional according to the constitution of Bangladesh. This ideal is protected primarily through the concept of separation of the judiciary from the other organs of government. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 and 116 stating respectively. Recently, separation of the judiciary from the executive has been argued as a necessity based on the unconstitutionality of the present organization and while this may well be true, it appears to be he consequential improved functional independence of the judiciary that is the fundamental reason for separation with unconstitutionality being only an argument to ensure its enactment (Dr. Kamal Hossain, 5th March, 2004).

v. Independence Judiciary in Bangladesh: How Far the Dream!

Separation of judiciary from the executive and judicial independence appears to have become an endless process. The debate started in the late 18th century and continues even now (Ali, 2004). However now it is important to understand the present structure of the judiciary to be able to understand where executive intrusions into the judiciary originate and how these affect the independence of individual judges.

1.0 The Problems and Obstruction of Separation of Judiciary from the Executive in Bangladesh

The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. I have point out here some common problems.

i. Lack of Consciousness: Of the total people constituting the electorate of our country, I am sure more than 10% voters do not know what actually is mean by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system.

ii. Lack of Political Will: Any kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. And Government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate the judiciary from the executive it would be impossible.

iii. Lack of Interaction with Other Courts: Lack of interaction of the judges in Bangladesh with their counterparts in other countries is a possible factor for their insular understanding of law.

iv. Lack of Strong Civil Society: Civil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.

v. Lack of Democratic Culture: We have reached upon 41^st years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have set up a democratic government. But we have so far made little progress in practicing parliamentary culture.

vi. Executive Dominated Judiciary: Article 115 of the constitution: Appointments of persons in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf. It is noticeable in this article that the President with exercising this power is not required to consult the Chief Justice of Bangladesh.

vii. Lack of Popular Access to Justice: Article-234 unlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh.

viii. Overlapping Competencies: Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary. Generally ministries do not have legal officers of their own, and the public prosecution service is an adhoc arrangement. A directive of the Masdar Hossain Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this directive has not been carried out.

ix. Corrupted lawmakers: The air of separation of judiciary is entering; side by side it has also bad smell. Maximum judges and lawmakers are corrupted. The takes bribe spontaneously and make the case diverted. It is a very common phenomenon in our country. Recently Transparency International of Bangladesh (TIB) exposed the corruption of the lawmakers (Table-1).

Table: Corruption of Lawmakers.

x. Government Negligence: T 10. The High Court Division of the Supreme Court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But the government has so long remained headless and negligent to the High Court Division’s directives. When the government itself does not honor the highest court of the country, how can the people in general confide in the judicial system and such underhand practice.

2.0 Example of a true event of political interference even though the separation of judiciary was made

Name of the article- JUSTICE DENIED: THE CASE OF SHAMSUL ALAM GOLAP

In the report it has focused on extreme violation of human rights and severe deterioration of law and order in Bangladesh since taking over power by the incumbent Awami League government. It will place the case of Shamsul Alam Golap, a leader of an opposition party. He has been arbitrarily arrested, tortured in custody and produced before mass media, upon torture and threat, to confess himself as a criminal. But his refusal to confess, as per the force, has resulted extension of detention, torture and confiscation of basic human rights.

What has happened to Shamsul Alam Golap?

Shamsul Alam Golap was the President of Bangladesh Islami Chhatrashibir, an opposition student organization to the ruling party, of Rajshshai University unit. On 9^th of February 2010, a Chhatra League activist of Rajshai University Fafuk was murdered. Immediately after the murder, 3 caseshad been lodged in Motihar police station, Rajshai, in connection with Faruk murder. The President of Rajshai University Shibir, Shamsul Alam Golap was listed in those cases as the main accused.

The following issues need to be considered:

^· Proceedings of forceful confession before media: Shamsul Alam Golap was produced before media. But ahead of that RAB had tortured him, tried to have confession of his involvement in the murder and utter the name of top Jamaat and Shibir leaders in connection with the murder. But he denied to admitting so.

· Police remand and brutal torture: It has been common scenario that ruling party lodge cases accusing the opposition leaders. Upon the directives of the executive body of the government, law enforcing entities carry out brutal torture in remand in a bid to accomplish political revenge on the oppositions. Different mode of torture is the tool to have confession in remand.

· Abuse of Law and Judiciary by the ruling party for political interests: Independence of Judiciary is one of the prime factors for the sustainability of democracy. Separation of Judiciary is one of the mechanisms of ensuring independence and accountability of the judiciary.

3.0 Comparison Between Bangladesh’s and Some Other Country’s Judiciary Fairness

I think till now we have got some idea about our judiciary system and after the separation how it is still creating difficulties for the fair judgments. Now let’s talk about some other developed countries that not only made their judiciary separated from the political interference but also practices and show it in their decision making. I have decided to show the situations that are currently practices in the United States, Australia, and Canada.

United States: Judicial independence has been a core political value in the United States since the founding of the republic. They have shown a deep concern this area and thus it reflected in their judicial decisions. They have maintained a fair communication between the judges and political people and never tried to cross their lines or interfere in the decisions because of their hard belief. A belief in judicial independence, however, exists in the United States alongside an equally strong belief in democratic accountability.

Australia: In Australia, as a general proposition, government expects judges to be impartial. This is only a “general proposition” because government frequently expresses

displeasure at judicial decisions that are contrary to government rulings or policy, and varying degrees of antagonism towards judges who make them. Government interests that may be affected by judicial decisions are almost infinite in number. Nevertheless, the Australian judiciary is safe from the kind of interference that one finds in some other countries. In Australia, there is no communication outside open court between government and judges concerning the result or the details of any decision a judge may be required to make. Government does not attempt to influence judicial decisions, as is the case in many other countries.

Canada: Judicial independence is a cornerstone of the Canadian judicial system. Under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislative. A number of institutions foster judicial independence, notably the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs and the National Judicial Institute. These institutions help maintain a distance between the government and the judiciary in areas like discipline, pay and benefits, and continuing education for judges

So after knowing all those things above we can easily sight the differences between our judiciary and the judiciary of United States, Australia and Canada. These are only few there are many more countries that practices fair and equal judiciary.

4.0 Recommendations

From the above discussion I have some recommendations for removing the political interference which is creating judicial problems and separating the judiciary from the executive and ensure the judicial independence in Bangladesh.

Political interference is a major impediment to the proper justice. If the judiciary is separated, cases can be dealt without political interference. We cannot expect proper justice if judiciary does not work independently.

· [4]In Bangladesh with immediate technical assistance for carrying out the directives of the Masdar Hossain judgment, particular knowledge of how the functional separation of powers is initiated and implemented in other countries should be seriously considered (ADB, 2003).

· The appointment of Judges of the Supreme Court, currently done by the President, is susceptible to external influences in a selection process that is nontransparent. At present, lower courts are mistrusted and the judiciary in general, if it is to be effective, must encourage and support citizens’ access to justice.

· Improvements in court administration must be made at both the national and the District levels. Administrative reorganization is vital at this time in order to put in place the structures and processes necessary to administer an independent judiciary. At the district level, to reduce the administrative workload of the District Judges, the administrative officer and other staff, on whom the judge relics in administrative matters would be upgraded, in part by developing career path for them.

Besides these I have some other specific recommendations:

The establishment and enforcement of a procedural calendar for the life of a case;

i. The enforcement of time limits for processing cases, backed by a regime of costs and/or other sanctions to discourage non-compliance;

ii. [5]The elimination of unnecessary procedural steps for, and other hurdles to, the enforcement of judgments;

iii. Improved courtroom facilities, as well as technology support, with automated case tracking systems, as part of the CMIS to be installed in the Supreme Court and the District Courts.

5.0 Conclusion

Judiciary forms the basic element of the statehood shaped by deliberate policies to establish social justice and equality of all citizens. In a modern society it must, therefore, reflect the fundamental principle of state policy as well as universal value and ethics of international human rights regime, which are not fundamentally altered by cultural or class differences. In order to meet the challenge of the next century and to accomplish the constitutional goal, to secure equal justice in economic, political and social life, it is important to extend the judicial mind and the due process in all spheres of administrative dealings with the affairs of men and society. In order to get back the trust of the public upon the Judiciary, it is essential to be separated from the Executive and politics. First of all the government has to take steps to remove all the impediments. To ensure the true separation of judiciary civil society should come forward, and the politicians and executive authority should understand that a sound judicial system keeps equilibrium of a society. If the judicial edifice weakens, the democratic system will not function, and social fabric will be broken down. So, here all the people concerned with judiciary have to play active and effective role from honest point of view. Then the independence of judiciary will bring effective fruits in future.[6] Total Word counted: 3610

References

v Constitution/Laws/ Cases

1. Abdul Bari Sarkar v Bangladesh 46 (1994) DLR (AD) 37

2. Abu Bakr Siddique v Mr. Justice Shahabuddin Ahmed 49 (1997) DLR 1

3. Aftabuddin v Bangladesh 48 (1996) DLR HCD 1

4. Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl) 1

5. Bangladesh v Idrisur Rahman 1999 BLD (AD) 291

6. Bangladesh v Shahjahan Siraj 32 (1980) DLR (AD) 1

7. Bangladesh v Shafiuddin Ahmed 50 (1998) DLR (AD) 27

8. Case no. 4 dated on 08 February, 2010; Case no. 5 dated on 09 February, 2010; Case no. 14 dated on 15 March, 2010

9. Constitution of Bangladesh, 1972 Chapters II, III, VI, IX, Fourth Schedule Code of Criminal Procedure 1898

10. Commissioner of Taxes v Justice S. Ahmed 42 (1990) DLR (AD) 162

11. Idrisur Rahman v Shahiduddin 1999 BLD 291

12. Kudrat e Elahi Panir v Bangladesh 44 (1992) DLR (AD) 319

13. M. Saleemullah v Bangladesh (13th Amendment case)

14. Sections 24, 25, 26 of the Evidence Act, 1872

15. Shahar Ali v AR Chowdhury 32 (1980) DLR 142

16. Secretary, Ministry of Finance v Md. Masdar Hossain and others 20 (2000) BLD (AD) 104

17. Walter Valente Vs Her Majesty the Queen, 2 R.C.S. 1984, Masdar Hossain Case

v Books and Articles

1. Ahmed, Syed Ishtiaq (2003), “Separation of the Judiciary”,The Daily Star 13 October 2003.

2. Ahmed, Naimuddin (2001), “The Problems of the Independence of the Judiciary in Bangladesh”, in Bangladesh Institute of Law and International Affairs (BILIA), Human Rights in Bangladesh: A Study of Standards and Practices , BILIA, Dhaka, at 173.

3. Bangladesh Legal Aid and Services Trust (BLAST) and others Vs Bangladesh and others, WRIT PETITION NO. 3806 of 1998

4. *Choudhury, Asad Hossain (1997): “The Independence of Judiciary from the Executive- A Constitutional Obligation”, Journal of Dhaka Law Reports, 49 DLR, pp.3-6.

5. Citizens’ concern over appointment of judge in Supreme Court by Anisur Rahman : published on the Daily Star dated on November 8, 2003

6. Farooqui, M I (1996): “Judiciary in Bangladesh: Past and Present”, Journal of Dhaka Law Reports, 48 DLR, pp.65-68.

7. Human Right Watch on its official website www.hrw.org on July 7, 2010

8. Islam, Mahmudul (2003), Constitutional Law of Bangladesh, Mullick Brothers, Dhaka 2nd Edn (Reprint), at paras 1.85-1.87, 5.8, 5.233ff

9. Islam, Mahmudul, ‘Separation of Judiciary’, The Daily Star, 19 March 2002

10. Kamal, Mustafa J (1995): “Bangladesh Constitution: Trends and Issues”, Journal of Dhaka Law Reports, 47 DLR, pp.46-53.

11. Md: Abdul halim , Constitutional Law of Bangladesh, The Theory and Practice.

12. Rahman, Latifur CJ (2000): “Judicial Independence and Accountability of Judges and the Constitution of Bangladesh”, Journal of Dhaka Law Reports, 52 DLR, pp.65-69.

13. The Constitution of the people’s Republic of Bangladesh

14. The Daily Star, 26 March, 2010

v Reports

1. Asian Development Bank, Law and Policy Reform at the Asian Development Bank, 2003.

2. GoB, Strategy for Legal and Judicial Reforms, September 14, 2000 (mimeo)

3. Richard B. Hoffman and Samuel D. Conti, ‘Reorganising the Registrar’s Office to Improve Case Management and Court Administration’, Legal and Judicial Capacity Building Project for Bangladesh, Ministry of Law Justice and Parliamentary Affairs, GoB, November 2002 (mimeo)

v Others

1. ADB. 2003. Judicial Independence Overview and Country-level Summaries. Asian Development Bank. Retrieved January 10, 2005, from http://www.adb.org/Documents

2. Ali, S.A.M.M. 2004. Wither separation of the judiciary. The Daily Star. Retrieved from http://www.thedailysatar.net/2004/01/07/d401070 20330.htm

3. An eminent lawyer and the president of the constituent assembly to frame the constitution of the peoples’ Republic of Bangladesh.

4. Bradley,Anthony. “Separation of Powers in a Constitutional Democracy” . Available at. http://www.ifes.org/rule_of_law/JI_Conferences/Malawi/Paper – Bradley.pdf (October 28, 2003).

5. Bari, H 3. .M. Fazlul. 2004. Separation of Judiciary How long will it take? Retrieved from: http://www.thedailystar.net/law/2004/08/04/vision.htm.

6. Bari, M. Ershadul. 1993. The Dhaka University Studies. Part. F, IV; 1: 2.

7. Coke, Edward. The law and the constitution,1915. P. 202.

8. Dicey, A.V. Administrative law, 1994, pp.34-36.

9. Dr. Kamal, Hossain. 2004 5th March, Interview by Sierd Hadely with Dr. Kamal Hossain, senior most lawyer of the Supreme Court Bar Association and joint-writer of the Constitution of Bangladesh…

10. /Events/2003/RETA5987/Final_overview_Report_pdf

11. Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh.–Retrievedfrom

12. Halim, M.A. 1998. Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka: Rico printers.

13. http://www.bssnews.net/newsDetails.php?cat=0&id=88329&date=2010-02-10

14. http://www.thedailystar.net/newDesign/news-details.php?nid=131655 on 26 March 2010

15. Hoque, K.E. 2003. Judiciary. In Banglapedia. 6,Dhaka: Asiatic Society of Bangladesh.

16. Hussain, M.M. 2003. Reporting on bail requires thinking. The Daily Star. Retrieved from http://www.the dailystar.net/law/200306/04/corridor.htm

17. K.M.Hasan, Justice. Independence of judiciary and the rule of low, The Independent, Daily newspaper,January27, 2004.

18. Montesquieu, Barron De. The spirit of the laws. (Trans. Nugent).pp. 151-52.

19. Rahman, M. Ziaur. 2005. Separation of Judiciary from the Executive. A monthly Current Affairs, January-2005. Dhaka: Professors Publishers Ltd.

20. Rahman, Mizanur. 2000. Governance and Judiciary. Governance: South Asian Perspective (Eds. Hye, Hasnat Abdul). Dhaka: University Press Ltd.

21. Rahman, S.M. Matiur. 2004. The Problems of Separation of Judiciary from the Executive. Retrieved from http://www.thedailystar.net. /law/2004/09/04/.

22. Rahman,Khan Ferdousour. Independence of judiciary: A dream comes true.Retrieved from:http://www.thedailystar.net/law/2007/03/04/opinion.htm

23. Robson, W.A. 1951. Justice and Administrative Law.

24. The Daily Star, 20 June 2004.

25. Takwani, Thakker,C.K. Lectures on Administrative Law. 1980, Third edition, Reprinted-2008. Eastern Book Company, Lucknow. ISBN” 978-81-7012-988-2.

26. Www.ais-dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf

[1] Art 94, Constitution

[2] See in particular Report of the Hamoodur Rahman Law Commission, Chapter IX, pages 231 to 267.

[3] Justice Naimuddin, “The Problems of the Independence of the Ju diciary in Bangladesh”, in Bangladesh Institute of Law and International Affairs (BILIA), Human Rights in Bangladesh: A Study of Standards and Practices , (BILIA, Dhaka: 2001) at p.187.

[4] This had reportedly been suggested by the Ministry of Establishment in its response addressed to the Ministry of Law regarding the Dr aft Rules

[5] Hussain, M.M. 2003. Reporting on bail requires thinking. The Daily Star. Retrieved from http://www.the ailystar.net/law/200306/04/corridor.htm

[6] Article 19 of ICCPR