Recent Scenario of the Judicial system in Bangladesh: A critical Analysis
Introduction:
Since its independence in 1971, Bangladesh has preserved its common law traditions. It does not have a separate constitutional court. It maintains a two-tier judicial system, along with special criminal and civil courts. The Supreme Court is at the apex of the judiciary. Below are district and magistrates courts. Traditionally, Bangladesh employed a slightly different appointment system for each of the three levels of courts: Supreme Court Justices, judges of subordinate courts and the magistrates. Judges of the Supreme Court are appointed by the president upon consultation with the Chief Justice of Bangladesh. Traditionally, the judges of the Supreme Court are appointed from amongst the practitioners and judges of the subordinate judiciary on the basis of their legal acumen, neutrality and professional reputation. The Supreme Court of Bangladesh has known many renowned jurists and judges. The relationship between the lawyers and the judges has always been that of mutual respect and admiration. The judiciary is the most corrupt service sector, says a Transparency International, Bangladesh (TIB) household survey report. Part VI of the Bangladesh Constitution explains Judiciary. The Article 95(1) of constitution vested power to President to appoint its judges. Conventionally the Law Minister selects Chief Justice from the appellate division judges. He requests the President to give oath to the Chief Justice. President, sometimes, in consultation with the Chief Justice appoints other judges of the Supreme Court. The president also gives a list to Chief Justice and requests to give oath to High Court judges. This is the normal procedure of judicial appointment of Higher Judiciary. Different national and international bodies including the World Bank have questioned this amendment. “It looks that a section of people [the people of the ruling alliance] is beyond the jurisdiction of judiciary” he added (The Daily Star, April 25, 2010).
Political Control of the Judiciary:
Since Bangladesh gained its independence in 1971, the country has experienced an on-and-off, fragile democratic culture and sustained periods of military rule. Throughout that time, however, Bangladesh has also had a very vibrant civil society and a robust and independent judiciary. In the last 21 months, the government has: (a) Compromised the independence of the judiciary by appointing incompetent and partisan Judges to the High Court division of the Supreme Court; (b) Re-organized the benches with their active political supporters in the most important writ and bail benches along with the appellate division by appointing less competent Judges by superseding other senior judges, which was not the custom of the highest judiciary of the country; and (c) Made regular undue intervention in judicial decisions through the politically appointed Attorney General’s office and that of Public Prosecutors’ (Savebd.com, April 27, 2010;The Daily Star, April25,2010). The recent appointment of the Chief Justice and twelve other judges in the High Court – whose loyalty to AL is common knowledge among the legal practitioners – is an attack on the country’s judiciary system. Such large-scale political appointment in the judiciary is unprecedented in Bangladesh. Justice Khairul Hoque was selected as the chief justice by superseding two senior Justices. First thing he did after joining office (even before being sworn in) was to hang up picture of Sheikh Mujibur Rahman in the office—an incident never done before since the death of Sh Mujib. This proves how devoted he is to AL. The high court benches have been restructured in such a way that all key responsibilities (such as power to hear writ petitions and to award stay orders) are with known pro AL judges.
People are increasingly losing their trust in Bangladesh judiciary, as the current regime has already reshaped it and started using it as a tool for dominance and control. Gross violation of human rights, clemency to the convicted criminals belonging to the ruling alliance, and oppression of the political opponents through false and concocted cases are some of the clear manifestations of the AL-controlled judicatory in Bangladesh. The current precarious state of the Bangladesh judiciary has been depicted in a recent issue of the journal of Asian Culture and History:
The Daily Star (April 25, 2010) also reports that the government has taken steps to appoint hundreds of judges in the lower courts. As reported by a BBC journalist, “Past AL-background, political loyalty to the current regime and hostility to the opposition parties are the key yardsticks by which the government is making all appointments and giving promotion and tenure” (Daily Naya Diganto, March 23, 2010).[1]The newspaper report below shows two persons breaking the office of Supreme Court’s chief justice in 2006. These very two gentlemen are selected as the Supreme Court Justices. In another case, a person who is under murder case charge has also been picked as a Supreme Court Justice. When the newspaper disclosed his criminal record, the government forced the court to withdraw the charges against him, which shows the extent of moral degradation of the premier judiciary in Bangladesh where most judges are actually political activists of the ruling party.
Recent scenario of Judiciary system:
It is only in the last few years that appointment of judges in the higher judiciary of Bangladesh became a subject of political debate. Before the inception of caretaker government system, the judiciary largely remained in the background and seldom became a subject of political debates. However, with the introduction of the caretaker government system, which envisages under that the Chief Advisor and head of the caretaker government shall be the last retired Chief Justice of Bangladesh, the apex judiciary became the focal point of all political attention. The political parties suddenly engaged in the competition of appointing judges in the apex judiciary solely on political grounds. The doctrine of political question has evolved in constitutional jurisprudence in many countries which requires the courts from adjudicating on political issues in order to uphold the neutral and apolitical image of the judiciary. However, the impact of such political appointment has been felt very recently, when some judges of the higher judiciary have trespassed into adjudicating on politically disputed issues. This has adversely affected people’s confidence in the judiciary and has questioned the long-standing politically neutral character of our judiciary.
Proposal:
Bangladesh Supreme Court Bar Association arranged a seminar in 2007 titled ‘Judicial reforms and independence of judiciary’. In the seminar former chief justice Mahmudul Amin Chowdhury proposed to form a committee to appoint judges. He also proposed that a seven-member committee should be formed and the committee ‘should also include two judges from the Appellate Division and the High Court Division each, the attorney general and the president of the Supreme Court Bar Association’. (See New Age, August 11, 2007, p1). Barrister Amir-Ul-Islam, the then president of Bar, echoed the proposal and criticised the dubious ways of appointment of judges of the Supreme Court and supported Justice Chowdhury’s suggestion of selection of judges by a selection committee. Recently, most newspapers and concern scholars are visualising our judicial appointment process. It is like UK’s old ‘secret sounding’ and ‘tap on the shoulder’ process. The media also repeats that our system is that of ‘who they know’ not ‘who they are’. Merit and good character are sidelined. If the United Kingdom can change their system and exclude Lord Chancellor from the chief justice, which is older than democracy, older than parliament, older than Magna Carta, older than the Norman Conquest, why can’t we change their colonial system.
Recommendation:
1. Form a Supreme Judicial Commission which will identify appropriate persons for appointment as judges and recommend their names to the President.
2. Determine specific eligibility criteria for judges.
3. Establish a separate secretariat under the supervision of the Supreme Court.
4. Replace the existing Contempt of Court Act with a new, dynamic one. Presently, the performance of subordinate court judges is evaluated by way of Annual Confidential Reports (ACRs). It is commonly held that the process has failed to encourage accountability and is not considered to be an effective supervision mechanism. ACRs encourage tadbir (lobbying) with subordinate judges being over-cautious and meek in the hope of receiving glowing reviews from senior judges. ACRs are also susceptible to political interference as subordinate court judges feel that their ACRs would contain negative remarks if they fail to tow a particular political line.
5. Modernize the ACR. The ACR process is in need of modernization. The ACR could be divided in two parts: the first part to assess the subordinate court judge’s personality traits, i.e. honesty and integrity, sense of responsibility, self-confidence, discipline, conduct, obedience to superior judges, level of cooperation, ability of decision making, etc. The second part is to include an analysis of judges’ legal performance, that is, information about the number of cases decided upon, the quality of judgments (whether the judgments have followed the law and relevant precedent), timeliness, court management, time taken to deliver judgments, interaction with litigants and lawyers in court, among other issues. In order to make ACR process transparent reasons and evidence need to be provided. Evaluating judge has to cite references of at least five judgments of a particular judge to justify his/her decision in the ACR and explain why those judgments are considered to be particularly extraordinary or unsatisfactory.
6. Formulate new rules to conduct the personnel matters of subordinate courts.
7. Establish a ‘Grievance Cell’ at the Supreme Court under the supervision of the Chief Justice.
8. Ensure effective and dynamic training facilities for the judges.
9. Phase out deputation of judges in other ministries.
10. Formulate new rules to provide adequate promotion opportunities for judicial officers.
11. Implement the recommendation of the Judicial Pay Commission with immediate effect.
Conclusion:
For better democracy and upholding rule of law the higher judicial appointment system needs to be transparent and democratic. The main actor of the legal system should consider overall circumstances. They should keep in mind that Bangladesh is now under the threat of ‘Failed State’ by foreign policy magazine. The human rights of the people are in vulnerable position (October Odhikar Report). The freedom of speech is under threat. We should remember our past and take lessons from history. Law enforcement cannot be an effective anti-corruption tool unless the judiciary is independent both of the rest of the state and the private sector. In cross-country research, measures of judicial independence are related to other positive outcomes such as higher levels of growth, and of political and economic freedom. Despite mounting criticism, the judiciary repeatedly demonstrates a tendency, especially in high-profile and electoral cases, to lend its process to the service of the state. In numerous cases challenging the constitutionality or legitimacy of measures that are palpably in violation of the law, the Supreme Court has departed from established legal principle in order to legitimate executive action. With few exceptions, judges are seen to have collaborated with a government that has violated many of the rights of its citizens, including freedom of expression, freedom of the press, freedom of assembly and the right to free and fair elections.
References:
Rahman, M. Z. (2005). “Separation of Judiciary from the Executive”, Monthly Current Affairs, January, 2005.Dhaka: Professors Publishers Ltd. Jalil, M. A. and M. S. Islam (2010). “Towards a long-term development vision for Bangladesh: Some socio-economic and legal aspects”, in The Journal of Asian History and Culture,(Canada),Vo.2,No.2,pp.58-70.The Daily Star (April 25, 2010).“JS body chief’s remark threat to judiciary”, Available online at:http://www. The daily star.net/story. php? nid=135737 The Daily Star (April 25, 2010). “100 judges to be appointed at the lower courts”, Available on line at: http: //www. The daily star. Net/story. php? nid=135828
Daily Amar Desh (May 05, 2010). “Prosno shunei tele begune jole uthlen aiin protimontri” [The Law Minister became spurred with anger in the face of questions].
Daily Naya Diganto (March 23, 2010). “Ai Akromon Awami Leaguer Charitrogoto Fascibader Ongso” [this attack is a part of awami fascist character], by Serajur Rahman.
Judicial independence is associated with higher political and economic freedom according to Rafael La Porta,
Florencio Lopez-de-Silanes, Christian Pop-Eleches and Andrei Shleifer, ‘Judicial Checks and Balances’, Journal of Political Economy 112 (2) (2004). Their measure, however, is limited to the tenure of high court judges and the role of precedent.
[1] Daily Naya Diganto, March 23, 2010