“The Problems hindering the free Independence of the Judiciary”-explain
a. Introduction:
The justice sector and law enforcement are consistently referred to as two of the most corrupt sectors in public administration in Bangladesh. Corruption in these sectors have severe detrimental consequences – it stops the rule of law, denies citizens access to a fair trial, creates opportunities for unlawful detentions and other human rights violations, undermines economic and social development and fosters an environment of impunity.
This query focuses on the main components of the justice sector and law enforcement – judiciary of Bangladesh. Corruption in both these areas are rampant, their manifestations and causes are complex. This query examines the main causes of corruption in both these areas.
It finds that there are similar causes for corruption in both the judiciary and law enforcement. These include political influence, inadequate legal provisions against conflict of interest, unclear guidelines on appointments and transfers, poor implementation of laws, lack of transparency and access to information and inadequate accountability and disciplinary measures.
According to Barrister Ali 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 (2004, p.34). 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. Here in this project I tried to figure out the political interference on judiciary which can be counted as the main obstacle for getting a free and fair judiciary system in Bangladesh.
b. Corruption in the judiciary:
The judiciary in Bangladesh is divided into two parts – the Supreme Court and the lower courts. The Supreme Court has two parts – the appellate court and the high court. The latter hears original cases and reviews lower court decisions. The lower court is divided into criminal and civil courts and extends over 64 districts. The criminal courts in turn contain a two-tiered system – session courts and magistrate courts. Session courts handle trials for offences punishable by more than 10 years of imprisonment, while magistrate courts have sentencing authority of up to seven years (Transparency International, 2007)
“Barometer 2010 (a cross-country survey that collects the general public’s views on and experiences of corruption) citizens gave the judiciary a score of 3.5 on a 5-point scale (1 being ‘not at all corrupt’ and 5 ‘extremely corrupt’) (Transparency International, 2010). These findings are corroborated by the findings of a household survey conducted by Transparency International Bangladesh in 2010 which found judiciary to be the sector most affected by corruption – 88% of all households who sought judicial services reported being subjected to corruption and harassment. The level of corruption was found to have increased between 2007 and 2010 and the rate of corruption was higher in urban areas (90.5%) than rural areas (86.2%) (Transparency International Bangladesh, 2010).”
c. Separation of the Judiciary in the Constitution:
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:“Appointment of persons to offices in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”
It is principally through the above articles that the executive branch has been able to gradually intrude upon and influence the judiciary in Bangladesh, creating enormous problems regarding the quality of jurisdiction and the extent of judicial independence. 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, but Dr. Kamal Hossain said that “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 (5th March, 2004).”[1]
d. Main Causes of Corruption in the judiciary
The judicial system in Bangladesh suffers from lack of adequate funding, poor salary allocations for judges, lack of disciplinary and accountability mechanisms and lack of transparency, all of which contribute to corruption in the sector. The judiciary also lacks independence from political influence which leaves it vulnerable to manipulation and use for corrupt purposes and undermines anti-corruption efforts in the sector. Some of these main causes of corruption are discussed below:
1. Lack of disciplinary action against errant judges
Article 96 of the Constitution stipulates that a Supreme Judicial Council composed of the Chief Justice and the next two senior judges shall prescribe a code of conduct for the judges and in cases of gross misconduct by a judge, the council shall undertake an inquiry. If the inquiry finds the judge guilty of gross misconduct then the judge shall be removed from office by presidential order. However, in practice it has been alleged that the formation of Supreme Judicial Council often relies on external pressure. In terms of imposing penalties on offenders, the Supreme Judicial Council (and other similar judicial disciplinary agencies) was found to be only somewhat effective, receiving a score of 50 (“very weak”) out of 100 in a 2007 Global Integrity assessment of the judicial sector (unfortunately, more updated information on this indicator is not available).
Performance evaluation can be another mechanism to enforce accountability and prevent corruption in the judiciary. The Annual Confidential Reports (ACRs) are written by senior judges on their subordinates. In theory, these reports are meant to create deterrents to indulging in bad practice and corruption. Serious breaches of its standards could lead to criminal or disciplinary investigation (UNAFEI, no date).[2] However, it has been found that the ACR can itself be a source for corruption. Senior judges can use their influence to manipulate junior colleagues into following their wishes. At the same time, Barrister Islam said that “ACRs often do not reflect actual cases of corruption by judicial officers if they follow the directions of the ACR-writing judges (2010, np).”
2. Poor regulation of conflict of interest and asset disclosure:
According to a 2010 report from Global Integrity, extremely weak conflict of interest regulation is an important cause for the ineffectiveness of the Bangladesh judiciary. While the law provides guidelines regarding gifts and hospitality, no restrictions or rules are prescribed regarding members of the judiciary entering the private sector after leaving the government. Regulation regarding transparency of the assets of judicial officers is also lacking. Article 14 of the Code ofConduct of the Judges of the Supreme Court states that “A judge should disclose his assets and liabilities if, asked for, by the chief justice” (Global Integrity, 2007). Recently the Chief Justice of the Supreme Court disclosed his assets and this action were followed by two dozen senior judges. This information, however, is not publicly available (Transparency International Bangladesh).[3]The law does not require independent auditing of the asset disclosure forms of members of the national-level judiciary and there is no requirement for making the asset disclosures public. There are also no provisions in law to allow citizens access to asset disclosure information of the judiciary which hampers their ability to hold the judiciary accountable.
3. Lack of judicial independence
Judicial independence can be hampered by issues such as partisan political influence in appointments, postings, promotions and transfers which leads to inefficiency, compromises the professionalism of the judiciary, creates vested interests and erodes moral and ethical standards. Political influence can be defined as the main reason why we do not have an independent judiciary. This topic is discussed below:
Appointment of judges
Partisan political appointments of judges have been cited as a significant reason for judicial corruption and inefficiency. The Constitution nominally provides independence of the Supreme Court; however, there have been wide ranging criticisms about the nature and extent of de facto independence. The Constitution stipulates that the president should appoint the Supreme Court judges after extensive consultation, no clear guidelines exist on the process of consultation or the qualification of the judges. For example, Article 95 of the Constitution,“which entrusts the president with the power to appoint the chief justice (the most prestigious position in the country’s judicial system) falls short of explaining the consultation process for the appointment and leaves room for political maneuvering.” The Ministry of Law, Justice, and Parliamentary Affairs also retains, in the name of the President, the authority to decide the number of judges who will be appointed to the Supreme Court.
Where the constitution lacks:
Similarly, the Constitution also does not clearly specifythe qualifications needed for appointment of judges inthe appellate and high court divisions of the Supreme
Court. It only dictates that a person cannot be qualifiedfor appointment as a judge unless he or she is a citizenof Bangladesh and has practiced law in the SupremeCourt for at least ten years, has held judicial office inthe country for at least ten years, or has other suchqualifications as may be “prescribed by law”.In 1977 aconstitutional amendment was made to stipulate thatParliament shall enact a law for specifying qualificationsfor judges’ appointments. However, none of thesuccessive regimes has done so. Experts have alleged that is ostensibly to keep control over judicial appointments.
Controversial role of the President:
A recent example of controversy regarding appointments to the Supreme Court can be found in the appointment of Chief Justice A.B.M. Khairul Haque who was appointed by President Zillur Rahman in September 2010. “It was alleged that in selecting Haque the president superseded two more senior judges of the Appellate Division.The Supreme Court Bar Association, headed by members affiliated withopposition parties, condemned the selection” (FreedomHouse, 2011). Similar controversies arose in otherappointments to the Supreme Court. In April 2010, Ruhul Quddus Babu was appointed to the Supreme Court. He was one of nine people accused in the 1988 murder of a leader of the student wing of the political party Bangladesh Jamaat-e-Islami. The charges against all nine accused were dropped shortly before his appointment was announced, which elicited strong opposition by the Supreme Court Bar Association. The Chief Justice at the time, Mohammad Fazlul Karim, refused to administer the oath to Ruhul Quddus Babu. Some experts have expressed concern that politically motivated judicial appointments have increased in recent years. According to report by Global Integrity stated that ‘it is alleged that among the 45 Supreme Court judges recruited by the previous Bangladesh Nationalist Party (BNP)-led alliance government, more than one-third were affiliated with the ruling alliance and at least one-third of the 17 judges appointed by the current government have been involved in Bangladesh Awami League’s (current ruling political party) political activities (2010, np).’ The Code of Criminal Procedure Ordinance, which came into effect on 1 November 2007, stipulates that the Supreme Court should appoint all lower courtjudges and judicial magistrates and hold them accountable for their actions. Previously these appointments were made by various ministries. Thismove was widely welcomed by civil society organizations and lawyers as a first step towards ensuring judicial independence. However, doubts still remain about the practical improvement in the independence of the lower courts.
e. Conclusion:
To establish justice in Bangladesh, independent judiciary is a must. In order to get back the trust of the public upon the Judiciary, it is essential to be separated from the Executive. First of all the government has to take steps to remove all the impediments. Such as recently the Govt. Has formed the Judicial Service Commission, the will play an important role to make the judiciary independent. But it is also true that all the roads of justice may not be opened even after the 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.
Bibliography:
Transparency International. 2007. Global Corruption Report: Corruption and Judicial Systems. Retrieved on 2nd June from http://www.transparency.org/publications/gcr/gcr_2007.
1. Transparency International Bangladesh. 2010. National Household Survey. Retrieved on 28th May fromhttp://www.ti-bangladesh.org/research/ExecutiveSummary_23122010 FINAL.pdf.
2. Global Integrity. 2010. Global Integrity. Retrieved on 3rd June from Report:Bangladesh.http://www.globalintegrity.org/report/Bangladesh/2010.
3. Business Anti-Corruption Portal. 2012. Bangladesh Country Profile. Retrieved on 11th June from http://www.business-anti-corruption.com/countryprofiles/ South-Asia/Bangladesh/corruption-levels/judicial system/p34.
4. Parven, K. No date. Court Management Information System (CMIS) in Bangladesh: IT as a tool of justice, pp.122-167.
[1] Dr. kamal hossain (5th march,2004), editorial page, prothom alo.p.7
[2] Annual report, UNAFEI.nd.np.
[3] www.tib.global.com