Attitude towards judiciary needs to radically change
Monday, 28 December 2009
K. M. Mukta
JUDICIARY is an important and indispensable organ of a modern nation state. It is a rudder-like entity. It is the last and tested resort to uphold the Constitution, reflecting the aspirations of the people at large. But within the matrix of government's organs, the judiciary is apparently vulnerable, in terms of power and vitality in contrast with other two organs -- executive and legislature. Responding to Brutus in The Federalist No.78, Hamilton argued: "It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
This vulnerability of judiciary is appalling in the developing countries where there is a legacy of prolonged colonial rule, a bureaucracy with a demeaning or degenerated mindset, extreme poverty, corruption, fragile political parties aspiring after grasping power for the vested interests, and mass ignorance.
The sublime and august strength of judiciary is, however, embedded the confidence of the people on it, and their commitment to upholding rule of law, accountability or justice for all concerned. The popular and pragmatic adage says, "the degree of respect towards judiciary is a matchless standard to appraise the civility of a particular society or state."
Legally and morally, the state and government machineries are bound to abide by the orders of the court and to execute those. Regrettably, we observe various acts of drama and points of climax among those in the executive organ of the government to nullify the orders of the court or make them infructous. This kind of mindset of the executive and legislative organs does ultimately impairs the process, causing harms to the norms of justice, good governance and rule of law.
Judiciary is, thus, sought by many powerful quarters to set at naught. In the process, the executive organ, in collaboration with the legislature via some opaque arrangements, has been trying to marginalize the judicial organ.
Reflecting the need for promoting good governance and institutionalising rule of law on effective lines in Bangladesh in tune with the demand of the common people, the last caretaker government, despite its undemocratic character, took steps for separation of judiciary from executive. But there are no sustainable efforts now by the democratically elected government to ensure effective separation of power and for a real independent judiciary in the larger interests of the people. The executive organ is leaving no stone unturned to interfere in the technical roles of judiciary. Overt and covert efforts are being made by the people's elected government to make the working of an independent judiciary well-neigh impossible in Bangladesh.
The setting up of a separate and independent "Judicial Service Secretariat" has not yet taken place, though the highest judiciary of the country served an order for this purpose, in Masder Hussain's case (popularly known as separation or independence of judiciary case). The power to take offence into cognisance and to impose pecuniary liability is one of the judicial functions. This power has been given to the executive magistrates through an Ordinance of 2009 on the fake and murky pretext of maintaining law and order. This can be linked to an act of doctor where "a doctor's job being done by a barber". Within the jurisdiction of executive functionaries, the executive magistrates can seize, search, arrest, declare Section 144 and so on, as are necessary within the purview of law. Why are they given judicial responsibilities? It is an outright violation of Masder Hossain's judgment and does also negate the spirit of separation of power. Such a violation demonstrates a gross disrespect to the need for functional separation of power for the judiciary. It is a counter-move to frustrate the hope about ensuring better days for rule of law and justice.
Recently, the government has allowed 30% allowance in the compensation packages of the judicial officers in a manner that suggested to make the move appear like an act of charity or alms-giving. But the recommendations of the Judicial Service Pay Commission have been made a laughing stock in a situation where the this additional allowance for the members of the judiciary has caused a new headache for, and discontent among, the personnel belonging to the administrative cadre.
A Bench of High Court Division of the Supreme Court served suo moto directive upon the government to show cause about extra-judicial killings and stop the same. Notwithstanding this, several incidents of extra-judicial killings have been committed by the law-and-order-maintaining forces. There are a plethora of instances where the orders of the highest court are, thus, neglected and bypassed.
The prevailing system about appointment of judges in the highest court in Bangladesh is a retrogate chapter. It is not transparent and is highly politicised. This runs afoul of the need for nourishment of civilised norms of governance. We have to ensure an accountable process, freed from the tutelage of 'polluted' politics for appointment of judges without further delay. It worthwhile to note here that the appointment of newly established Judicial Service Commission, as the first meaningful step for upholding the principle of judicial independence was a positive step. This was commended by all concerned sections of people. Unfortunately, the government later decided to provide reserved quotas for the children of the freedom fighters for appointment of assistant judges. This move may entail politicisation and involve irregularities, creating the scope for appointment of under-qualified judicial officers. The whole process of quota system in all other existing areas has already become controversial for various reasons.
The changes in the warrant of precedence to entrust the district judges with proper and rationally expected positions have been a long-felt demand of the entire judiciary. Meeting this need can help accelerate the mobility and dynamics of lower judiciary. The present disposition of the district judge is not acceptable to many meritorious students of law because of deprivation of the judicial service personnel, in comparison with those in the admin cadres, even though the judicial officers have the same or additional quality and qualifications.
Ensuring the dignity of judiciary should be one of the priorities for promoting overall national development. This is the case all over the world, including those in our neighbouring countries. The civilised norms of modern state and its governance system do no longer put judiciary in any rival position. Any special allocation made for judiciary is considered an investment for judiciary that helps to multiply the positive feedback for the entire society.
We should not forget that the designated personages are appointed by Republic and they are nourished by the tax-payers money. So it is important to ensure that the concerned personnel are enabled to perform their assigned duties to the people with a motto of providing the expected services judiciously and efficiently. Any kind of malice and unfair competition among or between the organs of the government would ultimately hamper holistic welfare, hampering or jeopardising the interests of the common people. As Professor Pearce said, "[f]or the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly" ("Executive Versus Judiciary", (1991) 2 Public Law Review 179 at 193).
The psyche that fosters immoral and unfair envy towards judiciary and goes against independence of judiciary for ghetto interests, must be detested by all. All the stakeholders have to strongly plead for upholding the honour and dignity of the basic institution like judiciary so that it can work smoothly. Non-government organisations, (NGOs), academics and other civil society members should make efforts to make the citizens at large aware of the importance of judiciary for upholding rule of rule. This is a hard challenge in Bangladesh where it is rather wrongly assumed that "the concerned knows the law".
In the 21st century, it is a great shame for the nation that our executive organ does not properly appreciate the stand of judiciary and does always try to disparage it. This is high time to assert that judiciary is a noble organ of the government for protecting the common interest of all. Considering judiciary a rival organ and nurturing an orthodox mindset towards it are the most unsavoury aspects of our national life. Such attitudes must be changed. In this context, judicial activism of the Supreme Court should assume a critical role; this has been amply demonstrated by different highest courts of the world, even those in India.
The writer has a legal background and is presently, a visiting Scholar, School of Law, Dalian Maritime University, People's Republic of China. He can be reached at e-mail:kohinoorgazi@yahoo.com
JUDICIARY is an important and indispensable organ of a modern nation state. It is a rudder-like entity. It is the last and tested resort to uphold the Constitution, reflecting the aspirations of the people at large. But within the matrix of government's organs, the judiciary is apparently vulnerable, in terms of power and vitality in contrast with other two organs -- executive and legislature. Responding to Brutus in The Federalist No.78, Hamilton argued: "It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
This vulnerability of judiciary is appalling in the developing countries where there is a legacy of prolonged colonial rule, a bureaucracy with a demeaning or degenerated mindset, extreme poverty, corruption, fragile political parties aspiring after grasping power for the vested interests, and mass ignorance.
The sublime and august strength of judiciary is, however, embedded the confidence of the people on it, and their commitment to upholding rule of law, accountability or justice for all concerned. The popular and pragmatic adage says, "the degree of respect towards judiciary is a matchless standard to appraise the civility of a particular society or state."
Legally and morally, the state and government machineries are bound to abide by the orders of the court and to execute those. Regrettably, we observe various acts of drama and points of climax among those in the executive organ of the government to nullify the orders of the court or make them infructous. This kind of mindset of the executive and legislative organs does ultimately impairs the process, causing harms to the norms of justice, good governance and rule of law.
Judiciary is, thus, sought by many powerful quarters to set at naught. In the process, the executive organ, in collaboration with the legislature via some opaque arrangements, has been trying to marginalize the judicial organ.
Reflecting the need for promoting good governance and institutionalising rule of law on effective lines in Bangladesh in tune with the demand of the common people, the last caretaker government, despite its undemocratic character, took steps for separation of judiciary from executive. But there are no sustainable efforts now by the democratically elected government to ensure effective separation of power and for a real independent judiciary in the larger interests of the people. The executive organ is leaving no stone unturned to interfere in the technical roles of judiciary. Overt and covert efforts are being made by the people's elected government to make the working of an independent judiciary well-neigh impossible in Bangladesh.
The setting up of a separate and independent "Judicial Service Secretariat" has not yet taken place, though the highest judiciary of the country served an order for this purpose, in Masder Hussain's case (popularly known as separation or independence of judiciary case). The power to take offence into cognisance and to impose pecuniary liability is one of the judicial functions. This power has been given to the executive magistrates through an Ordinance of 2009 on the fake and murky pretext of maintaining law and order. This can be linked to an act of doctor where "a doctor's job being done by a barber". Within the jurisdiction of executive functionaries, the executive magistrates can seize, search, arrest, declare Section 144 and so on, as are necessary within the purview of law. Why are they given judicial responsibilities? It is an outright violation of Masder Hossain's judgment and does also negate the spirit of separation of power. Such a violation demonstrates a gross disrespect to the need for functional separation of power for the judiciary. It is a counter-move to frustrate the hope about ensuring better days for rule of law and justice.
Recently, the government has allowed 30% allowance in the compensation packages of the judicial officers in a manner that suggested to make the move appear like an act of charity or alms-giving. But the recommendations of the Judicial Service Pay Commission have been made a laughing stock in a situation where the this additional allowance for the members of the judiciary has caused a new headache for, and discontent among, the personnel belonging to the administrative cadre.
A Bench of High Court Division of the Supreme Court served suo moto directive upon the government to show cause about extra-judicial killings and stop the same. Notwithstanding this, several incidents of extra-judicial killings have been committed by the law-and-order-maintaining forces. There are a plethora of instances where the orders of the highest court are, thus, neglected and bypassed.
The prevailing system about appointment of judges in the highest court in Bangladesh is a retrogate chapter. It is not transparent and is highly politicised. This runs afoul of the need for nourishment of civilised norms of governance. We have to ensure an accountable process, freed from the tutelage of 'polluted' politics for appointment of judges without further delay. It worthwhile to note here that the appointment of newly established Judicial Service Commission, as the first meaningful step for upholding the principle of judicial independence was a positive step. This was commended by all concerned sections of people. Unfortunately, the government later decided to provide reserved quotas for the children of the freedom fighters for appointment of assistant judges. This move may entail politicisation and involve irregularities, creating the scope for appointment of under-qualified judicial officers. The whole process of quota system in all other existing areas has already become controversial for various reasons.
The changes in the warrant of precedence to entrust the district judges with proper and rationally expected positions have been a long-felt demand of the entire judiciary. Meeting this need can help accelerate the mobility and dynamics of lower judiciary. The present disposition of the district judge is not acceptable to many meritorious students of law because of deprivation of the judicial service personnel, in comparison with those in the admin cadres, even though the judicial officers have the same or additional quality and qualifications.
Ensuring the dignity of judiciary should be one of the priorities for promoting overall national development. This is the case all over the world, including those in our neighbouring countries. The civilised norms of modern state and its governance system do no longer put judiciary in any rival position. Any special allocation made for judiciary is considered an investment for judiciary that helps to multiply the positive feedback for the entire society.
We should not forget that the designated personages are appointed by Republic and they are nourished by the tax-payers money. So it is important to ensure that the concerned personnel are enabled to perform their assigned duties to the people with a motto of providing the expected services judiciously and efficiently. Any kind of malice and unfair competition among or between the organs of the government would ultimately hamper holistic welfare, hampering or jeopardising the interests of the common people. As Professor Pearce said, "[f]or the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly" ("Executive Versus Judiciary", (1991) 2 Public Law Review 179 at 193).
The psyche that fosters immoral and unfair envy towards judiciary and goes against independence of judiciary for ghetto interests, must be detested by all. All the stakeholders have to strongly plead for upholding the honour and dignity of the basic institution like judiciary so that it can work smoothly. Non-government organisations, (NGOs), academics and other civil society members should make efforts to make the citizens at large aware of the importance of judiciary for upholding rule of rule. This is a hard challenge in Bangladesh where it is rather wrongly assumed that "the concerned knows the law".
In the 21st century, it is a great shame for the nation that our executive organ does not properly appreciate the stand of judiciary and does always try to disparage it. This is high time to assert that judiciary is a noble organ of the government for protecting the common interest of all. Considering judiciary a rival organ and nurturing an orthodox mindset towards it are the most unsavoury aspects of our national life. Such attitudes must be changed. In this context, judicial activism of the Supreme Court should assume a critical role; this has been amply demonstrated by different highest courts of the world, even those in India.
The writer has a legal background and is presently, a visiting Scholar, School of Law, Dalian Maritime University, People's Republic of China. He can be reached at e-mail:kohinoorgazi@yahoo.com