Loopholes in judicial magistracy
K.M.Mukta | Friday, 13 March 2009
CRIMINAL administration of justice is a great challenge all over the world. This is more so, specially in a developing country like Bangladesh for multi-dimensional causes like prolonged colonial legacy, judicial bureaucracy, complex procedural mechanism, lack of judicial activism, over-powerful politically biased bar, intellectual sterility in both the bar and the bench, age-old but outdated conventions, etc.
Right to justice is a constitutional and human right. After 37 years of independence, it is an irony of fate for Bengalis that justice is still a mirage to them. After a long struggle through a zigzag path for justice, we discovered separation of judiciary on November 01, 2007 where judicial magistracy is at a critical juncture. At this transition, some conflict is unavoidable among various inter-related entities.
In judicial magistracy, there is hardly any judicial activism. The 'antique' conventions devoid of logic and rationality are hyperactive. This leads to repression of any reformative approach of the young, brilliant and committed officers -- as if judicial magistracy was, is and would be a fertile ground for procedural complexities, lackadaisical approach and unhindered sway of superstitions and inertia. Injustice can, thus, be nourished in the process thereof.
The judicial magistracy has largely failed to attract the meritorious law graduates as the functional lines of magistracy. The preponderance of clerical work there tends to thwart the intellectual and inquisitive approach of university-educated young judicial magistrates. The judicial service commission through its first recruitment appointed 386 assistant judges/judicial magistrates. Of them, 76 officers have already left the service for multifarious causes like intellectual sterility in the bar, undiminished corruption, lack of judicial activism etc., that are prevailing in the lower judiciary.
The officers of the court having poor legal knowledge and a Shylock-type attitude appeared as the curse for the entire judiciary and justice seekers. Most lawyers do not have the basic level of legal education but they are champions of party politics which they use in their solemn relations with the bar and the bench. The so-called politically biased leaders of bar do often raise various embarrassing baseless issues against the honest, proactive and committed judicial officers when any decision goes against their interest. It is a matter of great regret that senior judicial officers in many cases play the facilitatory role in aid of such lawyers to 'fix' their own thrones. In such a situation, the individual judicial officer's sense of natural justice is forsaken. They forget that this propensity is jeopardizing the entire judiciary where the bench is captivated by the bar.
The junior officers do not have any independence in discharging their functional responsibilities as the senior officers always interfere in their work. In cases of bail and remand that are the key aspects of human rights, a magistrate can not exercise his/ her own judicial discretion. This is inconsistent with the spirit and philosophy of judge-ship. It is caused by mere egoism of hierarchical officers.
In judicial magistracy, the bar and the bench want to stay aloof from any positive change of wood-mite and outdated traditions. This impairs the process of justice. There is a gulf of difference in the psyches of senior and junior judicial officers. This results in suppressed despair among the junior officers. The junior officers are inclined to embrace reforms but are discouraged to do so by the orthodox senior officers. There is a little opportunity for exchange of views in areas of conflict pertaining to justice among junior and senior officers.
There is a triangular conflict among the district and sessions judge, the chief judicial magistrate and the additional chief judicial magistrate. The district and sessions' judge always tries to impose arbitrary decisions on the chief judicial magistrate who is head of judicial magistracy. The additional chief judicial magistrate, like the country's politicians backbites the chief judicial magistrate. This sort of anarchy and chaos among the highest judicial officers begets a lot of impediments to the entry-level judicial officers in administering justice.
Lack of independence within judiciary is a fundamental impediment to functioning of a free, independent and impartial lower judiciary. This runs afoul of the spirit of the constitutional provision under article 116A.
The mismanagement of judicial magistracy is neither expected nor desirable. There should be a comprehensive paradigm shift of the system via changing the mindset of all concerned in order to help to attract the meritorious individuals to lower judiciary. A working environment congenial to the functioning of a free, fair and independent judiciary at all levels should be ensured at any cost. There should be exchanges of views between the bar and the bench. The senior and junior officers should be sitting together every month to help minimise their gap and to promote delivery of qualitative justice. The senior officers should not take any arbitrary decision against any single officer without caring for natural justice for the tiny vested interests.
Judicial activism for justice, not being in fundamental conflict with laws and the spirit of the constitution should not be repressed. Individual efforts to come out of the domain of traditional groundless conventions, for ensuring humane justice should be properly evaluated and lauded. Finally, it should be noted that the constitutional article should not be interpreted subjectively. Rather, it should be upheld and nourished objectively for promoting sustainable judicial magistracy so that justice is ensured to all.
The writer is an advocate. He may be reached at e-mail: Kohinoorgazi@yahoo.com
Right to justice is a constitutional and human right. After 37 years of independence, it is an irony of fate for Bengalis that justice is still a mirage to them. After a long struggle through a zigzag path for justice, we discovered separation of judiciary on November 01, 2007 where judicial magistracy is at a critical juncture. At this transition, some conflict is unavoidable among various inter-related entities.
In judicial magistracy, there is hardly any judicial activism. The 'antique' conventions devoid of logic and rationality are hyperactive. This leads to repression of any reformative approach of the young, brilliant and committed officers -- as if judicial magistracy was, is and would be a fertile ground for procedural complexities, lackadaisical approach and unhindered sway of superstitions and inertia. Injustice can, thus, be nourished in the process thereof.
The judicial magistracy has largely failed to attract the meritorious law graduates as the functional lines of magistracy. The preponderance of clerical work there tends to thwart the intellectual and inquisitive approach of university-educated young judicial magistrates. The judicial service commission through its first recruitment appointed 386 assistant judges/judicial magistrates. Of them, 76 officers have already left the service for multifarious causes like intellectual sterility in the bar, undiminished corruption, lack of judicial activism etc., that are prevailing in the lower judiciary.
The officers of the court having poor legal knowledge and a Shylock-type attitude appeared as the curse for the entire judiciary and justice seekers. Most lawyers do not have the basic level of legal education but they are champions of party politics which they use in their solemn relations with the bar and the bench. The so-called politically biased leaders of bar do often raise various embarrassing baseless issues against the honest, proactive and committed judicial officers when any decision goes against their interest. It is a matter of great regret that senior judicial officers in many cases play the facilitatory role in aid of such lawyers to 'fix' their own thrones. In such a situation, the individual judicial officer's sense of natural justice is forsaken. They forget that this propensity is jeopardizing the entire judiciary where the bench is captivated by the bar.
The junior officers do not have any independence in discharging their functional responsibilities as the senior officers always interfere in their work. In cases of bail and remand that are the key aspects of human rights, a magistrate can not exercise his/ her own judicial discretion. This is inconsistent with the spirit and philosophy of judge-ship. It is caused by mere egoism of hierarchical officers.
In judicial magistracy, the bar and the bench want to stay aloof from any positive change of wood-mite and outdated traditions. This impairs the process of justice. There is a gulf of difference in the psyches of senior and junior judicial officers. This results in suppressed despair among the junior officers. The junior officers are inclined to embrace reforms but are discouraged to do so by the orthodox senior officers. There is a little opportunity for exchange of views in areas of conflict pertaining to justice among junior and senior officers.
There is a triangular conflict among the district and sessions judge, the chief judicial magistrate and the additional chief judicial magistrate. The district and sessions' judge always tries to impose arbitrary decisions on the chief judicial magistrate who is head of judicial magistracy. The additional chief judicial magistrate, like the country's politicians backbites the chief judicial magistrate. This sort of anarchy and chaos among the highest judicial officers begets a lot of impediments to the entry-level judicial officers in administering justice.
Lack of independence within judiciary is a fundamental impediment to functioning of a free, independent and impartial lower judiciary. This runs afoul of the spirit of the constitutional provision under article 116A.
The mismanagement of judicial magistracy is neither expected nor desirable. There should be a comprehensive paradigm shift of the system via changing the mindset of all concerned in order to help to attract the meritorious individuals to lower judiciary. A working environment congenial to the functioning of a free, fair and independent judiciary at all levels should be ensured at any cost. There should be exchanges of views between the bar and the bench. The senior and junior officers should be sitting together every month to help minimise their gap and to promote delivery of qualitative justice. The senior officers should not take any arbitrary decision against any single officer without caring for natural justice for the tiny vested interests.
Judicial activism for justice, not being in fundamental conflict with laws and the spirit of the constitution should not be repressed. Individual efforts to come out of the domain of traditional groundless conventions, for ensuring humane justice should be properly evaluated and lauded. Finally, it should be noted that the constitutional article should not be interpreted subjectively. Rather, it should be upheld and nourished objectively for promoting sustainable judicial magistracy so that justice is ensured to all.
The writer is an advocate. He may be reached at e-mail: Kohinoorgazi@yahoo.com