Protect the process to separate judiciary
Wednesday, 31 December 2008
K. M. Mukta
IN the evolutionary and zigzag history of human civilization, we do not discover or invent any alternative platform other than the judiciary to protect and preserve life and property of the people. In this context, separation and independence of judiciary is a sine qua non for addressing people's grievances from all strata of society.
The people of this part of the world invested a lot since time immemorial to quench their thirst for justice as their legitimate expectations and rights got frustrated from multifaceted vested interests of colonialism, its legacy as degenerated psyche, in complicated bureaucracy, governance, political will and neo-colonial agents.
But Bengali as a nation is icon of knight, painstaking, rebellious, struggle-prone to materialize the dream of justice. Separation of judiciary is an integral part of that endeavour. But it is an irony of Bengali nationhood that it cannot reap or retain the fruit of successes as sustainable. As for instance, achieved through a sea of blood, the flavour of independence is still a dream for the hapless commonalty.
In the same chronology, on November 01, 2007; we attained partial separation of judiciary though the whole nation is to welcome fully-fledged separation and independence of judiciary for upholding constitution, human rights, good governance and other aspects of modern welfare state.
Though it is not time to evaluate the far-reaching implications of the separation of the judiciary, meanwhile all of us visualize the rudimentary positive change in terms of speedy disposal of justice, eradication of corruption, establishment of transparency and accountability. After the separation of the judiciary, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.
Even this partial separation of judiciary has already germinated win-win pragmatic milieu for all the stakeholders but this ameliorated race of nation has begotten vested groups as their all pervasive hypocrisy and voracity do not know any limit at the cost of the collective interest. They want to gain absolute power for absolute corruption. They are frightened about decentralization of power.
This colonial degenerated psyche to maximize the individual interest is explicitly reflected in the recent the Judicial Service Secretariat Ordinance, 2008 which the council of advisers to the caretaker government gave the final approval on 14-12-08, which is now waiting to be promulgated by the president.
Grandiloquence, chicanery ,coquetry and uncalled-for meddling in the law ministry in the name of Judicial Service Secretariat for the separation of the judiciary and so on are the salient features of the ordinance.
The judicial service secretariat headed by the chief justice must go through the law ministry to contact the president and the prime minister regarding any matter related to the functioning of the secretariat (Section 4(2) of the Ordinance). If it is so, the pertinent question arises as to why this weighty Secretariat would be nourished by the taxes of citizens?
This Ordinance has built a castle in the air in respect of independence of judiciary in terms of the suspension, dismissal, removal, posting, promotion, leave, control, and discipline as the Articles 48(3) and 116 provided the aforesaid functions must be executed by the President in consultation with the Prime Minister which is but anchoring judiciary with Executive organ.
Among the 15 functions of the Secretariat, all the most indispensable functionaries for the protection and preservation of independence of judiciary shall be done via law ministry as broker led by anti-Judiciary hyena. This is simply a heinous conspiracy to show illegal and unethical power of tyrant bureaucrat to destroy the separation and independence of judiciary.
There is colossal negation of autonomy of the Secretariat though the Ordinance tantalizes some mere bounty to the Supreme Court in respect of arranging peon, chaprashi, sweeper, pin, books-khatas, slate-pencil, etc.
The accountability of the secretary of the secretariat is devolved on the Chief Justice where his persona is focused rather on the Supreme Court as institution with collective entity and this might be a part of the plot to obstruct its smooth functioning in the future.
It connotes that the chief justice will not be allowed to communicate directly with the president or the prime minister regarding the secretariat's functioning. The new ordinance puts the law ministry in the way of the High Court's exercise of that power. This is has become clear to all why such prerogative has been deliberately given to the law ministry?
This ordinance is against the spirit of the judiciary's separation from the executive branch of government.
Some of its provisions run counter to relevant articles in the country's constitution. As article 116 of the constitution provides, the control including the power of posting, promotion and granting of leaves, of disciplining persons employed in the judicial service and the magistrates exercising judicial functions shall be vested in the president and shall be exercised by him in consultation with the Supreme Court and article 109. That means the High Court shall have superintendence and control over all courts and tribunals subordinate to it.
The executive or law ministry's mala fide interference as it frequently proved might hamper the new judicial secretariat's spontaneous functioning. The very organogram of secretariat would simply obstruct judicial proceedings.
High Court or Full court is absent from the total modus operandi of Secretariat. It bypassed section 7(b) of High Court Rules pertaining to GA Committee as a traditional effective body composed of Chief Justice and others three Judges to deal with Promotion and transfer.
In the Ordinance, there is no iota of reference of "appropriate authority" as frequently enshrined in the Rules, 2007 where it is stated that Law Ministry would propose in case of 15 functionaries of the secretariat to the Supreme Court and its recommendation would get priority. Above all, this ordinance is inconsistent with the Constitution and violation of the 12 points of Masdar Hossain's case in letter and spirit.
In a nutshell, from the aforesaid anatomy of the proposed Judicial Service Secretariat Ordinance, 2008, it could be axiomatically inferred that it would stymie the separation of judiciary through the dominance of the hawkish executive.
After 37 years of independence, it is a matter of great regret that the policymakers imbibed with nothing but selfishness fails to understand the welfare of the country.
As a citizen of the country, our legitimate expectation is that the government shall ensure separation and independence of judiciary despite the plot from any corner to obstruct the process directly or indirectly. Otherwise it would create a lot of anarchy as already echoed from the emergency meeting on 20-12-08 of Bangladesh Judicial Service Association, a platform of around 1,200 judicial officials across the country. They demanded that the Ordinance be scrapped. BJSA has vehemently condemned those who are trying to thwart separation of judiciary along with their legal demands and their declaration of abstaining from work, wearing black badges and encirclement of the president's office to press home their demands.
Judiciary is a resort of confidence, reverence and respect to society at large. All of us should invest efforts to protect and preserve its sanctity and dignity. We believe that there would be little wisdom in anti-people policy to keep bureaucracy to hold the apex matrix of judiciary and they should not compel it to come out on the road with its back to the wall.
The field level scenario represents that the country and countrymen do not want to see any conflict between the executive and judiciary. They are fully prepared to challenge any impediments in path of separation of judiciary.
It is a legal, ethical and civic duty for all including voracious, greedy and profligate bureaucrats to cooperate with judicial organ for separation of judiciary in to as recommended in Masdar Hossain's case without any covert or overt exception of it.
Administrative cadres and bureaucracy should come forward with open mind to realize the dream of separating the Judiciary. They have to visualize and envisage that separation of judiciary is a division of labour between and among public servants to serve the country.
Last but not least, the proposed Ordinance for secretariat would create obstacle and hurdle in the way of separation and independence of judiciary.
Pressure groups like NGO, media and civil society can play a pivotal role in this regard through proactive advocacy. It would be prudent and judicious to scrap the said Ordinance and redraft it avoiding any link with any ministry.
It is hoped that those concerned would take proper resolution in this regard without delay to avoid probable conflict among the different organs of the state.
The writer is advocate, researcher and analyst on Law and Judiciary in Bangladesh. He can be reached at E-mail: Kohinoorgazi@yahoo.com
IN the evolutionary and zigzag history of human civilization, we do not discover or invent any alternative platform other than the judiciary to protect and preserve life and property of the people. In this context, separation and independence of judiciary is a sine qua non for addressing people's grievances from all strata of society.
The people of this part of the world invested a lot since time immemorial to quench their thirst for justice as their legitimate expectations and rights got frustrated from multifaceted vested interests of colonialism, its legacy as degenerated psyche, in complicated bureaucracy, governance, political will and neo-colonial agents.
But Bengali as a nation is icon of knight, painstaking, rebellious, struggle-prone to materialize the dream of justice. Separation of judiciary is an integral part of that endeavour. But it is an irony of Bengali nationhood that it cannot reap or retain the fruit of successes as sustainable. As for instance, achieved through a sea of blood, the flavour of independence is still a dream for the hapless commonalty.
In the same chronology, on November 01, 2007; we attained partial separation of judiciary though the whole nation is to welcome fully-fledged separation and independence of judiciary for upholding constitution, human rights, good governance and other aspects of modern welfare state.
Though it is not time to evaluate the far-reaching implications of the separation of the judiciary, meanwhile all of us visualize the rudimentary positive change in terms of speedy disposal of justice, eradication of corruption, establishment of transparency and accountability. After the separation of the judiciary, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.
Even this partial separation of judiciary has already germinated win-win pragmatic milieu for all the stakeholders but this ameliorated race of nation has begotten vested groups as their all pervasive hypocrisy and voracity do not know any limit at the cost of the collective interest. They want to gain absolute power for absolute corruption. They are frightened about decentralization of power.
This colonial degenerated psyche to maximize the individual interest is explicitly reflected in the recent the Judicial Service Secretariat Ordinance, 2008 which the council of advisers to the caretaker government gave the final approval on 14-12-08, which is now waiting to be promulgated by the president.
Grandiloquence, chicanery ,coquetry and uncalled-for meddling in the law ministry in the name of Judicial Service Secretariat for the separation of the judiciary and so on are the salient features of the ordinance.
The judicial service secretariat headed by the chief justice must go through the law ministry to contact the president and the prime minister regarding any matter related to the functioning of the secretariat (Section 4(2) of the Ordinance). If it is so, the pertinent question arises as to why this weighty Secretariat would be nourished by the taxes of citizens?
This Ordinance has built a castle in the air in respect of independence of judiciary in terms of the suspension, dismissal, removal, posting, promotion, leave, control, and discipline as the Articles 48(3) and 116 provided the aforesaid functions must be executed by the President in consultation with the Prime Minister which is but anchoring judiciary with Executive organ.
Among the 15 functions of the Secretariat, all the most indispensable functionaries for the protection and preservation of independence of judiciary shall be done via law ministry as broker led by anti-Judiciary hyena. This is simply a heinous conspiracy to show illegal and unethical power of tyrant bureaucrat to destroy the separation and independence of judiciary.
There is colossal negation of autonomy of the Secretariat though the Ordinance tantalizes some mere bounty to the Supreme Court in respect of arranging peon, chaprashi, sweeper, pin, books-khatas, slate-pencil, etc.
The accountability of the secretary of the secretariat is devolved on the Chief Justice where his persona is focused rather on the Supreme Court as institution with collective entity and this might be a part of the plot to obstruct its smooth functioning in the future.
It connotes that the chief justice will not be allowed to communicate directly with the president or the prime minister regarding the secretariat's functioning. The new ordinance puts the law ministry in the way of the High Court's exercise of that power. This is has become clear to all why such prerogative has been deliberately given to the law ministry?
This ordinance is against the spirit of the judiciary's separation from the executive branch of government.
Some of its provisions run counter to relevant articles in the country's constitution. As article 116 of the constitution provides, the control including the power of posting, promotion and granting of leaves, of disciplining persons employed in the judicial service and the magistrates exercising judicial functions shall be vested in the president and shall be exercised by him in consultation with the Supreme Court and article 109. That means the High Court shall have superintendence and control over all courts and tribunals subordinate to it.
The executive or law ministry's mala fide interference as it frequently proved might hamper the new judicial secretariat's spontaneous functioning. The very organogram of secretariat would simply obstruct judicial proceedings.
High Court or Full court is absent from the total modus operandi of Secretariat. It bypassed section 7(b) of High Court Rules pertaining to GA Committee as a traditional effective body composed of Chief Justice and others three Judges to deal with Promotion and transfer.
In the Ordinance, there is no iota of reference of "appropriate authority" as frequently enshrined in the Rules, 2007 where it is stated that Law Ministry would propose in case of 15 functionaries of the secretariat to the Supreme Court and its recommendation would get priority. Above all, this ordinance is inconsistent with the Constitution and violation of the 12 points of Masdar Hossain's case in letter and spirit.
In a nutshell, from the aforesaid anatomy of the proposed Judicial Service Secretariat Ordinance, 2008, it could be axiomatically inferred that it would stymie the separation of judiciary through the dominance of the hawkish executive.
After 37 years of independence, it is a matter of great regret that the policymakers imbibed with nothing but selfishness fails to understand the welfare of the country.
As a citizen of the country, our legitimate expectation is that the government shall ensure separation and independence of judiciary despite the plot from any corner to obstruct the process directly or indirectly. Otherwise it would create a lot of anarchy as already echoed from the emergency meeting on 20-12-08 of Bangladesh Judicial Service Association, a platform of around 1,200 judicial officials across the country. They demanded that the Ordinance be scrapped. BJSA has vehemently condemned those who are trying to thwart separation of judiciary along with their legal demands and their declaration of abstaining from work, wearing black badges and encirclement of the president's office to press home their demands.
Judiciary is a resort of confidence, reverence and respect to society at large. All of us should invest efforts to protect and preserve its sanctity and dignity. We believe that there would be little wisdom in anti-people policy to keep bureaucracy to hold the apex matrix of judiciary and they should not compel it to come out on the road with its back to the wall.
The field level scenario represents that the country and countrymen do not want to see any conflict between the executive and judiciary. They are fully prepared to challenge any impediments in path of separation of judiciary.
It is a legal, ethical and civic duty for all including voracious, greedy and profligate bureaucrats to cooperate with judicial organ for separation of judiciary in to as recommended in Masdar Hossain's case without any covert or overt exception of it.
Administrative cadres and bureaucracy should come forward with open mind to realize the dream of separating the Judiciary. They have to visualize and envisage that separation of judiciary is a division of labour between and among public servants to serve the country.
Last but not least, the proposed Ordinance for secretariat would create obstacle and hurdle in the way of separation and independence of judiciary.
Pressure groups like NGO, media and civil society can play a pivotal role in this regard through proactive advocacy. It would be prudent and judicious to scrap the said Ordinance and redraft it avoiding any link with any ministry.
It is hoped that those concerned would take proper resolution in this regard without delay to avoid probable conflict among the different organs of the state.
The writer is advocate, researcher and analyst on Law and Judiciary in Bangladesh. He can be reached at E-mail: Kohinoorgazi@yahoo.com