Whither our judiciary?
Sunday, 25 April 2010
Shamsher Chowdhury
Of all the cardinal institutions of a democratic state, the most important one is its judiciary. No free judiciary, no democracy. In this country there has never been a judiciary that is free and independent. From lawyers up to the judges have, in public perception, been guilty of questionable moral and ethical standards. Just like any other branch of the administration, judiciary too has been partisan. Judges by their mannerisms and actions have made them more important than justice. Since we gained independence, all governments, without exception, have blatantly interfered with smooth functioning of the judiciary. It is disquieting to see that justice in this country is dispensed on a selective basis. While the mighty and the powerful have ready access to it, the poor and the common man continue to cry for justice for injustices and crimes committed against them.
On the other hand, there is clearly every reason to believe that the administration intimidates, coerces and manipulates the judiciary in all conceivable ways creating stumbling blocks to smooth passage and functioning of the judiciary. Judiciary is now full of political pollution.
The recent refusal of the Chief Justice to administer oath to two persons selected as additional judges of the High Court has again brought into focus the issue of political influence. There is already in existence a 12-point guideline which, though not totally foolproof, does lays down the specific manner in which judges are to be selected and nominated with emphasis on transparency and clarity of nomination. The guideline calls for involving the Attorney General, the Chief justice, the President of the Supreme Court Bar Association including two senior judges each from the High Court and the Appellate Division in the selection process of the judges of the higher courts. My question is: Was this process strictly adhered to in the case of nominating the two controversial persons?
Judiciary is central to the dignity and honour of a state. Actions and deliberations of judiciary and the judges have wide-ranging ramifications in every sphere of the government's functioning and the society at large. It is therefore imperative that the judges selected and appointed to the High Court Benches are not only adequately qualified but are of impeccable character and high commitment. They must be people with extraordinary courage, honesty and integrity. People who aspire to be judges just because the position carries a flair and authority, normally not attributed to other positions of authority or professional calling, need not be taken into consideration.
I am not a legal expert but I can tell you that the actions of judges are closely linked to social and ethical content of an entire nation including its "mental health". Their actions have long-term ramifications, for good or bad, on the life of the people belonging to all sections of the society. Therefore any undue interference in the working of the judiciary and the judges can be disastrous.
I understand from the media reports that laws and regulations currently in existence are being further revised and firmed up for selection and appointment of judges to the High Court and Supreme Court Benches. But what bothers me most is that the operation and working of the lower courts too are far from independent and satisfactory and likely to influence the thinking of judges of the higher courts. While the government is embarking on streamlining this business of the selection and appointment of judges of the higher courts, it should also simultaneously cleanse the operations of the lower courts, making it transparent.
There is this other factor we need to understand that public power is a people's trust and so is also judicial power. While executive power is accountable to the parliament and through the Parliament to the people, judicial power is not accountable to either of them directly. Nonetheless, in a democratic country, the judiciary should be answerable to the people. Therefore, the selection of judges and their performances are directly linked to each other. Thus, appointment of judges should be screened by the collective wisdom of a panel of people with versatile experience, otherwise, distorted selections, leading not to the right choices, may take place. Winston Churchill decades back told the British parliament that judges are required to conform to standards of "life and conduct far more severe and restricted than that of the ordinary people"
In view of what I have illustrated in the forgoing about selection of judges and the moral and ethical content they should relate to, it is my feeling that we have not been able deal with this aspect of our judiciary the "right way." I sincerely hope that from here onwards we strictly refrain from indulging in questionable practices in this regard. We simply must have a judiciary that is not only free and fair but also have a commitment to a compassionate culture which spans from Budha to Muhammad (SM).
The writer can be reached
at e-mail:
chowdhury.shamsher@yahoo.com
Of all the cardinal institutions of a democratic state, the most important one is its judiciary. No free judiciary, no democracy. In this country there has never been a judiciary that is free and independent. From lawyers up to the judges have, in public perception, been guilty of questionable moral and ethical standards. Just like any other branch of the administration, judiciary too has been partisan. Judges by their mannerisms and actions have made them more important than justice. Since we gained independence, all governments, without exception, have blatantly interfered with smooth functioning of the judiciary. It is disquieting to see that justice in this country is dispensed on a selective basis. While the mighty and the powerful have ready access to it, the poor and the common man continue to cry for justice for injustices and crimes committed against them.
On the other hand, there is clearly every reason to believe that the administration intimidates, coerces and manipulates the judiciary in all conceivable ways creating stumbling blocks to smooth passage and functioning of the judiciary. Judiciary is now full of political pollution.
The recent refusal of the Chief Justice to administer oath to two persons selected as additional judges of the High Court has again brought into focus the issue of political influence. There is already in existence a 12-point guideline which, though not totally foolproof, does lays down the specific manner in which judges are to be selected and nominated with emphasis on transparency and clarity of nomination. The guideline calls for involving the Attorney General, the Chief justice, the President of the Supreme Court Bar Association including two senior judges each from the High Court and the Appellate Division in the selection process of the judges of the higher courts. My question is: Was this process strictly adhered to in the case of nominating the two controversial persons?
Judiciary is central to the dignity and honour of a state. Actions and deliberations of judiciary and the judges have wide-ranging ramifications in every sphere of the government's functioning and the society at large. It is therefore imperative that the judges selected and appointed to the High Court Benches are not only adequately qualified but are of impeccable character and high commitment. They must be people with extraordinary courage, honesty and integrity. People who aspire to be judges just because the position carries a flair and authority, normally not attributed to other positions of authority or professional calling, need not be taken into consideration.
I am not a legal expert but I can tell you that the actions of judges are closely linked to social and ethical content of an entire nation including its "mental health". Their actions have long-term ramifications, for good or bad, on the life of the people belonging to all sections of the society. Therefore any undue interference in the working of the judiciary and the judges can be disastrous.
I understand from the media reports that laws and regulations currently in existence are being further revised and firmed up for selection and appointment of judges to the High Court and Supreme Court Benches. But what bothers me most is that the operation and working of the lower courts too are far from independent and satisfactory and likely to influence the thinking of judges of the higher courts. While the government is embarking on streamlining this business of the selection and appointment of judges of the higher courts, it should also simultaneously cleanse the operations of the lower courts, making it transparent.
There is this other factor we need to understand that public power is a people's trust and so is also judicial power. While executive power is accountable to the parliament and through the Parliament to the people, judicial power is not accountable to either of them directly. Nonetheless, in a democratic country, the judiciary should be answerable to the people. Therefore, the selection of judges and their performances are directly linked to each other. Thus, appointment of judges should be screened by the collective wisdom of a panel of people with versatile experience, otherwise, distorted selections, leading not to the right choices, may take place. Winston Churchill decades back told the British parliament that judges are required to conform to standards of "life and conduct far more severe and restricted than that of the ordinary people"
In view of what I have illustrated in the forgoing about selection of judges and the moral and ethical content they should relate to, it is my feeling that we have not been able deal with this aspect of our judiciary the "right way." I sincerely hope that from here onwards we strictly refrain from indulging in questionable practices in this regard. We simply must have a judiciary that is not only free and fair but also have a commitment to a compassionate culture which spans from Budha to Muhammad (SM).
The writer can be reached
at e-mail:
chowdhury.shamsher@yahoo.com