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January 04, 2004

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Independence of judiciary: What next?

Barrister Tureen Afroz

Independence of judiciary is no doubt a cornerstone of democratic practice all over the world. In Bangladesh, demand for judicial independence in practice has been a much-debated issue among policy reformers, democratic philosophers and legal academics for a long time. Many a people have raised this issue at various national levels and demanded a positive change to ensure independence of judiciary at the earliest.

Article 35(3) of our Constitution guarantees a fundamental right to every criminally accused person in Bangladesh (whether citizen or not) to have a 'speedy and public trial' by not only an 'independent judiciary' but also an 'impartial judiciary'. The question then arises, whether the terms 'Impartiality' and 'Independence' have similar meaning. Can we substitute one for another?

The landmark decision of Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82 was determined on the issue of how far the Constitution of Bangladesh has actually secured the separation of judiciary from the executive organs of the State and whether the Parliament and the Executive have followed the Constitutional path. In essence, the case was decided on the issue of how far the independence of judiciary is guaranteed by our Constitution and whether the provisions of the Constitution have been followed in practice. The court identified 5 (five) conditions of judicial independence:

1. Security of tenure;
2. Security of salary;
3. Institutional independence of subordinate judiciary;
4. Judicial appointments by separate Judicial Service Commission; and
5. Administrative independence and financial autonomy of judiciary.

However, in delivering judgement, the court in Masdar Hossain case did also try to differentiate between the terms 'independence' and 'impartiality' and said obiter that they would subscribe to the view of the Supreme Court of Canada in Walter Valente v Her Majesty the Queen (1985) 2 RCS 673.

Walter Valente held that "the concepts of 'independence' and 'impartiality', although obviously related, are separate distinct values or requirements. 'Impartiality' refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. 'Independence' reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status or relationship to others particularly to the executive branch of government "

Judiciary at a glance
Let us look at our judiciary. The people at the bench are not alien. They are individuals whom we expect to practise impartiality in administering justice without being pressurised by any restriction, influence, inducement, threat or influence. We cannot appoint somebody as a judge today and expect that from tomorrow morning s/he would be impartial in her/his belief, thought, conscience and practice, unless s/he has learnt to value those virtues at some earlier stage of her/his life and profession.

The vast majority of our judges and judicial officers are appointed from either the members of legal profession with long professional standing or the law graduates by way of public service examination intake. Now let us find out how much integrity of character or independence of judgement is possessed and practised by an average member of our legal profession or an average law graduate of our country. Do they get any systematic training during their process of making to build up a state of mind or attitude whereby they become committed to uphold the moral and ethical values and thus, the rule of law? Or in other words, how much concern, if at all, are our legal professional bodies and the legal education system to produce a lawyer or a law graduate who would never fail to appreciate the ethics in law?

Unfortunately, the existing legal education institutes of our country do not teach its graduates the ethics or professional responsibility. There is no conceptual framework that to be a good lawyer a student needs to learn and develop good ethics and as such, there is no subject called legal ethics in the official curriculum of any of the law degree of our country.

One can always argue that the legal education institutes do not produce professionals but academics. If that is so, then the total responsibility shifts on the professional bodies (such as the Bangladesh Bar Council, Bar Associations, the Judicial Administration Training Institute etc.) to ensure that their members, before joining their respective profession, go through a proper system of training where they are carefully introduced to the issues of legal ethics and professional responsibility.

Training of the advocates
Under the current policy of the Bangladesh Bar Council, every person shall, before being admitted as an Advocate, pass a written examination, viva-voce and a vocational training course of approx. 7 weeks. The syllabus for the written examination for enrolment does include a topic, "Rules of Professional Etiquette" which is examined by assessing a candidate's knowledge on Bangladesh Bar Council Canons of Professional Conduct and Etiquette.

It is also worth mentioning that though the candidates answer a question on legal ethics in the written examination, there is no way to know whether they have written the right answer or not, once the result is published. Therefore, there is a danger that the candidates might fail to realise the importance of being professionally ethical, once they enter the profession.

Within a span of 7 weeks, the students of BVC have approximately 80-84 classes and unfortunately, only 3 classes (each with approx. one hour duration) are allocated to have a discussion on the topic of Professional Ethics. The discussion is of general type and there is no specific syllabus available for those sessions. It is very disappointing to note that this is the first time (and perhaps the only time) the newly entrant Advocates get a chance to have a discussion on the most sensitive issue of their profession and that does not get proper weightage in their training mechanism.

The necessary link is that every practising Advocate of today is a potential Judge of tomorrow. The increasing un-professionalism among today's lawyers is indeed a matter of great concern for all of us. Therefore, to secure impartiality at the bench, we need to maintain a pool of lawyers who are professionally and ethically duty-bound, who are responsible and accountable not only to their clients but also to the court, colleagues, members of the public and above all, to their own noble profession.

Training of the judges
Let us now turn to the training mechanism of the Judicial Officers of this country. With the advent of new ordinance, it is expected that there will be a new Judicial Service Commission, which would be responsible for the appointment of the Judicial Officers. Like before, most probably the minimum required qualification would be a law graduate. As I have already pointed out that the issues of professional ethics are not introduced in the law courses of this country, this has to be covered up during the training period of the newly appointed Assistant-Judges and other post-appointment professional training schemes.

As per Judicial Administration Training Institute Act 1995, the Government of Bangladesh has set up a Judicial Administration Training Institute (JATI) to arrange for training of persons appointed in the judicial service, lawyers and some other professionals connected with the judicial system in order to increase their professional efficiency.

Under its current training policy, the Judicial Administration Training Institute (JATI) runs a 60 Day Basic Course for newly appointed Assistant Judges, 21 Day Courses (and sometimes, 3 day short courses) for Senior Assistant Judges, Joint District Judges and District Judges. It is again unfortunate that the curriculum for the "Basic Course" does not have any module on ethics or professional responsibility. However, the curriculum for Judicial Administration Training Course for the District and Session Judges do have a module on "Judicial Ethics and Code of Conduct of Judicial Officers".

Nobody can deny that there is a need for the development of an ethical framework in our entire legal and judicial arena. For the long time benefit of the society, in general and the legal and judicial professions, in particular, there is no other alternative but raising the conscience of our legal and judicial professionals with regard to ethics, professional responsibility and accountability. 'Impartial Judiciary' is not a fancy dream but a constitutionally guaranteed fundamental right of every person of this country. Though, in reality, it is a long way to go, we can nevertheless initiate our journey by:

1. introducing subject like "Legal Ethics and Professional Responsibility" in various Law Degrees of Bangladesh because teaching law to students without a moral framework denies them the opportunity to develop healthy personalities (as adopted in all most all LL.B degrees of Australia);

2. giving more importance to the topic of 'ethics and professional responsibility' in the Bar Council Enrolment Examination (as adopted in the enrolment examination of legal practitioners of the Supreme Court of New South Wales) ;

3. arranging regular seminars and workshops on ethical issues by different Bar Associations; members of the Bar as well as the Bench can participate in those seminars (as arranged by the Bar of England and Wales);

4. making regular publications on popularising the ethical values among professionals;

5. giving more importance to the topic of 'ethics and professional responsibility' in the Judicial Service Examination;

6. giving utmost priority to the issues of ethics in the Judicial Training Schemes of the country.

Concluding remarks
We have to keep in mind that in an adversarial system, like that of ours, Judges are expected to play the role of an "impartial" umpire. Moreover, only an 'impartial judiciary' can guarantee a proper administration of justice to meet the ends of Article 35(3) of our Constitution.

By ensuring judicial independence from the executive organ of the government, we are, no doubt, in a position of installing a better democratic system in our society, but there still remains a grey area as to how efficient this system would work if the players and the operators of this system are not motivated enough to make it work. Therefore, if 'independence of judiciary' from the executive organ is the first step, let securing 'impartial judiciary' be the next one.

Barrister Tureen Afroz is an Advocate of the Supreme Court .









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