Law Alter Views
Independence or separation of judiciary?
A R Khandaker
A tug of war is going on between the government and the judiciary at present. The Supreme Court has ordered the government to take action to finalise the separation of the Executive from the Judiciary. When initially the Supreme Court issued the Rule, the government did not respond. The Rule was made absolute. Now perhaps the government is finding it difficult to implement it and is praying for more time again and again. The matter deserves a dispassionate and objective consideration before a final decision is taken and precedence is created. It seems pertinent to consider at least two issues.
Firstly the form of government has been spelled out in the constitution that it will be a Republic and have a parliamentary system of government having a constitutional president with power to pardon and a council of ministers headed by a prime minister and three distinct organs namely the Legislature, the Executive and the Judiciary. The constitution lays down specific functions of different organs of the government. The parliament is supreme and the lawmakers alone being the elected representative of the people can bring about any change by amending the constitution as and when necessary.
The Supreme Court has been authorised to interpret the provision of the constitution as and when required. Therefore the order of separation of the judiciary does not seem to be within the purview of the business to be dealt with by the Supreme Court. The powers and functions of, in other words, the jurisdiction of High Court Division as laid down in Articles 101 and 102 of the constitution of Bangladesh do not empower the Supreme Court to supersede the function of the National Assembly. The judiciary is very much a functionary of the government. The duty of the government is to govern, to administer, to provide security to lives, property, and honour of the citizens both internally and as well as from the external enemy. Judiciary helps the government to carry out one of the functions of the state and in doing so it should be able to function independently with no interference from any quarter or under any influence of fear or favour (116A of the constitution).
The justice system in Bangladesh has been a legacy of the justice system as introduced by the British during the colonial days. The justice system was divided into civil and criminal. All civil matters relating to property, marriage endowment etc were dealt under civil laws following the civil procedure code and criminal violation of personal rights were dealt under criminal justice system following the criminal procedure code. In the civil side the lowest court was that of the munsiff, with a hierarchy of sub-judges court/assistant judge's court, additional district judges and district judges court, High Court and in the apex, the Supreme Court.
In the criminal side magistrates with third, second and first class powers were appointed under the district magistrate and additional district magistrate to manage the criminal justice system. The district and the session judges were also linked with criminal justice system as appellate authority and after the withdrawal of committal proceedings, with original jurisdiction. As such the magistrates are under the judicial control of district judges. Besides, as mentioned above, Article 116A of the constitution provides that all persons employed in the judicial service and all magistrates shall be independent in exercise of their functions. The point to be noted here is that the law makers in all probability emphasised on independence of the courts and not separation. Without the assistance of the magistrates the criminal administration function of the district magistrate will become infractious and the criminal administration will be in a mess and the concept of the magistrates as administrative judges will melt away, possibly to the jeopardy of public interest.
Fulfilling the objective of the functioning of the state may not be possible by a water tight compartmentalisation of the judiciary and the executive as they are interdependent and their functions are complementary. The function of the executive, particularly of the police whose duty is to bring the offender to justice will slacken down without a helpful attitude of court. Likewise a court's order remain in paper if the executive does not sincerely carry it out. A sincere cooperation between the Codes, Constables and the Courts can only help realising the objective of administration of criminal justice. If every one is honest in his duty he has to believe in mutual cooperation and not isolation. No one's duty is trifling. Therefore, no one should have any complex and every one should maintain due decorum of his office. The goal of service to the society should get the utmost attention and in this context the Quranic injunctions may be adhered to (S. Nisa-A58 & S Maida-A8).
I see no problem between the judiciary and the executive. In his book 'Not the Whole Truth' Justice MR Kayani made many adverse and interesting remarks of the marshal law promulgated in 1958 by Field Marshall Ayub Khan and vehemently criticised many of the actions taken under it. The book was originally given the title 'The Whole Truth'. Mr Khan although had all the power to take any action but while writing the introduction for the book said, “I do not agree with some of his views but he has a right to express his opinion but would seek his permission to add one word 'Not' on his title reading as 'Not the Whole Truth.' In my forty years of service I hardly came across an occasion when the judiciary made complaint against the executive's interference in carrying out its proceedings. Such complaints are cropping up only during recent years. The judges are probably finding it difficult to brush them aside. This is not because of any fault in the system but because the system is not being allowed to function freely without undue interference.
The problem lies with the persons in authority who can be indiscreet towards the prospect of immediate personal gain and can be oblivious to the cause of ultimate justice and fair play. It is also unfortunate that the person sitting on the chair of a judge cannot also turn a deaf ear to the threat of unreal fear or temptation. The earlier it is realised by all concerned the better for the society.
In Japan they have an independent Public Prosecution Department which deals with all prosecution matters. Being a separate and independent organisation it can play a better role and works as buffer between the court and the administration. All the personnel in the Public Prosecution Department are law graduates and under the control of the Chief Public Prosecutor. Bangladesh government may perhaps give it a consideration.
The author is a retired IG of Police.