Dhaka Thursday February 25, 2010

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Independence of the Higher Judiciary

Asif Nazrul

Sk. Enamul Haq

The higher judiciary of Bangladesh that comprises the Appellate and High Court Divisions hears appeals from orders, decrees and judgments of subordinate courts and tribunals, disposes of allegation of human rights violation and enjoys the power of superintendence and control over all courts and tribunals subordinate to it. Like many other comparable institutions of developing democracies, it often confronts with an additional challenge of strengthening constitutional order that often are threatened by lack of democracy, autocracy of the executive organ and disregard to or derogation from constitutional norms. In doing so, it is authorized to take measures to enforce the organs and agencies of the government to act within the rules and principles of constitution.

The higher judiciary could not perform its solemn duties unless its independence is guaranteed and protected. As underlined in the UN document of Basic Principles on the Independence of the Judiciary and in a number of authoritative instruments of global or regional relevance (such as the Beijing Statement of Principles of the Independence of the Judiciary, the Universal Charter of the Judge, and The Latimer House Guidelines), the “formal requirements” of independence of the Judiciary, be it Higher or lower, include constitutional endorsement of its financial, functional and institutional independence, safeguards against partisan and improper judicial appointments, security of the Judges' tenure, their adequate remuneration and suitable conditions of service and prohibition against post-retirement recruitment. For checking improper use of independence, judges must also conduct themselves according to ethical guidelines and should be held responsible for their failure to comply with those guidelines.

Many of the above formal factors of independence of Higher Judiciary are adequately reflected in the constitution of Bangladesh and little or no deviation from them has so far been experienced in practice. For example: the status of the Higher Judiciary and its financial independence has always been respected in all the regimes after the restoration of democracy in Bangladesh in 1991. The job of the higher judiciary judges are secured here, they are immune from “punishment transfer” because of the unitary structure of the Higher Judiciary and their termination could in no way be dictated by the executive. They are not accountable to anyone except to a body comprising the most senior three judges and there is almost no scope for breaking seniority, rewarding with promotion or making any variation in salary or amenities once they are confirmed as a high court judge.

A careful observation would however reveal that it is particularly the postcreation, appointment and confirmation in Higher Judiciary where the law and practice in Bangladesh are weak and inadequate in ensuring independence there.

First: whereas In India and Pakistan, the decision to increase number of judges in the Higher Judiciary is a matter of parliamentary scrutiny and informed debate, in Bangladesh in the name of President it is the Law Ministry which decides whether and if so how many new judges would be recruited. The executive control over the whole process is exercised in order partly to outnumber the judges appointed by the previous government. For example: the previous BNP-led Alliance government in their 5 years term had appointed 45 judges which were more than the number of existing judges at the time of their assumption in power in 2001. Likewise, although 17 new judges were appointed or reappointed during the first year of the present Awami League regime, they have already announced a decision of appointing 50 new judges soon.

Mike And Carol Werner/ Getty Images

Second: In the absence of constitutional obligation of the president to consult with the Chief Justice in appointing other judges of the Supreme Court, “conventional” consultation is limited to the list of candidates chosen by the executives. In there as well, the Law ministry by providing the “secretarial” service controls the information needed for considering the suitability of particular persons for judicial appointment. In comparison, Article 124 of the Constitution of India categorically asks the President to engage in prior consultation with the Chief Justice of India in making appointments in the higher judiciary. The second judge's case judgment of 1994 ruled that the CJI must take into account the views of the two senior most judges of the Supreme Court to ensure that the opinion is not merely his own individual opinion but is in fact the collective opinion of a body of men at the apex level in the judiciary. Likewise, as interpreted in constitutional petition no 08 and 09, the Pakistan Constitution requires consultation with chief justice for appointments in the Supreme Court and High Court.

Third: Bangladesh Constitution has omitted to specify the qualifications needed for appointment of judges. Article 95 only mentions the “disqualifications” i.e. nobody would be considered for appointment unless s/he is a citizen and an advocate of the Supreme Court or judges in the subordinate court for at least ten years. It however authorizes the Parliament to enact law for specifying qualifications. which has yet not been done ostensibly to protect the scopes of political manipulation in judicial appointments.

Fourth: There is no legal obligation for i) confirming services of judges after their two years experiences as additional judge or ii) elevating senior most judges to the Appellate Division or iii) appointing the most senior judge as the Chief Justice. The conventions in latter two areas can not be said to be firmly established to ensure that political expediency does not dominate.

As a result, politically advantageous appointments have increased over the last regimes. For example: among the 45 judges recruited by BNP led alliance, more than one-third was allegedly affiliated with the ruling alliance. Similarly, at least one-third of present AL government's new appointees were involved in Awami League politics. Politically gainful appointment is also evident in growing disregard to inadequacy in quality and experience of the candidates and also in preferring loyal Advocates than to the qualified district judges in the appointments in the Supreme Court. Other impediments to independence of Higher Judiciary include the scopes of post-retirement appointment of judges. Such an opportunity may inspire a judge to lean towards the government in expectation of getting appointment in various lucrative judicial and quasi-judicial offices after his retirement.

Appointment of a good number of partisan and less competent judges in the SC has had an adverse effect on the quality of administration of justice and on its independence, as those judges are often more succumbing to political influence and corruption. Such impact of improper appointment in last ten odd years could be discerned from occasional decline in administration of justice. Although Higher Judiciary is still respected and honored by people, there are growing allegation of unfair practice in disposing of bail petition, delay in disposing of cases, politically bias decisions and erosion in supervising subordinate judiciary etc.

Many of the above loopholes in independence of Higher judiciary could have been neutralised by an efficient system of monitoring the performances of the Judges. Bangladesh constitution has established a Supreme Judicial Council in order to ensure accountability of judges by prescribing code of conducts and investigating their incapacity or misconduct. In practice the Council has hardly taken any pro-active role in monitoring the extent to which the Judges are adhering to the code of conduct. It has also failed to examine some allegations of incapacity and misconduct against a number of Supreme Court Judges. The Supreme Court had also failed to make, under Article 107 of the Constitution, rules for systematic inspection, monitoring and enquiry regarding the conduct and practice of its judges or to enforce pro-active disclosure of their wealth and assets, although this is mandatory for subordinate judges.

The above findings clearly suggest that reform measures are absolutely vital for strengthening independence of the Higher Judiciary. For this, increase in number of judges should be decided by Parliament, consultation with the Chief Justice or a collegium of Senior Judges in appointments in the Supreme Court should be made mandatory and the opinion of the Chief Justice or the aforesaid collegium should enjoy primacy in those appointments.

Erik Snyder/ Getty Images

In addition, the Parliament must, under the mandate given by Article 95(2) (c) immediately elaborate qualifications for appointment in the higher judiciary. For example: in regard to 10 years experience in the High Court, the Act should ask for ancillary requirements: the person considered for appointment must pay subscription regularly for ten years, must have experience of conducting at least 2 cases alone or with seniors every year in his first five years as advocate and alone in the next five years. Other conditions for appointment may include mandatory disclosure of his engagement in any other profession during the ten years of enrollment as Advocate, non-affiliation with any political party, acceptable educational qualifications, asset and wealth disclosure etc.

In order to making the appointment process more competitive, in the light of Article 44(2) of the constitution, writ jurisdiction of Hebius Corpus and the powers under Article 102(1) should be conferred to the District Courts at the divisional headquarters and provision should be made for eligibility of lawyers practicing there in appointments in the High Court.

The accountability of the Judges should be enhanced by modifying existing code of conduct and formulating rules for systematic monitoring of the compliance with those rules, enhancing public access to information in the light of recently passed Right to Information Act and enhancing the mandate of the Supreme Judicial Council to initiate suo moto enquiry into conduct and capacity of judges.

Among other measures, Article 99 of the original constitution should be revived to impose total ban on all types of post-retirement appointment in the service of the republic, The Office of the register should be strengthened to act as a full-fledged secretariat in order, among others, to provide the secretarial service for the appointments in the Higher Judiciary, the salary and remuneration of the Judges should be increased to attract more competent Advocates to this service and training of the additional Judges of the Higher Judiciary should be arranged.

At the end, it should be pointed out that Independence of Judiciary is a constant struggle for many part of the world. In the sub-continent, counties even like India which has stronger and longer democracy are still learning from its inadequacies in ensuring judicial independence. Bangladesh lacks more in legal framework as well as in practice in establishing such independence. Although a number of measures are taken following the famous Masdar Hossain case to beef up the independence of the lower judiciary, little, if not nothing, has so far been done in regard to Higher Judiciary. Given the supervisory role of the Higher Judiciary on the lower tiers and also on state functionaries, it is essential to strengthen the effective independence and efficiency of the Higher Judiciary.

The author is a Professor of Law, Dhaka University

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