New aspects of the debate: An English daily has published a news that adds a new dimension to the on-going debate (The Daily Star, July 15, 2004). In an unprecedented move, the Supreme Court Bar Association (SCBA) is reported to have called upon the chief justice (CJ) to appoint efficient judges to the High Court (HC) or stop appointing judges if competent people are not available.

It is understood that SCBA has submitted a memorandum to the CJ asking him to take necessary steps and copies of the memorandum would also be sent to other judges of the Supreme Court (SC). It is said that the practising lawyers of the highest tier of the judiciary pointed an accusing finger at some of the judges of the criminal motion benches for less than desirable performance. The president of SCBA made a public statement that the rate of disposal of cases was low. He also reportedly made a stronger statement that "Only the inefficiency of the judges is the reason behind this". In the new aspect of the debate, some judges appear to have been made part of the inefficient criminal justice system.

Perception of a Greek philosopher: It is said that about four thousand years ago, a Greek philosopher commented that, "Ignorance of judges is calamitous for the civil population". The president of SCBA, of course, did not refer to the aforesaid comment of the Greek philosopher. However, that unusual delays in the disposal of criminal cases do affect the citizens is an article of faith with many, including judges. For last three decades or more, some of our CJs and their colleagues had affirmed that justice delayed is justice denied. The president of SCBA had categorically referred to inefficiency of some judges. His assertion that the CJ should find more competent people for elevation to the judgeship or keep the posts vacant appears to indicate deep frustration that most of the practicing lawyers have. What about the aggrieved citizens? Has anybody assessed that?

Rationale of the unprecedented move: The rationale of the unprecedented move by SCBA, as it appeared in the press, remains an area of major concern. The primary rationale appears to be absence of independence of the CJ in matters relating to constitution and dissolution of benches. It has been alleged that the decision-making process is believed to be influenced by extraneous sources. Dr. Kamal Hossain, an eminent jurist, is reported to have said: "The chief justice must be told of our grave concern, that people are being deprived of the shelter of the law". If this concern is valid, it forebodes disaster for the aggrieved citizens seeking relief at the highest altar of justice. Indeed, in such an event, this will only confirm what the Greek philosopher had said four thousand years ago.

CJ has difficulties: The element of grave concern has also been articulated by other lawyers of high repute, besides Dr. Kamal Hossain. President of SCBA's reactions to the press indicate that the lawyers have requested the CJ constitute benches with senior judges. The CJ to is reported to have said that he has problems with that (The Daily Star, July 15, 2004). An even more damaging statement has been reported in the press that tends to confirm the difficulties of CJ. The alleged statement refers to a briefing of 11 senior judges by the CJ in matters relating to bail and stay order. Another lawyer referred to 'remote control' system that needed to be broken or eliminated.

Politicisation of the higher judiciary: The published news also speaks of politicisation of the higher judiciary. It refers to the fact that SCBA has accused the government of appointing judges more on political considerations than on merit and competence. If this accusation were true, independence of the judiciary, guaranteed in our constitution, would be something devoutly to be wished but unlikely to be achieved.

Political divide across the bar: It is widely known that there is a political divide across the bar. However, the published news has provided the reactions of two ministers of the alliance government. One of them termed the statement of president of SCBA as 'vicious' and threatened him with contempt of court. The other minister called SCBA resolution 'unfortunate'. He reacted by saying SCBA could have discussed the issue with the CJ instead of going public over such a sensitive issue. He further said that the action taken by the 186 lawyers was inconsistent with their responsibility which is to uphold the image and independence of the judiciary. A section of lawyers protested the action of SCBA (Prothom Alo, July 19, 2004).

Demands of public interest: The citizens of Bangladesh are not interested in statements and counter-statements of one group of lawyers across the political divide or the other. Indeed, the issues raised by SCBA is a formal one and is addressed to the CJ for remedial action in public interest and in the overriding interest to ensure independence of the judiciary and impartial dispensation of justice. This the SCBA has done in utter desperation, having failed to get remedy after previous discussion with the CJ as is reported in the press. Public interest demands that the allegations of inefficiency of some judges and the reported inability of the CJ to constitute appropriate benches for fair and expeditious disposal of criminal cases, on appeal, review or revision from subordinate judiciary, should be looked into and remedial actions taken. The allegations made are of grave and serious nature to be dismissed lightly on grounds of political divide among the community of lawyers.

Historic image of judiciary: The historic image of the judiciary, in particular, the higher judiciary, has never been in doubt. Even in case of magistracy, there was enough confidence among the people in the past. The courts immediately above that level also fully enjoyed such public confidence. Public perceptions appear to have changed now across the board. The UNDP (1997-98) report titled Human Security in Bangladesh: In Search of Justice and Dignity provides an analytical view of our criminal justice system. It was updated in 2002. According to one view, in Bangladesh 'an inefficient, complex and corrupt criminal justice system operating in an anti-poor environment'. Further it is said that "Pervasive corrupt influence of 'politics' is clearly at the root of the skepticism about the Criminal Justice System (CJS). The firm belief that money can buy anything and if money fails, appropriate and proper 'connections' can take any criminal out of any fix, rightly or wrongly, is the foundation of much of the skepticism about the criminal justice system" (CPD, Human Security in Bangladesh, 2003).

What has been left unsaid in the above view is that many innocent persons become victims of criminal trial for political or other reasons. The subordinate judiciary is unable to protect them. They come to get relief in the High Court. The SCBA's unprecedented, if a bit aggressive move, should be seen in that light. The allegations made by SCBA, however, merit attention and need to be addressed. This should be done in public interest and for the sake of keeping the entire judiciary, in particular the higher judiciary, above all controversy.

A M M Shawkat Ali, PhD is former Secretary, Ministry of Agriculture