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Do we have an Independent Judiciary?

DR. ZAHIDUL ISLAM BISWAS posits that even after the formal separation of the judiciary from the executive, the judiciary is yet to act independently of political influence.

Independence of the judiciary is undisputedly said to be the basic requisite for ensuring a free and fair society under the rule of law. To put it simply, independence of the judiciary means the institutional independence of the judiciary as well as of the judges who form a part of the judiciary. While the judiciary as an institution should be independent in terms of finance and administration, the judges should be independent and free from all external factors in order to exercise the judiciary's functions in an unbiased manner. The primary talk on the independence of the judiciary is based on the doctrine of separation of powers, which holds that the judiciary should remain separated and independent from the executive and the legislature branches of the government.

Despite a constitutional mandate for separation of judiciary from the executive organs of the state, until 2009 the subordinate courts in Bangladesh remained formally subject to executive control with magistrates performing the dual role of executive officer of the government as well as that of a judicial officer. In 1999, the Appellate Division of the Supreme Court gave a landmark judgment in Secretary, Ministry of Finance v Masdar Hossain (20 BLD (2000) AD 141) re-affirming the constitutional mandate for independence of the judiciary and laid out a roadmap to achieve separation of the judiciary from the executive with respect to the lower courts, both civil and criminal. Until 2006, the judgment remained largely unimplemented.

In 2007, the caretaker government took initiatives to implement the judgment by promulgating two ordinances ( No II and IV of 2007), and by making four service rules namely (a) Bangladesh Judicial Service Commission Rules, 2007, (b) Bangladesh Judicial Service (Pay Commission) Rules 2007, (c) Bangladesh Judicial Service Commission (Constitution of Service, Appointments in the Service and Suspension, Removal & Dismissal from the Service) Rules, 2007 and (d) Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Discipline and other Condition of Service) Rules, 2007. The present government in 2009 amended the Code of Criminal Procedure 1898 by Act No. XXXII of 2009, which formally removed the impediments in the separation of the lower judiciary from executive control, and in the appointment of judicial magistrates. How independently has our separate Judiciary functioned in the last three years after this formal separation? How much independent our present judiciary is? This write-up examines these questions.

The Bangladesh Judicial Service Commission since its establishment in 2007 has conducted five judicial service examinations, and accordingly recruited and appointed judges to the lower judiciary. However, no separate secretariat has been established for the judiciary, and thus appointment, transfer, promotion of the judges of lower judiciary are still administered by the executive through the Ministry of Law, Justice and Parliamentary Affairs, instead of the office of the Chief Justice. It is alleged that this results in inhibiting judicial independence, as premature transfers and arbitrary postings /promotions/ removals exert political pressure on the judiciary.

Serious controversy has arisen regarding the frequent appointments to the High Court Divisions of the Supreme Court. There are allegations that the appointments are marked by political bias. Bangladesh still does not have a legislation prescribing detailed 'qualifications' for the appointment of judges to the Supreme Court. Despite a strong civil society demand and a recommendation in the landmark judgment in Idrisur Rahman v Bangladesh (60 DLR 714) in 2008 for making law specifying appointment guidelines, the government has yet to enact such a legislation. Article 95 of the Constitution of Bangladesh provides for the appointment of judges to the Supreme Court. It dictates that a person cannot be qualified for appointment as a judge unless he or she is a citizen of Bangladesh and has practiced law in the Supreme Court for at least ten years, or has held judicial office in the country for at least ten years, or has other such qualifications as may be 'prescribed by law'. In the absence of a legislation prescribing detailed qualification, the 'at least ten years' experience as a lawyer or judicial officer appears as a broad criterion, leaving room for political manoeuvring in selection and appointment of judges to the Supreme Court.

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Appointment to the superior judiciary was not a controversial issue before the restoration of democracy in 1991. There was a convention of consultation with the Chief Justice before making any appointment. Until the fourth amendment of the Constitution in 1975, the provision was that 'The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.' The fourth amendment removed the explicit requirement that the Chief Justice of the Supreme Court of Bangladesh should be consulted as part of the process of appointing judges. Although successive governments have attempted to comply with the convention of consultation with the Chief Justice, political affiliation started playing a significant role in appointments of the judges to the Supreme Court from the 1990s onwards. In Idrisur Rahman v Bangladesh (60 DLR 714) in 2008, the High Court Division of the Supreme Court re-asserted the role of the Chief Justice, and made it clear that the recommendation of the Chief Justice would be binding on the President. The Appellate Division upheld the High Court's judgment in 2009 (15 BLC (AD) 49) and recommended making a law specifying guidelines. It clearly suggested that '[i]n the matter of selection of judges, the opinion of the chief justice should be dominant in the area of legal acumen and suitability for the appointment, and in the area of antecedents the opinion of the executive should be dominant.' On 6 June, 2010 the High Court asked the government to explain in six weeks why specific guidelines should not be framed for appointment of judges to bring transparency and competitiveness in the process. Two years have since passed and the government has yet to pass or even draft or provide for public discussion a law formulating guidelines for appointment of judges to the Supreme Court. In the meantime, it has made several appointments to the SC including the HCD. The 15th amendment of the Constitution in June 2011 brought back the provision of consultation with the Chief Justice. After this amendment too, several judges have been appointed to the High Court, apparently with the CJ's assent, but the nature of those appointments has given rise to questions in media and among the public as to whether the CJ was really consulted, and if consulted, then how the CJ could select some judges who are allegedly less qualified to be appointed to the higher judiciary.

There has been controversy over appointment of the Chief Justices of Bangladesh as well. In the appointment of the CJ, the principle of seniority, as reflected in Articles 96 and 97 of the Constitution and in Bangladesh v Md. Idrisur Rahman (15 BLC (AD) 49), was largely recognised. However, the principle has been repeatedly violated in recent years with four of the last six appointments seeing the senior-most judge of the Appellate Division being superseded. The appointment of Chief Justice A.B.M. Khairul Haque by the President in September 2010 was alleged to have involved the supersession of two more senior judges of the Appellate Division. The Supreme Court Bar Association, headed by members affiliated with opposition parties, condemned the selection. Similar controversies arose in the appointment of the present Chief Justice of Bangladesh, Justice Muzammel Hossain on 18 May, 2011. In this appointment, Justice Shah Abu Nayeem Mominur Rahman was superseded (and then he resigned).

There is criticism also regarding the appointment of public prosecutors, who play a great role in aiding the judiciary to come to a proper decision-making in state-led cases. Bangladesh has a longstanding practice of appointing ruling party-affiliated lawyers as public prosecutors. It is alleged that, following the practices of the past, the current government has replaced the entire group of public prosecutors with members or genuine supporters of the governing party and has also made politically motivated appointments to the Office of the Attorney General.

There are also allegations regarding arbitrariness in judicial action. There are frequent reports of High Court Judges refusing to hear matters on the grounds of feeling 'embarrassment'. This practice, in which no reasons are provided, has raised public concern. In May 2012, some judges of High Court felt “embarrassed” to hear the bail petitions of prominent opposition leaders, while yet another bench passed dissenting orders on a bail petition (“HC judge feels 'embarrassed'', The Daily Star, May 3, 2012).

The manner of refusal of bail to political leaders has raised concerns about whether the courts are functioning freely. In December 2009, the Dhaka District Court refused bail to opposition BNP leader (Ariful Islam) who was arrested in connection with the August 21 grenade attack case. In June 2010, another opposition leader (Mirza Abbas), an ex-minister and member of the BNP Standing Committee, was arrested. After he was granted bail initially, he was not released and was instead 'shown arrested' in relation to two new cases of burning vehicles during hartal and later was detained in jail. In May 2012, two High Court benches refused to hear the bail petitions filed by senior BNP leaders, who had been implicated in two criminal cases regarding arson attacks and bomb blasts in the capital during a hartal. On 16 May 2012, Dhaka Chief Metropolitan Magistrate's court rejected bail petitions of 33 top leaders of 18-party opposition alliance in an arson attack case, and sent them to jail (The Independent, 17 May 2012).

Controversy also arose due to withdrawal of cases on allegedly political considerations. In 2009, a committee was set up under the law minister to review applications for withdrawal of cases on the grounds of their being politically motivated. By March 2011, the committee had recommended withdrawal of 4,687 cases, most of which allegedly involved members of the ruling coalition (“Overview of corruption within the justice sector and law enforcement agencies in Bangladesh”, Anti-Corruption Resource Centre, p.5). These included twelve corruption cases implicating senior ruling party leaders, their supporters, and relatives. At the same time, the committee appeared reluctant to approve similar applications filed against opposition party leaders or by journalists and human rights activists including journalist Jahangir Alam Akash, whom the caretaker government had reportedly implicated in false criminal cases in retaliation for his protest against extrajudicial killings.

Presidential pardons in several sensational murder cases to persons affiliated with the ruling party seriously undermined the rule of law. In September 2010, President Zillur Rahman granted presidential pardons to 20 death row inmates (some allegedly affiliated with the ruling party) who were convicted of the murder of the Jubo Dal (opposition party BNP's youth organisation) leader Sabbir Ahmed Gama, nephew of the former BNP deputy minister Ruhul Quddus Talukdar Dulu, who had been gunned down in 2004 in Natore. In July 2011, the President granted a pardon to AHM Biplob, son of ruling party leader Abu Taher of Laxmipur, who was convicted and sentenced to death for the murder of Nurul Islam, a leader of the main opposition party, the BNP.

Thus, the questions and doubts as to an independent judiciary have come into public discussion time and again due to controversial appointments to the High Court, arbitrariness in judicial actions, appointments of Chief Justices, withdrawal of cases on political ground and arbitrary presidential pardons in the last three years even after the formal separation of the judiciary from the executive. Does this government believe that people have every right to know the answers to these questions? If it is so, then it should act immediately to dispel all these doubts from public consciousness.

Dr. Zahidul Islam Biswas is an advocate at the Supreme Court of Bangladesh and also a consultant for research and advocacy at Bangladesh Legal Aid and Services Trust (BLAST). He can be reached at zahid.bangladesh@gmail.com