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November 23, 2003 

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Judicial Independence

Do we really want to hear the people?

Naser Alam

The role of judges in the establishment of fair judicial process and in acting as the vanguard of fundamental rights has become a household issue in the past few years. The debate as to the smooth functioning of the 'justice-holders' is by no means a new one in Bangladesh. The last two governments have equally been accused, either wrongly or rightly, of politicising the whole process and leading it to a political bog. It seems everyone wants to get something out of it and the civil society ultimately suffers from this enormous tension.

Framing the issues
No doubt our judiciary has been entrusted with the toughest constitutional duty to maintain the rights of the people. In a fragile democracy like ours, the judiciary has performed its duty with honesty, integrity and with great courage at times of national crisis to maintain the supremacy of our Constitution. Well, it seems this very trend and practice have been sought to be undermined.
Two broad issues have been debated recently - the issue of judicial appointments and the judicial separation. Both bear an inherent link and one cannot be solved without solving the other.

The dilemma different thoughts
I am a great admirer of our bench, but I seem to ponder were my Lordships' effort in creating a "roadmap" for the independence of the judiciary a well thought one? I have two reasons to confine myself to this: was it a good idea to leave the whole matter (in real terms) of independence of judiciary to the government? Why did we not think about creating an independent commission of distinguished professionals to detail the roadmap? Can we really get an independent judiciary where the government is the ultimate planner and decider? I doubt. I am sure we are focused elsewhere. Well, time has not stopped to act on this. Leaving it to the government and directing them to perform under the guidelines of our Lordships is simply counter-productive. We have seen why. Judicial independence has not yet been achieved and we would not achieve it unless we begin with an independent authority commissioned to do it to examine what the government is doing, even if the government if minded to achieve a benevolent result.

We have failed to choose a consultation process. But, the guidance is an excellent example of a dialogue between the two organs to achieve a goal.

Public participation
Did we forget that the Constitution is for the people? My reason in saying this is simple do we hear the people. There have been various fronted movements to unseat or seat various judicial appointments. There have been political undertones in many of them, but was there a due process to hear the people? Here I come back to my argument that leaving it to the government to plan, decide and implement are taking the general people out of the decision making process. The result is a clash of belief. Their Lordships did have honest intentions, but would it not have been better to involve people into the process rather than wait for people to revolt against a defective mechanism?

There are stronger reasons to allow for public participation in these decisions making as it affects them in every way and the risk they bear in having to be subjected to a non-consensual process is far greater than the risks faced by the governments. I do not think referendum is an effective choice, simply because people would not trust it.

Why bother about people?
I quote Lord Falconar, the Lord Chancellor of UK on this. He said recently, Judges preside not only over the cases which arise in the criminal and civil justice systems but their decisions affect society in many other areas such as human rights, judicial review, family law etc. They are very often entrusted to chair major inquiries whenever an impartial, independent investigation is required.

Even if the government decides to separate the judiciary now, let's say in a matter of a day, would there be public confidence with the process and on the judiciary? I doubt greatly. I hope the government also understands the danger in keeping the matter of "road mapping" the independence process exclusively at its domain. Should it not be delegated to an independent authority to start with?

The core of judicial independence
This is what a recent consultation paper in UK as to judicial appointment had to say:

In a modern democratic society it is no longer acceptable for judicial appointments to be entirely in the hands of a Government Minister. For example the judiciary is often involved in adjudicating on the lawfulness of actions of the Executive. And so the appointments system must be, and must be seen to be, independent of Government. It must be transparent. It must be accountable. And it must inspire public confidence. Once appointed, judges have security of position - judicial independence depends upon it. So the decision to appoint must be the right one, in every case. Another central theme will be accountability. Those responsible for judicial appointments must be accountable to Parliament without it becoming part of the political process and consideration will need to be given to ensuring that this is achieved.

A Judicial Appointment Commission?
"We need an independent Judiciary" sounds very pro, but how? We need a radical change to the judicial appointments system to enable it to get closer to ensuring justice for all, to the people and to those who govern them and to meet the needs and expectations of the people. A Commission can achieve judicial independence, will make the system for appointing judges more open and more transparent, and will work to make our judiciary more reflective of the society it serves. The commission can work as a hedge against monopolisation of power by the government. Would it really? Commission's independence depends on the independence and transparency of the appointment process of its members.

Improving credibility and legitimacy
The recent appointments are devoid of public confidence, perceived as biased, unaccountable and lacking in transparency. This perception has damaged public confidence in the administration of justice and deters qualified candidates to become a part of the higher judiciary. If this continues, we have reason to be worried about great social danger.

The UK consultation paper aspired that an independent Judicial Appointments Commission will be able to bring a wide range of experience, professional background and fresh ideas to the process, to help ensure that judicial appointments are underpinned by best practice in recruitment. This requires the creation of the processes, systems and culture which are needed to ensure that the selection and appointment procedures are fair, equitable and transparent to all, and which help to ensure the widest range of candidates for the modern judiciary. It is important to consider how members of the new Appointments Commission are themselves appointed since the independence from Government of the new Commissioners must be beyond question. These reforms are of very real and lasting importance. They must be implemented in a way which commands the widest possible support.

Concluding remarks
The whole nation not only has a democracy crisis, but leadership crisis is rife. The judges are the passive leaders of any democracy and social justice. If we lose this institution, there would be permanent damage to the balance of social powers within the nation. Its consequences are even hard to imagine. Hope we are all listening.

Naser Alam is a Barrister and Advocate, Supreme Court of Bangladesh.

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