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  <%-- Page Title--%> Issue No 166 <%-- End Page Title--%>  

November 21, 2004

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The constitution and judicial independence

Imtiaz Omar and Zakir Hossain

Post-colonial constitutions have their distinctive flavour of elaborate provisions of separation of judicial power and judicial independence. The Bangladesh constitution is no exception. An added dimension which the Bangladesh constitution shares with a few others is the establishment of Supreme Judicial Council to enquire into allegations of misconduct, impropriety, and infirmity of Supreme Court judges.

Recently, allegations were made from the Bar that one of the newly appointed judges of the High Court Division had manipulated his LL.B. transcript. Faced with an intransigent situation of impending boycott of the Court by members of the Bar, and the refusal of the accompanying judge to sit with him in a Division Bench, the Chief Justice has stood down the concerned judge.

The major question that has arisen among some sections of lawyers, judges, academics, commentators and journalists is that, should the Supreme Judicial Council be invoked to address this problem. The judge under question has not been confirmed yet; he is a temporary judge. For purposes of argument, it is accepted that the Chief Justice has certain responsibilities and discretion to see to it that respectability and legitimacy of the supreme constitutional judicial organ of Bangladesh be maintained and perpetuated. So a temporary judge can be stood down. If the concerned judge has, in fact, manipulated his academic transcript, it is an abhorrent act. It has in fact been found by an enquiry committee appointed by the Chittagong University authority that he has done so.

Despite all these, there should not have been any insurmountable problem in convening an enquiry by the Supreme Judicial Council which has been established by the Constitution to take care of this rather sordid state of affairs. That course of action would have enhanced the legitimacy of the action taken in respect of the judge. It would also entrench the respectability of the Chief Justice. Beyond all these, it would have given the impression that matters like this can be taken care of an institutional procedural way rather than by seemingly partisan tactics by sections of the leadership of the Bar Association.

Maintaining the legitimacy and independence of the judiciary is a difficult task in any country. The responsibility for this lies not only with political branches of the government, but also on the Bench and the Bar, and the enlightened citizenry. Some instances of encroachment on the independence of judicial domain in Bangladesh may be remembered as lessons for the future. One judge of the Supreme Court who was destined to be the Chief Justice had his dream unfulfilled because the retirement age was abruptly lowered. Another Chief Justice could not serve out his term, because by military decree a two-year serving Chief Justice automatically retired. Members of the Bar persisted in boycotting the Court in 1982 because of decentralisation of the High Court Division.

Despite everything, the Bangladesh Supreme Court played a significant role in government. One Chief Justice stepped into take over as President in a situation of chaos after military coups and counter coups. Significant political questions, which were incapable of resolution in the political processes, were determined by our Supreme Court. Whenever possible, the Supreme Court displayed a bold and courageous stand against political excesses.

It is very important that our highest judicial institution be safeguarded from partisan political intrusion, erosion of legitimacy, and unwise judicial statesmanship. The Bangladesh Supreme Court is a bastion of political balance in the society and polity, but a fragile bastion. Everyone shares the responsibility of protecting this fragile bastion. No one should lay siege to it in any way.

Dr. Imtiaz Omar is a constitutional law scholar based at the University of New England, Australia, and Md. Zakir Hossain is Associate Professor and Chairman of the Department of Law, University of Chittagong.




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