Law alter views
Judiciary, Justice and Bangladesh
Shamsher Chowdhury
Justice in this country sometimes appear to operate on a selective basis. Nothing disserves the cause of justice more than its unequal and selective application. You often see court directives being routinely violated subtly and directly both by lawmakers and individuals with power bases. One only has to take the example of this longstanding issue of separation of the Judiciary from the Executive. The way this one single fundamental issue of making the judiciary independent is being continually and willfully set side time and again, is alarming. How can a magistrate a comparatively lower ranking "official of the government" even think of being just when his allegiance and accountability is tied with an administrative wing of the government? In the process access to justice is gradually becoming the pampered privilege of the elites and the powerful, instead of being the peoples dearest imperative in seeking human freedoms. Prevalence of such travesty of justice and the judicial system give rise to popular upsurge and often leads to prolonged chaos, confusion and avoidable tragedies, the way it is with Bangladesh. .
On the other hand yet another cardinal weakness in our system is that it has been systematically rendered weak and powerless by irresponsible behavior and utter lack of "vision " on the part of its custodian at all levels. Judges are Judges and often "hand out what is just in the eyes of the law" for implementation at various levels of the society. It is then the business of the implementers to see to their just execution. Unfortunately in this country both the players in the "system", the dispensers and the implementers are equally to blame. The implementers operate solely on the basis of vested interests and muscle power, the classical blend between power and justice is essential for upholding the institution of the Judiciary for effective meting out of social justice at all levels.
This thought is best expressed in the words of Blaise Pascal I quote "Justice without power is inefficient; power without justice is tyranny. Justice without power is opposed, because there are always wicked men. Power without justice is questioned. Justice and power must, therefore, be brought together, so that whatever is just may be powerful, and whatever is powerful may be just". Unquote. Here in our beloved country, the powerful it is the more unjust it is.
The other related issue is, Judicial Accountability. I am afraid even in that sphere there is much to be said. All Public Power is a peoples' trust and judicial power is no exception. While Executive power is accountable to the Parliament and the parliament to the people, the judicial power is not accountable to either the Executive or the Parliament directly. In a truly functioning democracy it has to be answerable to the people.
Our judges and lawyers must not become mere instruments hidden behind their "robes". They should also be able to defend, protect and cherish law and justice with an eye for history and heritage dictated by purest elements of morality and ethics. This issue has found its classical and immortal expression in the words of Jerome Frank in the Courts of Trial, I quote " An immature society may need or like to fear its rulers, but a vital and developing America can risk full equality. A judge who is of a legal system serving present needs should not be clothed in the quaint garment of the distant past. Just as the robe conceals the physical contours of the man, so it needlessly conceals from the public his mental contours. When the human elements in the judging process are, covered up, justice operates darklingly." Unquote.
The dispensation of justice by a nation's judiciary is also reflective of the political philosophy it pursues and its moral and ethical character. I believe it is worthwhile to quote here an excerpt from Harold J Laski's, A Grammar of Politics --- pp54142. I quote, " Obviously therefore, the men who are to make justice in the courts, the way in which they are to perform their function, the methods by which they are to be chosen, the terms upon which they shall hold power, these, and their related problems, lie at the heart of political philosophy. When we know a nation-state dispenses justice, we know with some exactness the moral character to which it can pretend." Unquote. Yes political philosophy of holding on to power in all its dimensions by various political parties small and big, in and out of axis of power of government has also largely contributed to the very unstable existence of the Judiciary and Justice.
Given the will and sincerity of purpose judiciary in Bangladesh can be greatly improved. It is interesting to note that judiciary in neighboring India whose political philosophy and its workings are in essence no different from that of Bangladesh, continues to be of high integrity and effective in responding to nearly all major issues of concerns of the people.
The author is a freelance writer.
