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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 85
September 13 , 2008

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Independence of judiciary and reality

Najmul Hasan


To ensure absolute independence of the judiciary England had to fight a long and sustained battle and it was not until 1701 that she was able to achieve that object. On March, 23, 1954 Sir Winston Churchill said to the Judges, “There is nothing like them at all in our England. They are appointed for life. They cannot be dismissed by the Executive Government. They have to interpret the law according to their learning and consciences.”

About the salary of judges it is recognised in England that it should be such that they should be able to maintain a way of life befitting the gravity of the duties they have to discharge. They are at present the highest paid officials in England except the Prime Minister and a few others. Lord Denning said, “Such is the price which England readily pays so is to ensure that the Bench shall command the finest character and the best brains, that we can produce”.

In the words of Sydney Smith, “Nations fall when the Judges are unjust because there is nothing which the multitude think worth defending but Nations do not fall which are treated as we are treated.”

If we cherish the independence, efficiency and impartiality of our Judiciary as the people do in England, we should see to it that the judges are better paid, that they are able to work so long as they are fit, that their salary and pension are increased and that they have nothing to look forward to at the hand of the government either in the course of their service or after their retirement. The service, promotion and appointment of the Judges should be made immune from the action of the government and their service, promotion, salary etc. should not be in the hand of the executive and the government so that the government or any other quarters cannot exert any influence upon the judges.

All political parties, specially while in the opposition, shout for rule of law and independence of the judiciary. In all political movements the demand for rule of law and independence of the judiciary was one of the main slogans in our country and yet the rule of law and complete independence of the judiciary could not be achieved. One of the main slogans of the political party in power was “Rule of law and for the independence of judiciary” and still the same has not been fully achieved and established even after passing of 37 years of independence.

The parties, in the opposition, in full throat shouted for rule of law and for independence of the judiciary but while they were in power they did exactly the opposite. They did not make any efforts for establishing “rule of law and independence of the judiciary” rather they tried to make judiciary subservient to the Executive and the government and to that end they did not hesitate to amend the constitution from time to time to suit their purpose.

The first major encroachment upon the independence of the judiciary and to make it subservient to the executive was made by the 4th Amendment of the Constitution. The power of impeachment of the judges was taken away form Parliament, and the President was vested with the sole authority to remove judge of the supreme court without any charge, notice or show cause.

That was the first blow upon the “Rule of Law and the Independence of the Judiciary” immediately after independence. Thereafter, from 1982 to 1990, attempts were made to weaken the Judiciary further and to make it subservient to the Executive by eight amendment and bifurcation of the High Court Division of the Supreme Court of Bangladesh.

During the last regime and the government preceding the present one, perhaps the cruelest blow was inflicted upon the Judiciary when four senior most eminent Judges of the Supreme Court of Bangladesh were removed arbitrarily.

The aforesaid removal of the senior most judges including the chief justice shall always remain as the most naked act of encroachment upon the rule of law and the independence of the judiciary.

Even under those unfavourable conditions judges of the Supreme Court made their utmost to uphold the dignity and independence of the judiciary. Subsequently it was the Supreme Court of Bangladesh which restored back its power, authority, jurisdiction and independence to a great extent by its unparallel historic judgment declaring the 8th Amendment to the Constitution in relation to the bifurcation of the High Court Division and curtailing of its overall jurisdiction over all the territorial jurisdiction of Bangladesh as illegal, un constitutional and void.

Till date the reasons for the removal of the affronted senior eminent judges of the Supreme Court form their office are not known. These eminent judges were not only removed form service most illegally and arbitrarily in flagrant violation of all norms, ethics and principles, they were as well restrained from practicing law for their livelihood and were refused any compensation or pension whatsoever, except Chief Justice Kemaluddin Hossain who was given pension.

One of the four judges, Justice S M Hussain, could not absorb the shock of his illegal removal form service and died of cardiac failure, leaving behind his widow and minor children penniless and without any shelter. It is shocking that till today nothing worthwhile has been done to compensate and redress the family of that eminent, dedicated judge and other three judges of the supreme court of Bangladesh.

Justice S M Hussain became a victim of the past regime, along with other three eminent judges, for their uncompromising and unflinching judicial temperament and relentless endeavour and efforts to establish rule of law and safeguard independence of the judiciary. Many years have passed since my respected teacher Justice S M Hussain has died in agony and helplessness in his tormented mind but we the lawyers and officers of the court will never forget him and the names of Justice S M Hussain, Justice Abdur Rahman Chowdhury and Justice K M Sobhan will always be remembered.

It is now quite evident that the political parties always shout for “rule of law and independence of the judiciary” not for the sake of the judiciary but to achieve their political objective and to give impetus and momentum to their criticism and movement against the party in power.

Now it is high time that the slogan needs to be raised by all lawyers irrespective of cast creed and political affiliation unanimously (not by politicians) to achieve rule of law and the independence of the judiciary in the country.

As referred to in the historic 8th Amendment case judgment that independence of judiciary is not an abstract concept. The reference given therein where Judge Vagabati said “If there is one principle which runs through the entire fabric of the constitution it is the principle of the rule of law and under the constitution it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law and thereby making the rule of law meaningful and effective”. He said that the judges must uphold the core principle of the rule of law, which says “be you ever so high, the law is above you.” This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy and maintenance of the rule of law as dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which must be kept in mind while interpreting the relevant provisions of the constitution.

The writer is an Advocate, Supreme Court and former General Secretary, Bangladesh Ainjibi (lawyers') Federation.


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