Judiciary and politics
Each of the three organs of a state namely Judiciary, Legislative and Executive is assigned with some routine tasks and functions and sometimes the functions of these organs may to some extent be overlapping. But the functions of these departments are not so overlapped as to frustrate the smooth functioning of the tasks of any other department but to assist them.
We all know that among these three organs judiciary is the most sensitive one. It is sensitive in the sense that only this organ is authorized to give verdict as to life, death, property and liability. Since this department is so sensitive so it is expected to be and should be kept in such a condition that it will not decide about people's life or death whimsically and capriciously. With this aim in view, independence of judiciary is a fundamental requirement.
Substantive independence is regarded as the corner stone of independence of judiciary. This is because if in all other respects judiciary becomes independent but the judges themselves remain biased, partial, motive oriented or politically motivated then they will not be able to give birth to the desired result. In this article I will discuss some provisional defects of our Constitution which tend to destroy the substantive independence, the corner stone of independence of judiciary.
According to article 95 of our Constitution the chief justice and other judges of the Supreme Court shall be appointed by the President. When there is chance that the chief of a political party may be elected as the President of a country and at the same time he is authorized to appoint the judges of the Supreme Court of that country then there is least possibility that such judges will not be appointed on political consideration. And when a judge is appointed on political consideration then it is bootless to expect that he will perform his judicial functions without being motivated by political consideration. So when the reason behind the judgments of a judge is political consideration then none can expect justice or fair trial. In such a case judiciary will work according to the invisible gesture of the politician.
When judiciary of a country is immersed into politics in such a way then it will cause more injustice to the people which would not be caused had there been no judiciary at all.
Again according to article 96(5) termination of the tenure of the judges depends on the subjective satisfaction of the President by the misuse of which he can compel the judges to comply with his desire. Politics has great importance for a state at the same time judiciary is the place of supreme hope and aspiration, the place of ultimate reliance. But politics should not be so mingled with judiciary as to defeat the purpose of judiciary.
Lemon is a tasty and nutritious fruit at the same time milk is good for our health but the mixture of these two items is in no way beneficial rather it may cause serious danger to health. In the same way politics and judiciary though both are important but not in their mixture rather in their respective places.
So provision should be made so that a highly political person cannot be a President or a President cannot in anyway unilaterally interfere with the judiciary.
The writer is studying law at the University of Dhaka.