Strong judiciary for functional democracy

Sheikh Hafizur Rahman Karzon

...................................................................

An independent judiciary is sine qua non for any democratic polity. The judges are put on a high pedestal. In countries of written Constitution, the courts are regarded as temples of justice, the judges its oracles. Constitutional supremacy presupposes the existence of a strong neutral organ, which would be able to prevent unconstitutional onslaught by the executive and legislature. When democracy is in danger or the executive tramples rule of law, then judiciary, people expects, will stand with vigorous effort to save democracy and rule of law though the deposed executive or the dissolved legislature do not come forward.

A social structure remains coherent and cohesive with the aid of a sound judicial system. Judiciary redresses the grievances of the people, and resolves disputes. The dysfunction of judiciary impacts more severely than that of any other institution as it removes from the mind of people the sense of attachment with the society. In Bangladesh the judicial norms and practice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary.

Numerous charges pointed that corruption has penetrated into the contours of lower judiciary. The subservience of lower judiciary to the executive also hinders it's proper functioning. Dr. Kamal Hossain, eminent lawyer of this country, pleaded to issue a contempt rule against the government for not complying with the highest court verdict to separate the judiciary. How the independence of the lower judiciary could be ensured was taken into account in Masdar Hossain case (Secretary, Ministry of Finance Vs. MD. Masdar Hossain, 20 (2002)) BLD, AD). The judgment recommended establishing a Judicial Service Commission to deal with different matters of judicial officers including their appointment and promotion.

Recently some of the negative trends of the higher judiciary come to the fore making people anxious about the future of the judiciary. Firstly, due to the faulty appointment procedure, the executive appoints those people in the seats of judges who have some inclination to the party in power. Political consideration drives away the quality, integrity and high judicial standards of judges, which are required to ensure proper dispensation of justice.

Corruption charge against Mr. Justice Syed Shahidur Rahman is being investigated by the Supreme Judicial Council. Secondly, the confirmation of additional judges of the High Court Division situates within the absolute domain of the executive, hence it is extensively practicing caprice in not confirming the judges appointed by the previous government. In last 20 years 22 judges were not confirmed on completion of their two years period, among them 16 had to go back to the Bar during the tenure of the present government. Thirdly, the executive violates seniority in appointing judges in the Appellate Division of the Supreme Court.

The Appellate Division is placed at the top in the judicial hierarchy of Bangladesh. Successive governments have appointed judges in the Appellate Division by violating seniority, not with a purpose to place highly qualified judges there, but to remain tension free that people having some soft corner to them are sitting in the apex of the court. Starting from 1976 different governments violated seniority more than ten times when appointing judges in the Appellate Division.

Another negative trend, after the introduction of the Thirteenth Amendment, is moving round the appointment of the Chief Justice. Again political consideration becomes very important. The last retired Chief Justice, who has utmost possibility to become the Chief Adviser of the next caretaker government, has to sustain heavy vigilance from both the government and opposition side. There is a trend among the governments to appoint judges in the Appellate Division, whom the government considers to have some fascination to it.

If that person is appointed as Chief Justice and will retire before the tenure of the caretaker government starts, he will be the Chief Adviser, which, the political party considers, will be conducive to win the next election. Keeping this intention in mind political party in power is giving appointments in the Appellate Division which creates an apprehension of polluting the whole higher judiciary.

The original Constitution placed the judiciary in an independent position so that it could keep check and balance and act as the guardian of the Constitution. In 1975 the judiciary was made subservient to the capricious authority of the executive, the caprice, which has been enjoyed by all governments, both military and civilian. In the U.S.A. all Supreme Court Justices are nominated by the President and appointed by and with the advice of the Senate.

The Indian Constitution provides for the appointment of judges of the Supreme Court by the President in consultation with the Chief Justice. In the United Kingdom judges are appointed by the Crown and they hold office during good behaviour. As a country of parliamentary sovereignty judiciary has not been put in a position like U.S.A. or any other country having written Constitution, nevertheless British Judicial system administer justice with independence, promptness and impartiality.

Appointment of judges is very important pre-condition for an independent judiciary. Article 95 (1) of the original Constitution provided that, the Chief Justice shall be appointed by the President and the other Judges shall be appointed by the President after consultation with the Chief Justice.

The mandatory provision of consulting Chief Justice in the appointment of Judges was a unique feature of the original Constitution as it fulfilled the first pre-condition of establishing an independent and strong judiciary. But by the Fourth Amendment the provision of "consultation with the Chief Justice" was withdrawn. Due to this omission now the appointment is dependent on the sole wish of the executive. Under the present Constitutional dispensation the Chief Justice and other Judges are appointed by the executive.

Appointment of judges in the High Court Division, their confirmation, and again their appointment in the Appellate Division vest in the executive. Some times executive maintained the convention of consulting the Chief Justice in appointing judges, but there are numerous instances when different governments grossly violated judicial norms and convention. Narrow political consideration prompts the authority to do so, even at the cost of justice. The way the present government dealt with the appointment and confirmation of judges that aroused violent criticism by different quarters.

Judiciary is the last resort of people, still they consider it sacrosanct and want to take shelter in case of grave injustice. Constitution of judicial probe committee is demanded to investigate large-scale terrifying and vicious activities. In any political or social crisis, the judges are confided to.

Under the scheme of caretaker government retired Chief Justice is appointed as the Chief Adviser of the transitory government. In spite of all the limitations, judiciary still enjoys high respect in the esteem of the populace. Still we can invoke articles 7, 26 and 102 of the Constitution and basic structure principle to buttress the supreme role of the judiciary.

The political parties and the executive do not seem to be sincere in awarding full independence to the judiciary. Unhindered authority of the party in power, and the caprice of the executive may have been curtailed greatly by the judicial authority. This apprehension is expressed by government's taking time again and again throwing the whole democratic system in the wilderness.

Civil society should come forward, and the politicians and executive authority should understand that a sound judicial system keeps equilibrium of a society. If the judicial edifice weakens, the democratic system will not function, and social fabric will be broken down.

........................................................
Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, University of Dhaka.