Separation
of judiciary and beyond
A
M M Shawkat Ali
...................................................................
The
Supreme Court (Appellate Division)
has recently granted the 15th extension
of time to the government to implement
its directives for separation of the
judiciary from the executive. While
this has been an endless process starting
from the initial days of the British
colonial rules, the debate over the
subject in recent times has concentrated
more or less on constitutional principles
until the Supreme Court intervened
in 1999 in a landmark judgment to
provide the road map that it thinks
will ensure complete independence
of judiciary from the executive.
It
is felt that the road map provided
will no doubt vest complete control
of the Supreme Court over the subordinate
judiciary in terms of recruitment,
training, transfer, posting and discipline
of the members of the judicial profession
at the district level. The constitution
of the much awaited Judicial Service
Commission (JSC) for recruitment of
judges of the subordinate courts is
expected to ensure fair and impartial
selection of members of the subordinate
judiciary. In India, although there
is no JSC, the High Courts (HCs) have
complete control over the subordinate
judiciary. The Supreme Court of India
interpreted the expression "control"
to include appointment, posting, transfer,
discipline and all other conditions
of service. The view taken by our
Supreme Court is more or less similar
to the one existing in India.
Some
writers in the recent past have articulated
their views that following separation
of the judiciary from the executive,
there will still be some grey areas
that may act as impediments to the
working of a dependable, fair and
impartial judicial system. In this
context, it has been argued that "for
the long time benefit of the society,
in general and the legal and judicial
professions in particular, there is
no other alternative but raising the
conscience of our legal and judicial
professionals with regard to ethics,
professional responsibility and accountability".
The recent uproar created by the bail
order of some convicted persons points
out the need for high standards of
professional ethics on the part of
lawyers, in particular, state-appointed
lawyers.
Apart
from recruitment, training and high
ethical standards of judges and lawyers,
what other steps need to be taken
to derive benefits from the judicial
system need serious consideration.
This is because without a clear identification
of other elements that constitute
the next steps, sustainable benefits
may not accrue to the citizens out
of a theoretical separation of the
judiciary from the executive.
Monitoring
mechanism
Introduction or reintroduction of
regularly published statistical data
relating to (a) prevention and detection
of crimes and (b) administration of
criminal justice appears to be a key
issue for a more informed citizens'
perception about the state of crimes
and the society. It will enable the
citizens to have a clear view of the
value for money (VFM) spent on administration
of criminal justice.
There
were two major sources, which provided
such information. The first was the
annual administration report published
by the Police Directorate. Although
the report was restricted to 'official
use only', it nevertheless provided
the basis of assessment of police
work in the prevention and detection
of crimes in the country. It is not
known if this is regularly published.
The document should be de-classified
and published on a regular basis.
A
non-classified document used to be
published annually by the then HC,
was titled 'Report on the Administration
of Criminal Justice'. Anybody interested
could buy it on payment of a nominal
price. It used to contain useful information
on administration of criminal justice
in terms of the number of cases brought
to trial, disposed of and the results
of trial. It covered all classes of
courts including the HC. In particular,
it provided information on the length
of time taken in the disposal of cases
triable by the Courts of Sessions.
The HC would note all cases of unusual
duration. The system appears to have
broken down and needs to be revived.
It
is reported that the HC Division of
Supreme Court has a monitoring system
on the filing and disposal of cases.
The Sessions Judges and the District
Magistrates are required to inform
the HC Division on the status of disposal
of criminal cases every month. A Judge
designated for the purpose reviews
these aspects and appropriate guidance
is provided to the subordinate courts.
This is one of the statutory responsibilities
of the Supreme Court as envisaged
in the HC's Rules and Orders.
The
citizens have no means of knowing
how effective is the monitoring system.
The fact that the HC has to issue
directives, for dealing with people
detained in jail for years without
trial seems to indicate the need for
further strengthening of monitoring
mechanism. Only recently, the HC has
asked the government to submit a detailed
report on the cases of 155 prisoners
languishing in the Dhaka Central Jail
for years without trial.
It
is felt that in the post-separation
period, this system of monitoring
will need to be institutionalized
and made transparent in order to enable
the citizens to be better informed
than they are at present. How this
will be done will be a matter for
the Supreme Court to decide. The new
monitoring mechanism to be put in
place will be relevant only in cases
for which charge sheets have been
submitted. The successful and speedy
trial will depend on the ability of
the police to ensure timely attendance
of key witnesses.
Objectively
Verifiable Indicators (OVIs) of performance
A closely related issue is the need
for assessing the performance of the
judges of both higher and subordinate
judiciary through OVIs. This is important
because we often hear from the public
speeches of judges that 'Justice Delayed
is Justice Denied'. In order that
this does become a refrain, standards
of performance for judges must be
set.
Regulatory
framework for criminal administration
The police thus become a key actor
in the process of speedy trial. The
quality of trial depends not only
on the quality of the judges but also
on the quality of investigation by
the police and the extent to which
the police is able to secure the cooperation
of material witnesses. The newspaper
reports of bail orders in sensational
cases underscores the importance of
quality of prosecution which again
depends on the quality of investigation.
The ability of the police to complete
investigations in time without any
let or hindrance and their ability
to produce the witnesses on the appointed
date will substantially contribute
to speedy trial of offenders.
In
order to achieve all of the above
objectives, during the post-separation
era, the mechanism for extra-departmental
supervision of and control over police
work will assume increasing importance.
This mechanism exists in the Police
Regulation of Bangladesh (PRB). It
has become dysfunctional for various
reasons in the districts falling,
outside the metropolitan police jurisdictions.
In
the metropolitan areas, a vacuum appears
to exist as the Police Act of 1861
has no applicability in such areas
and the PRB was framed under the Act.
On the otherhand, regulations under
the metropolitan police laws are yet
to see the light of the day. It is
felt that the current debate on improving
the state of prevention and detection
of crimes and administration of criminal
justice is going on in a piecemeal
fashion. There are lots of suggestions
about a separate prosecution branch
but not so much on the various important
elements that constitute the total
edifice. It consists of judges, lawyers,
police, the law officers appointed
by the government and the regulatory
framework that should guide their
actions.
Prosecuting
mechanism
The police in fact are responsible
for investigation into criminal offences
and bringing the offenders to the
appropriate courts of law. The prosecution
of offenders starts in the law courts.
In the magisterial courts, there is
branch of Court Inspectors or Sub-Inspectors,
more popularly known as 'Court Daroga'
who act as prosecutors. Traditionally,
this branch has been a dumping ground
of inefficient police officers. When
we speak of a separate prosecution
branch, it should be managed by persons
of appropriate qualifications and
experience, other than the police.
The issue of recruitment to this branch
may have to be carefully decided.
Ideally, they should be recruited
on the recommendations of JSC in order
to ensure impartiality and fairness
necessary for ensuring quality of
prosecution.
Transparency
in recruitment of judges in the higher
judiciary
Apprehensions have been expressed
about the impartial and fair selection
of judges in the higher judiciary.
Questions have also been raised that
age-old and time-honoured convention
of respecting seniority in the matter
of elevation to the appellate division
is not followed. The President of
the Supreme Court Bar Association
is reported to have said "now
there was no transparency in the process
of appointment of judges and they
were being appointed on political
considerations" (The Independent,
January 7, 2004). Perceptions such
as the above serve only to undermine
the image and authority of the higher
judiciary. This will need serious
attention in the shape of constitutional
reforms.
Abolition
of extra-legal mechanism
Finally, recent newspaper reports
indicate the existence of an extra-legal
interrogation cell called Joint Interrogation
Cell (JIC). It is normally used as
a torture cell by intelligence agencies
in selected cases. Persons on remand
to police custody are handed over
to JIC, which is illegal. This system
should be abolished by a directive
of the Supreme Court.
The
next steps as outlined above are by
no means complete but these are some
of the important aspects that will
need serious consideration of all
those interested to have a well-functioning
legal system but effective operation
of the principle of Rule of Law.
.........................................................
The author is a former secretary
to government.
