Judiciary separated, not effectively yet

An effective and meaningful separation of lower judiciary from the executive has not really worked out as expected even after eight years of an official separation of judiciary. 

The government has not really done anything meaningful to restore the Supreme Court's authority over the lower courts. The apex body used to have control over the appointments, postings, promotions and granting of leave, and disciplining persons employed in the judicial service until the fourth amendment to the constitution in 1975.

To bring back those powers to the SC, the original articles 115 and 116 of the 1972 constitution needs to be amended. The changes, according to legal experts, are also required, to ensure independence of the judiciary.

The apex court in several judgments has also spoken for reinstating the original articles 115 and 116 for an effective separation of judiciary.

The lower judiciary was officially separated from the executive branch on November 1, 2007 following the Appellate Division's directives in a case known as "Masdar Hossain's Case". But the government has done nothing since then.

Some laws were amended and new rules were made by the past caretaker government--led by Fakhruddin Ahmed to separate the judiciary. It was not possible for the caretaker regime then to amend the constitution as there was no parliament.

Asked, Law, Justice and Parliamentary Affairs Minister Anisul Huq has said the Awami League-led government will do everything needed for the independence of the judiciary.

"We have already restored the provisions of the constitution of 1972 through the 15th amendment of the constitution to ensure independence of the judiciary. The remaining work has been done by the 16th amendment of the constitution," the law minister claimed while talking to The Daily Star on Thursday.

The law minister was responding to a question about the government's steps to restore the articles 115 and 116 of the constitution of 1972 for an effective separation of judiciary. 

The Awami League-led government has amended the constitution twice-- 2011 and 2014. But the amendments have not restored the SC's authority over the lower judiciary.

The original article 116 of the 1972 constitution had given the SC power over the lower judiciary. The SC had the power to control postings, promotions and grant of leave. It could also discipline persons employed in the judicial service, and it had control over the magistrates' exercising judicial functions.

But the fourth amendment changed all that. The amendment gave the power of control over the lower judiciary to the president, in effect allowing the executive branch to control the lower judiciary.

The fourth amendment also curtailed the SC's power regarding appointments to the lower judiciary.

Article 115 of the 1972 constitution specified that district judges would be appointed by the president on the SC's recommendation.

All other civil judges and magistrates exercising judicial functions were supposed to be appointed by the president in accordance with the rules made by himself or herself in consultation with the Public Service Commission and the SC, according to the original article 115.

But the fourth amendment gave the power to the president to make all appointments in accordance with rules made by the president.

The martial law regime led by General Ziaur Rahman in 1978 did not bring any change in article 115. It had however amended article 116 through a martial law regulation, making the provision that the SC would be consulted by the President to exercise the power to control and discipline the lower courts.

The changes were ratified by the fifth amendment passed in 1979. The changes ceased to have effect with the nullification of the fifth amendment by the SC.

The AL-led government has however revived the amendments introduced by Gen Zia in the constitution through the 15th amendment in 2011, without restoring the original article 116. The government also did not do anything about it when it again amended the constitution in 2014.

It now follows a model introduced by military ruler General Ziaur Rahman in the constitution to exercise control over the lower judiciary.

In Masdar Hossain's Case, the apex court has spoken for the need for amending the constitution for effective and meaningful separation of judiciary. 

The Appellate Division of the SC, in its full judgment in the constitution's fifth amendment case released in July 2010, stressed the need for restoration of the provisions for a meaningful separation of the judiciary from the executive.

"It is our earnest hope that articles 115 and 116 of the constitution will be restored to their original position by the parliament [by amending the constitution] as soon as possible," said the apex court.

Independence of the judiciary, which is one of the basic features of the constitution, will not be fully achieved unless the articles are restored to their original position, the court stated.

"It may be noted here that among the twelve directions given in Masdar Hossain's case one was to the effect that parliament will in its wisdom take necessary steps regarding this aspect of independence of judiciary," it stated.

In the ruling, the court also cited observations made by Justice Abdul Matin, who said, until and unless articles 115 and 116 of the constitution are restored to their original state, separation of the judiciary will remain a distant cry, and music of a distant drum.