Judiciary faces erosion of credibility

Recalling our poignant history during the cataclysmic year of 1970, the year when Bangalees revolted against the Pakistani occupation forces, we still remember with pride that the then Chief Justice of East Pakistan, Justice B.A. Siddiqui, refused to administer oath to Lt. Gen Tikka Khan, who was appointed Governor by President Yahya Khan, replacing the senior-most Bengalee naval commander in the then Pakistan Navy. Even in our neighboring country, India, instances of the judiciary taking on the executive are galore. In 1975, a high court judge nullified the then prime minister's election to the Lok Sabha on the grounds of campaign irregularities.

Painfully true, our country seemed to have different laws for different people, and that's why the judiciary was compelled to step in, where our leaders feared to tread. Undeniably true, people in the country these days are completely disappointed with the executive and legislature. The only solace is that, the delays and expenses notwithstanding, the judiciary continues to be vibrant and energetic, something reflected in recent Supreme Court decisions involving the EC's defiance of a High Court ruling regarding updating of the voter list. In such a context there is no dispute over this: the judiciary continues to be an institution of "Last Hope" in the country. To a great extent it is an honorably acquired reputation, for justice does not often reach out from the ruler to the ruled here.

Now some recent incidents relating to interference by the chief justice of the apex court of the country have raised a fundamental question: does this formidable reputation, even if it is constitutionally guaranteed, make the judiciary -- and the judges -- above the domain of public criticism?

Sadly, the Chief Justice of the Supreme Court, in an unusual display of constitutional power, stopped the proceedings of a high court bench, on November 30, involving three writ petitions challenging the legality of the president's taking over as chief adviser. The chief justice's ruling came minutes before the High Court bench was to issue a rule. Shocked by the order, lawyers and others present in the court burst into anger and vandalized different sections of the Supreme Court, and set fire to the vehicle of the state minister for law in the past cabinet.

While the vandalism that happened in the country's highest court premises must be condemned in unequivocal terms, and the perpetrators of such a dastardly act must be identified and brought to book. It must also be seen that some honorable judges do not shy away from their sacred duties, however difficult may be the situation they are confronted with. Newspaper reports suggested, supported by video footage that the ransacking of court documents and property was not carried out by people donning robes. Rather some interested groups having a stake in the mayhem stormed into the High Court premises when pandemonium prevailed inside the courtroom.

While reflecting on the incident legal luminaries in the country, as well as the people, opine that such a stance by any judge, or judges, in the country's apex court would be a patently unconstitutional move. It would be an impediment to the right of a citizen to approach the Supreme Court for the enforcement of fundamental rights, or redress of grievances or injustice done to an individual or a collective body by any state organ. To curb such rights would be atrocious. Where will people seek remedy if the doors of either the High Court or the Supreme Court are closed for them?

Reacting to the CJB's issuing of the stay order involving the three writs, former Chief justice Mustafa Kamal said that in his career of 40 years, both as lawyer and judge, he had never seen a chief justice exercising his authority in the way the present chief justice had on November 30. Eminent lawyer Dr. Zahir, presumably having no political color and affiliation, expressed the same opinion that never before in his 40 year legal career had he seen any C.J issuing a stay order before the bench had even admitted a petition.

Since the inception of Bangladesh, an activist apex court was the formidable moving spirit behind any rights movement, either civil or PIL cases. Moreover, in advanced countries like the U.S and U.K, a good, or bad, judgment becomes the subject of constant debate among academicians, legal experts, research institutes and law schools. In the absence of any such institution here, the role of the country's apex court is ultimately that of a moral teacher. The only real checks are public opinion and the press.

These are most critical times for the country. As the president, heading the caretaker government, rides roughshod over the opinion of the advisers, and even backtracks on the resolutions or package formula adopted by the council of advisers, like EC restructuring in a bid to create a level playing field for all the parties, the stay order in the court proceedings relating to three writs added further tension to the already unstable situation. To say the least, with the resignation of four advisers the situation, or rather the atmosphere, for holding a free, fair and credible election has been further complicated.

Recalling an Indian situation that revealed a tussle between the president and the judiciary and the way judiciary in that country stood firm, defying even the president's prerogative, we can hardly take comfort in the present Bangladesh situation. Indian President K.R.Narayanan, in 1999, formally suggested that the Chief Justice of India should give due consideration to the scheduled castes and weaker sections of the society in higher judicial appointments. More importantly, he declared that eligible persons from these categories are available.

It was true that scheduled castes were underrepresented in the judiciary in India but interference by the president was unprecedented and appeared to be constitutionally untenable. It was argued in legal circles in that country that the president, at worst, had committed an impropriety. Undeniably true, the president is the supreme constitutional authority but his statement seemed to defy all rational explanation, and it was not given effect to by the highest judiciary.

Coming back to the Bangladesh context, every appointment and action at the highest level in the country is made at the president's pleasure. But the president's pleasure should not end up being the Republic's pain. While taking a look at the sorry state of affairs in public life, the apathy of the highly placed towards constitutional norms is in direct contrast to the state affairs in the earlier days. One could see that in the past days the court had always grown stronger in keeping with the need of the times, and the need was to enforce executive accountability.

An activist judiciary became the voice of the citizens, invigorating public interest litigation and even taking on the government. We observed to our great satisfaction that whenever there was a crisis in the form of a failure of some agency, the people of the country raised the issue in such a manner that somebody with the capacity and the will to find a solution was available. This is because of the people's innate moral strength and their firm belief in the rule of law.

The three writ petitions in question arose due to the extra-ordinary situation relating to constitutional propriety and exercise of state power, and really called for an extra-ordinary remedy. It would have reinforced the people's trust in the Supreme Court as the last resort. And in dealing with such sensitive cases self-restraint is the only healthy check. Any external interference or check, as it happened in the present case, will prove to be detrimental, not only to the independence of the judiciary but also to the constitutional scheme. The remedy would be worse than the disease if others were allowed to exercise any control over judges. The judges, therefore, have to be sensitized to the need for self-restraint. People would have felt relieved if they had followed the famous line of Shakespeare: "It is excellent to have a giant's strength, but it is tyrannous to use it like a giant."

Recent experiences suggest that with the increase in judicial activism, there has been a corresponding increase in the need for judicial accountability, especially in the apex court of the country. The apprehension gaining momentum these days is whether all the judges in the higher judiciary satisfy the required standards of conduct. They are the ones laying down the rules of behavior for everyone else, and they have to show that the standard of their behavior is at least as high as the highest by which they judge the others.

Despite all that can be said to raise the judiciary to the extent that it fulfills the aspirations of the people, the best cannot be expected unless the flaws in the appointment of judges are removed. Recalling the Indian situation, ever since the supremacy of the executive in the selection of judges was removed in 1993, the judiciary has acquired greater responsibility to ensure the right appointments, or in dispensation of justice to the aggrieved.

Let our judges in the highest judiciary now follow the adage: "Be you ever so high, the law is above you."

Md Asadullah Khan is a former teacher of physics and Controller of Examinations, Buet.