Responsibility without authority

The court pronounced the order upon a contempt petition from Chowdhury Munir Uddin Mahfuz, a judge on the tribunal for prevention of women and children repression in Kishoreganj and also one of the petitioners of the writ petition that prompted the Appellate Division to issue the 12-point direction on the separation of the judiciary on December 2, 1999. The directions are as follows:

1. Judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is functionally and structurally distinct and separate service from the executive and administrative services of the Republic.

2. The word "appointment" in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and a magistracy exercising judicial functions, makes rules etc; Article 115 does not contain any rule-making authority with regard to other terms and conditions of service; Article 133, 136 of the Constitution and Services (Reorganisation and Conditions) Act, 1975 have no application in respect of the judicial functions.

3. Creation of BCS (Judicial) cadre along with other BCS executive and administrative cadres by Bangladesh Civil Service (Reorganisation) Order, 1980 with amendment of 1986 is ultra vires to the Constitution. Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service.

4. (i) Government is directed to take necessary steps forthwith for the President to make Rules under Article 115 to implement its provisions. (ii) Nomenclature of the judicial service shall be designated as the judicial Service of Bangladesh. (iii) Either by legislation or rules or order a Judicial Service Commission is to be established forthwith with the majority of members from the Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service.

5. Under Article 133 law or rules relating to posting, promotion, grant of leave, discipline, pay, allowance and other terms and conditions of service consistent with Article 116 and 116A shall be enacted separately for the judicial service.

6. Government is directed to establish a separate Judicial Pay Commission forthwith as part of the Rules to be framed under Article 115.

7. In increasing control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the executive.

8. The conditions of judicial independence in Article 116A namely, (i) security of tenure (ii) security of salary and other benefits and pension and (iii) constitutional independence from the parliament and the executive shall be secured in the law or Rules made under Article 113 or in the executive orders having the force of Rules.

9. The executive government shall not require the Supreme to seek their approval to incur any expenditure on any items from the fund allocated to the Supreme Court.

10. The members of the judicial service are within the jurisdiction of the administrative tribunal.

11. Amendment of the Constitution for separation of judiciary from the executive may be made by the parliament.

12. Until the Judicial Pay Commission gives its first recommendation the salary of judges in the judicial service will continue to be governed by status quo ante.

It appears that the above 12 points in the operative part of the judgement are not all directions in true sense of the term. Of these 12, points 5 are in the nature of directions and 7 are in the nature of declaration. Points 4,5,6,8 and 9 are in the nature of directions.

The successive governments had taken 22 time extension for implementation of the court directions

The Supreme Court took up the contempt petition for hearing in February this year after it was kept pending for about two years and rejected the government's plea for further extension of time for implementing the court's directions.

Having said all these, let us now see what authority the secretaries concerned have to decide implementation of the aforesaid directions of the Supreme Court.

Executive is one of the three basic pillars of the state, the other two being judiciary and legislature. The executive is composed of the President, the Prime Minister and the Cabinet comprising such Ministers as the Prime Minister may from time to time designate. The executive determines the policies of the government and supervises the execution of the policies and the enforcement of the laws. The executive has to act in aid of the Supreme Court. The public officers, including the secretaries to the government aid the executive in the implementation and execution of the decisions and directions of the executive.

Rules of Business (ROB) constitute the procedures of transaction of business of the government and allocation of functions among different ministries/divisions. The ROB, 1996 made by the President pursuant to Article 55(6) of the Constitution replacing the ROB, 1975 have assigned all powers to the minister-in-charge of a ministry/division and deprived the secretary of a ministry/division of the power he enjoyed under the previous ROB. Under the defunct ROB, 1975 the minister-in-charge of a ministry/division was responsible for policy matters concerning his ministry and for implementation thereof. He was also responsible for conducting the business of his ministry/division in parliament. But the existing ROB provides that all business allocated to a ministry/division under Schedule 1 of the ROB, shall have to be disposed of by, or under the general or special directions of the minister-in-charge. The Secretary of a ministry has thus no authority to dispose of any case without the approval of his Minister. It may not be an exaggeration to say that under the ROB, 1996 the secretary of a ministry/division has merely become a staff officer to his Minister.

A closer look into the five directions (4,5,6,8 and 9) above shows that decision for their implementation had to be taken at Cabinet headed by the Prime Minister or at the levels of the Prime Minister and the President. The role of the Secretaries concerned was to prepare relevant papers as per guidelines suggested by the political bosses and put up for their consideration and issue Rules, Orders, etc upon their approval.

Questions have been raised as to why the ministers concerned, as executives of their ministries, should not be held responsible for non-compliance with the court's directions and made defendants in the case. Mizanur Rahman Khan has written in Prothom Alo (April 4) that in developed countries practicing parliamentary democracy, courts issue rules upon the ministers concerned for non-implementation of policy decisions. There are instances that in Britain, the birthplace of parliamentary democracy, a few ministers had to suffer for contempt charge.

In its editorial on April 5, The Daily Star wrote: "Those defying or ignoring the directives must be made to face the wrath of law. However, a pertinent question that arises from all these is, did the officials act of their own accord or they were dictated to by the political higher-ups."

To conclude, it is our expectation that the highest court of the land will take into consideration all the facts and circumstances and not punish those who have no authority to order implementation of its directions. In other words, those having authority who procrastinated implementation of the directions of the highest court should not escape "the wrath of law."

M. Abdul Latif Mondal is a former Secretary to the Government.