Rethinking limits of executive authority

The need for rethinking
The aforesaid scheme of things leaves no room for the President to act judiciously even in matters which are quasi-judicial in nature. Examples include decisions relating to disciplinary cases involving civil servants. The other example pertains to decisions on the inquiry proceedings involving the conduct of a Judge of the Supreme Court. These are also quasi-judicial in nature. The third example relates to the appointment of Judges in both the divisions of the Supreme Court. This tends to impair the independence of the judiciary

The implications
The implications are nowhere more apparent than in case of the judiciary. The most recent example is the long delay in presidential decision on the findings of the Supreme Judicial Council against alleged misconduct of a Judge of the High Court Division. It is said that the executive organ of the State has been dragging its feet to provide Prime Ministerial advice to the President. The case is said to be pending for 47 days (The Independent 14, 2004). The Law, Justice and Parliamentary Affairs Minister has been quoted as saying that the government is yet to come to a decision on the issue. One may well raise a question whether it is a matter of decision on the part of the government or suggesting a course of action for the President. It is recognised that the dividing line between 'decision' and suggesting a course of action is thin. This need not prevent one from saying that making suggestive action is not very difficult that it should take as many as 47 days.

This is because the case, much publicised in the media, pertains to alleged misconduct of a Judge. Both the head of the government and the head of the state are duty bound to preserve, protect and defend the image and authority of the Judiciary in order that the confidence of the citizens is not shaken. The rather inordinate delay has evoked strong criticism from the president of the Supreme Court Bar Association. He has been quoted as saying that 'the government was also politicising the issue in order to influence the forthcoming elections of the Supreme Court Bar Association'. It was reported that earlier, the Minister for Law, Justice and Parliamentary Affairs had said that the government would act in accordance with the recommendations of the Supreme Judicial Council. Why then is the delay?

Example from India
The Transparency International India (TII) held a conference on delays and corruption in the Indian Judicial system on December 18 and 19 of 1999. One of the findings of the conference was that 'Delays breed corruption and if delays are eliminated, corruption can be avoided'. Although the finding is in a different context, it does have relevance to the present case. Another important finding is that the procedure for disciplining of Judges is too complicated and gets politicised with the result that it is becoming impossible to discipline errant Judges even in obvious cases of corruption and misdemeanor.

In Bangladesh context, much of the delays can be avoided if the existing constitutional requirement is suitably amended to allow the Chief Justice to send such findings direct to the President and the President is also authorised to decide the case independent of the advice of the Prime Minister.

Selection, appointment and transfer of Judges: The TII conference referred to above has also identified an area of major concern for efficient and impartial functioning of the Judiciary. The concern relates to the interference from politicians and bureaucracy in the selection, appointment and transfer of Judges, and the creeping in of extraneous considerations other than merit.

Comparative view: India and Bangladesh: It is necessary to have a comparative view of India and Bangladesh in so far as it relates to selection and appointment of Judges in the Supreme Court and the High Courts in India and both the divisions of the Supreme Court in Bangladesh. Until 1981, the practice in India was, for the Chief Justice of India to initiate proposals, generally in consultation with some of his senior colleagues. Following two verdicts of the Supreme Court of India [AIR, 1982 SC 149 and 1998 (7) SSC 739], the power of appointment passed into the hands of the Judiciary and the role of the Executive became merely formal.

Seniority not to be ignored: In case of appointment to the post of Chief Justice of India, seniority has to be followed and cannot be ignored. Both the case laws referred to earlier reaffirmed the principle of strict observance of seniority in the matter of selection and appointment to the post of Chief Justice of India. This principle is not departed from by the Executive.

Bangladesh case
The Constitution of 1972, prior to any amendment, envisaged in article 98 that the Judges shall be appointed by the President 'after consultation with the Chief Justice'. This requirement was deleted under the fourth amendment of the Constitution in 1975 (Act II of 1975). The tenth amendment of the Constitution effected through the Second Proclamation Order in 1977, replaced chapter I relating to the Supreme Court. This is the present position under article 95: the President appoints the Chief Justice and other Judges. This has provided scope for extraneous considerations in the matter of selection and appointment of Judges in both the divisions of the Supreme Court. In practice consultation with the Chief Justice does take place. It is another matter if the views of the Chief Justice is accepted or not. Available evidence indicates that there had been departure from what the Chief Justice had recommended and what ultimate decision of the President was. This raises the issue of the difference, between 'concurrence' and 'consultation'.

The element of incongruity
The requirement of consultation with the Chief Justice in matters relating to posting, promotion and discipline has been made mandatory under article 116 of the Constitution in cases relating to the control of subordinate judiciary. It can be argued that you cannot have islands of consultation that divide the subordinate judiciary from the higher judiciary. Integrity in decision-making is needed as much for the subordinate judiciary as for the higher judiciary. A related issue is the place of posting of members of subordinate judiciary, in particular, the district and sessions judges.

The Supreme Court because of its monitoring functions and also by virtue of being the final authority to assess the quality of judges in the subordinate judiciary, is in a much better position to decide this without any let or hindrance. The citizens have no information at all with regard to arbitrary selection of places of posting by the Executive. Worse still, in such cases, the selection of places of posting may be influenced by extraneous considerations. The way out perhaps is to amend article 116 and vest complete authority in the Supreme Court or to establish a healthy convention of accepting the recommendations of the Chief Justice as mandatory. A third option would be to establish some sort of independent advisory committee whose decision in this regard will be final.

Conclusion
The High Court division is said to have issued a rule upon the government, the BNP-led four-party alliance and the Awami League to show cause why the fourth and the fifth amendment to the Constitution pertaining to the Judiciary should not be declared ultravires and void (The Daily Star, March 15, 2004). The court also asked them to explain why the original provisions of the Constitution adopted in 1972 should not be restored. At this point of time, one can only hope that these contentious issues, in particular those relating to setting limits to the authority of the Executive in so far as it relates to the Judiciary, will be settled once and for all as has been the case in India. At the end, it is relevant, in this context, to refer to the observations of Sir Henry Gibbs, the Chief Justice of Australia (1987): "Judicial commissions, advisory committees and procedures for consultation will all be useless unless there exists, among the politicians of all parties, a realisation that the interest of the community requires that neither political nor personal patronage nor a desire to placate any section of a society, should play any part in making judicial appointments." Will this fall on deaf ears of those in Bangladesh for whom it is meant?

A M M Shawkat Ali, PhD is former Secretary, Ministry of Agriculture.