Upholding the majesty of judiciary and all that

In any civilised democratic society it is only natural that people will turn and look towards the judiciary for conflict resolution, whether civil or criminal. In fact people wait for the judiciary to provide relief and succor when other avenues of grievance redressal have been exhausted. One has to recognise that the legitimacy of the law is based on the democratic process. In our situation as elsewhere, the Courts have been held to be the guardians of the constitution. They are required to ensure its observance by all the other functionaries and organs of the State.

The judiciary has to acquire a central position in our situation because it is looked upon to declare, reiterate, enforce and compel implementation of the recognised norms of good governance and social progress.

The Superior Judiciary of Bangladesh has risen to the occasion at the critical juncture of our history. The invalidation of the Constitution (Eighth Amendment) Act 1988 insofar as it relates to the creation of permanent benches of the High Court Division by the Appellate Division of the Supreme Court is an example. Another example is the Supreme Court's refusal to suspend the execution of a High Court judgment invalidating a government notification which empowered ministers and others with charge of different districts to take care of development work and law and order in their respective areas. In both these judgments, the judiciary showed its competence and importance as final arbiter of legal questions and protector of the rule of law.

Some political thinkers are of the considered view that our constitutional provisions of having a caretaker government to oversee the conduction and management of national election sadly betray the lack of nation's trust in the credibility and integrity of the political class. Whatever be the interpretation, one has to admit that it was the legislator's wisdom forced by people's power that brought into being the caretaker concept. The legislators who enjoy being executive soon after getting elected had to repose the nation's trust in the supreme judiciary of the country. In such a scenario, it is only proper that we talk reverentially and remain within decency and decorum when taking issue with the judiciary and judicial personalities. We have recognised that judicial intervention results in public trust and confidence.

The top Bar of our country consisting of educated, disciplined and distinguished lawyers, through their competence and contribution can ensure the quality and standard of the judiciary. However, the ground reality is that there is a growing conflict between the bench and the bar, as more and more political and administrative controversies taint their professional duties. We need a change of attitude and resetting of goals.

We have to remember that an effective criminal justice system ensures law and order, generates security and confidence, and releases all other faculties and resources of the individuals to contribute their best to the achievement of national goals and ensure economic prosperity of the nation. All the good things that all human beings aspire for depend on a visibly just, expeditious, and inexpensive system of criminal justice.

The issue of supremacy and separation of the judiciary from the executive
The Supreme Court's authority over other government instrumentalities is enshrined in Article 112 of the Constitution, which states: "All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court". Furthermore, the Supreme Court is undisputedly the final authority in declaring and interpreting the constitution and the laws.

Regarding the separation of the judiciary from the executive, the political, social and institutional considerations should not, after the landmark decision of the Supreme Court, stand in the way of separation, because the judgment has attained constitutional and moral irrevocable finality. Instead, these considerations should be harnessed by all available means to help and advance that goal. In fact, the Bar, civil society and the political parties in the country should relentlessly pursue the issue of separation of the judiciary until the constitutional dignity and efficacy of the Supreme Court's order is fully established.

In order to carry out the decision of the Supreme Court regarding separation of the judiciary from the executive, organisationally speaking, the measures have to be taken on a priority basis are:

(i) Creation and establishment by the President of a distinct, altogether separate, judicial service including a magistracy exercising judicial functions;

(ii) Establishment either by legislation or by framing Rules under Article 115 or by executive order having the force of rules, a Judicial Services Commission composed of majority of members from the senior judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service on merit with the objective of obtaining equality between men and women;

(iii) Promulgation of law or rules or executive orders having the force of rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), pay allowances and pension (as a matter or right not favour), and other terms and conditions of service consistent with Articles 116 and 116A of the judicial service and magistrates exercising judicial functions.

(iv) Establishment of a separate Judicial Pay Commission as a part of the rules to be framed under Article 115 to review the pay, allowances and other privileges of the judicial service which shall convene at stated intervals to keep the process of review a continued one;

(v) Promulgation of law or rules or executive orders having the force of rules to secure the essential conditions of judicial independence, namely, security of tenure, security of salary and other benefits and pension, institutional independence from the parliament and the executive.

Judicial independence is part of the Universal Declaration of Human Rights. Article 10 states that, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and if any criminal charge against him." This is repeated in Article 14 of the International Covenant on Civil and Political Rights as well.

Judicial independence involves freedom from direction, control or interference in the exercise of judicial powers by either the legislative or executive arms of government. It includes the independence of an individual judge as well as that of the judiciary as a branch of government. Individual independence is to be able to decide according to law (decisional independence); and personal independence is by way of merit-based appointment, guarantee of tenure, adequate compensation and security. Both types of independence are intended to allow judges to consider the facts and the law of each case with an open mind and deliver unbiased judgement. When truly independent through increased professionalism, training and experience, judges are not influenced by personal interests, preferences or relationships, the identity or status of parties to the litigation or external economic, political or cultural pressures or considerations.

Judicial independence is indeed the foundation of rule of law as manifested in equality before the law and the superiority of the law. In other words, it is an essential ingredient of the protection of individual liberty and equality. The strength of a judicial system indeed depends on its independence. The independence of our judiciary should be considered a basic feature of our constitution and as such unalterable by Parliament even by constitutional amendment.

Muhammad Nurul Huda is a former Secretary and IGP.