Judiciary in question

In the recent past, the conduct of the higher judiciary, not to speak of the subordinate judiciary, has increasingly been questioned in matters relating to selection and promotion of judges and deviant behaviour of judges. Worse still, its conduct has been questioned in the matter of granting bail to criminals convicted to life imprisonment. The higher judiciary is no longer looked upon as a citadel of fairness, equity, and justice. The long term implications of such a public perception are indeed grave and serious. It will no doubt have a highly deleterious effect on the growth of a society.

Government perturbed
The four party alliance government has been criticised time and again for its attempts to politicise the judiciary, in particular, the higher judiciary. The recent appointment of 19 additional judges to the High Court invited strong criticism in the media. The institutional reaction against the alleged unfair selection of persons for elevation to the bench came from the Supreme Court Bar Association (SCBA). It started boycotting the court of the chief justice . A litigation has followed.

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The aberrant behaviour of one of the judges is said to have caused concern to the government. A two-member division bench of the High Court has granted bail to an accused sentenced to suffer life imprisonment. The concern of the government is reflected in the fact that the Prime Minister's Office (PMO) summoned the attorney general and was asked to file an appeal against the verdict. This is definitely a good step per se. However, it also shows that even the attorney general's office does not or cannot move on its own and on the merits of a case.

Reaction from the media and the bar
It has been reported in the press that one of the judges who granted bail to a convicted criminal used to be his defence lawyer. The senior lawyers have expressed the view that in principle no judge can agree to hear a case in which he was a lawyer. The possibility of immoral benefit cannot be ruled out in such cases. The president of SCBA told the daily Prothom Alo that this cannot be done as a matter of principle because it is likely to be biased. Another senior lawyer echoed the same view, with the qualification that this could be due to lack of experience or loss of memory.

What does CrPc say
The code of criminal procedure (CrPc) expressly prohibits any judge or magistrate from trying a case in which he is a party or personally interested. It is also laid down that no judge or magistrate shall hear an appeal from any judgment or order passed or made by himself. This principle is embedded in the dictum that no person can be a judge in own case. It is one of the oldest and plainest rules of justice and of commonsense, that no man shall sit as a judge on a case in which he has a substantial interest. There is case law on the issue which says that no judge can act in any matter in which he has a pecuniary interest, nor where he has an interest, through not a pecuniary one, sufficient to create a real bias.

Some of the case laws have defined the phrase "interested." This does not imply mere intellectual interest, but something of the nature of an expectation of an advantage to be gained or of a loss or some disadvantage to be avoided. The cardinal principle laid down by the case law is that the objective should be to avoid anything which might engender suspicion and distrust of the court. This is necessary to promote the feeling of confidence in the administration of justice which is so essential to social order and security. The aberrant conduct of the judge should be seen in light of the above. It is not just a question of moral principle. It is also a question of responsible behaviour conducive to preserve, protect, and enhance the image and authority of the highest court of law.

Judges feel embarrassed
Indeed in many cases in the past, judges declined to hear a particular case saying that they felt embarrassed. Expression of such embarrassment is appropriate for the type of cases mentioned earlier. However, in a recent case of bail of accused persons in case of murder, a judge felt embarrassed because he was a defence lawyer of one of the accused. This is a good example worthy of emulation by the brotherhood by the judges. Judges, by tradition, do not generally specify whey they feel embarrassed to deal with a particular case. It is felt that if the

cause or causes of embarrassment are specified, and are publicly known the citizens will have a better appreciation of such decision. Otherwise, many questions remain unanswered. During the mid-nineties, such questions were reported to have been raised in a number of cases of public importance. In this context, many citizens privately mention the fact that judges from the higher judiciary often give speeches in seminars and workshops. In these seminars and workshops, they refer to two fundamental principles in the dispensation of justice. First, justice delayed is justice denied. Second, justice should not only be done, but it must also be seen to have been done. None will disagree with such principles. But the question is one of putting the principles into practice.

Shakespearian dictum
The first of the aforesaid principles in fact goes back in history. In one of Shakespeare's dramas, there is a reference to law's delay. By implication, Shakespeare probably wanted to convey the message that law's delay is antithetical to any motion of fairness in the dispensation of justice. Judges and indeed all agree that this is a salutary principle, which, however, is not put into practice. It would be unfair to blame the judges alone for this state of affairs. The ballgame of justice has other players also. There are two key players. First, the lawyers, some of whom are fond of getting adjournments. Second, the prosecuting branch, mainly the police. If the police fail to ensure the presence of witnesses, there is very little that the judges can do.

The other principle that justice should not only be done, but must be seen to have been done, is equally important to protect the image and authority of the judiciary. In the particular case of bail of convicted criminal, this principle appears to have been departed from. Hence the questions raised in the media and indeed among all law-abiding citizens of Bangladesh.

Deferring pronouncement of verdicts
The date for pronouncement of the verdict in the jail-killing case was fixed for September 7. After all preparations were completed including strict security measures, the date was shifted to September 21. The judge was reportedly sick due to, as reported in the press, high blood pressure. This has led to many speculations in the media. The reactions of at least two well-known senior lawyers indicate that this could be avoided. One of the lawyers said that nothing should be done which tends to create misgivings in the public mind about fair dispensation of justice. The other lawyer said that the kind of sickness he had heard was not a good enough justification not to pronounce judgment as was earlier fixed.

As if to add fuel to the fire, another report of similar nature appeared in the press. In this case, the presiding judge who scheduled pronouncement of judgment on August 5, deferred the date to October 7. This was reportedly the third such postponement in a row. The case in question is the graft case against a former president who is also the chairman of Jatiyo Party. Lot of questions have been raised and published in the press. One of these relates to the alleged attempt by those interested to prevent the accessed from joining the united movement organised by all opposition parties against the government.

What the Greek philosopher said
A Greek philosopher is reported to have said 4000 years ago that "Ignorant judges are calamitious for the people." Bangladesh is well known to be a country of natural calamities. What it is also experiencing now are calamities caused by established institutions of the state maintained at cost to tax payers. If the natural and man-made calamities converge and are allowed to perpetuate, it will not simply be a question of government failure, but of failure of the state, culminating in a stateless society. The remedy lies not just simply in the change of government, but in a realisation in all the branches of the state that it is the state owned by the people that matters, and not power. The powers that are held in trust on behalf of the people should and must be exercised in public interest and for maximising public weal.

AMM Shawkat Ali, PhD, is a former Secretary, Ministry of Agriculture.