Separation of judiciary: Half-full or half-empty

It is said that the present government constituted a cabinet committee to devise ways and means to implement the directives of SC. No one knows how many sittings did the committee have and the modalities that it had suggested to implement the directives.

The media has, however, reported from time to time, about the way the government had sought extension of time from the SC. The law minister has often been quoted as saying that such separation is fraught with practical difficulties. He is also said to have pointed out to the press that in other countries of the South Asia, it has taken years to complete the process of separation. Apart from amendments relating to the administration of criminal justice, non-departmental supervision of police in the prevention and detection of crime and in maintenance of law and order, the magistracy of the executive domain is in theory, responsible for trial of offenders of crimes to a limited extent.

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Being under the control of the executive, the widespread public perception, in particular during recent times, cast doubt on the impartiality and fairness of decision given by the magistrates. None, however, cared to study the rate of reversal of such decisions in appeal, the appellate authority being the district and additional district judges. Much of the above perception relates to granting of bails or their refusal, easy grant of remand to police custody and exercise of power of detention.

There is still public perception that the remote control over subordinate courts by the executive will continue unless complete administrative control is constitutionally, legally and operationally transferred to the SC.

To top it all, the conduct of some of the judges in the higher judiciary has been questioned in recent times. The deviant conduct of an additional judge has culminated in the termination of his appointment. Presently, litigation is going on in the High Court over the alleged tampering of mark sheets of LLB examinations. The last but not the least is the raging controversy on the recent appointments of 19 additional judges of the High Court.

New judicial service

An English daily headlined the forming of new judicial service (The Independent, November 11, 2004). It said that the government had bowed to the SC's directive to separate the judiciary from the executive on November 10, 2004. A gazette notification is to have been issued in this regard to form a new judicial service to be known as Bangladesh Judicial Service (BJS). Under this decision, 800 judicial officers from the district to assistant judges have been transferred to BJS. In what way, is BJS a new service?

All that has happened at this stage is the change of name from Bangladesh Civil Service (Judicial) to BJS. All 800 personnel who have been transferred earlier belonged to the Bangladesh Civil Service (Judicial). However, in deference to the directives of SC, the government had earlier formed the judicial service commission (JSC) led by a judge. This means that all matters relating to the recruitment to BJS have now been vested in the JSC and not the public service commission (PSC) which is a constitutional body. This is the new element that seeks to guarantee fair and transparent recruitment to BJS. What about quality?

Practical difficulties

The practical difficulties of the government relate to a host of other issues connected with the administration of criminal justice. The major offences and their punishment are prescribed in the Bangladesh Penal Code (BPC) which is also a relic of the colonial past as much as the magistracy. The powers, functions and procedure for criminal offences are prescribed in the Code of Criminal Procedure (CrPC), and this is also a relic of the colonial past. However much one may denigrate these two statutes, in the view of many experts, these statues have stood the test of time. The point that is relevant here is the need to make the glass of separation of executive from the judiciary full rather than keep it half full and half empty.

It is felt that the first step in this direction is to amend CrPC in a manner consistent with the letter and spirit of the SC directives. It is said that in India, the separation of judiciary from the executive was effected in 1974 by amending CrPC. It thus took 27 years to effect the separation. Bangladesh took nearly 32 years if the two directives of SC already implemented are seen as complete separation. The CrPC in India, after the amendment in 1974, provides for two classes of magistrates such as judicial magistrates and executive magistrates. It is believed that the former come under the domain of the respective High Courts. The latter under the executive.

There are a host of special laws dealing with petty crimes. Such offences generally lie within the jurisdiction of the magistrates. Again, under CrPC, there are specific areas of functions which are not strictly judicial in nature. The holding of inquest for persons who die while in police custody is a case in point. Recording of confession of an accused may be still another. The list of judicial functions as envisaged in different special laws such as those relating to public health also fall in this category. It is not known how the government is going to deal with such matters. It is not yet clear if all such functions including preventive actions will fall in the domain of the members of BJS. It is felt that besides addressing such and other related issues, lot of fine tuning will be needed during the period of transition from half separation to complete separation of the judiciary from the executive.

Constitutional reforms

The constitutional reforms relate to the questions of complete administrative control by SC over BJS as a service. There are two key issues. First, appointment to subordinate courts. Second, control and discipline of subordinate courts. The first appears to have been resolved with the constitution of JSC and rules in this regard have been framed. What about the control and discipline of subordinate courts?

The constitution requires that the control, including the power of posting, promotion and grant of leave of persons employed in judicial service and magistrates exercising judicial functions shall vest in the president and shall be exercised by him in consultation with the SC. The provision relating to this control mechanism was amended twice. First, in 1975. Second, in 1978. In 1975, under the short-lived one-party rule, unfettered authority was given to the president in this regard. In 1978, minor modification requiring consultation with the SC was introduced. There is a need to revisit the provision of 1972 constitution prior to such amendments.

In the view of many, what needs to be done is to look at all relevant amendments of the constitutional chapter on judiciary covering both SC and the subordinate courts. Since there is no independent body to examine the issue and suggest the needed reforms, the tasks can be allotted to the Law Commission and the recommended measures should go through the process of public debate. This is necessary because of the questions often raised about presidential authority on the ground that President cannot but act on the recommendations of the Prime Minster (PM) except for (a) appointment of PM and (b) of the chief justice (CJ). Besides, but for one or two exceptional cases, President is always from the majority party.

As things stand now, the glass of separation of the judiciary from the executive remains half full according to optimists and half empty according to others. Between the two views lie a host of other pertinent issues that need serious attention.

The Daily Star (November 12, 2004) has drawn attention to the above issues. It is understood that the law ministry is working out detailed legal instruments to make the glass full. The real test, however, will lie in the age-old maxim "Justice should not only be done but it must appear to have been done".

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