Independence is a must
THERE is no better test of excellence of a government than the efficiency of the judicial system. In determining a nation's rank in political civilisation, no test is more decisive than the achievements of the judicial administration.
In most democratic countries, the judiciary is independent of the other organs of the government. This independence protects the impartial judiciary from the interventions of the political government and the influence of individuals.
A democratic environment promotes fair play in dispensing justice with strong support of the civil society organisations, human right activists and intellectuals advocating for social capital development, and helps form a rights-based value system so that the judiciary can establish rule of law in the country.
An independent and strong judiciary can ensure rule of law in a society and build a nation where justice prevails. The fact that none is above law can be established if the members of the executive and of the legislative councils respect the judiciary as an important organ of governance. Indira Gandhi appeared before the court as accused to justify her legal standing in the charges brought against her.
Similarly, Mr. Bill Clinton did not hesitate to appear for testimony in the Monika episode. In both the cases, they returned to power because of their courage and their respect for the judicial system.
Considering these realities, the framers of the Constitution of Bangladesh inserted Article 22, which reads: "The state shall ensure the separation of the judiciary from the executive organs of the state." Thus, the separation of the judiciary from the executive became a reality on November I, 2007, in compliance with the provision of the Constitution.
It may be recalled that Masder Hossain, along with 441 judicial officers who were judges in different civil courts, filed Writ Petition No 2424 in 1995. The petitioners alleged inter-alia the inclusion of the judicial service in the BCS (Judicial) under the Bangladesh Civil Services (Re-organisation) Order, as being ultra-vires of the Constitution.
The matter came up for hearing on June 13, 1996, but could not be heard before April 1, 1997. After a long hearing, with valuable comments and citations by Dr. Kamal Hussain, Syed Istiaq Ahmed and Mr. Amir-Ul Islam, the court delivered its judgment on May 7, 1997. The government preferred an appeal by leave and the Appellate Division partly reversed the decision of the High Courts judgment delivered on December 2, 1999.
The Appellate Division directed the government to implement its 12 points directives, including the formation of a separate Judicial Service Commission and a Judicial Service Pay Commission to separate the judiciary from the control of the executive. Thus, the provision of separation of judiciary became a reality. Finally, the historic separation of the judiciary from the executive took place on November I, 2007.
The idea of the independence of judiciary was first developed by Montesquieu, a sixteenth century French philosopher. In his famous articulation, "Theory of Separation of Power," he postulated the division of political power among three organs of the state, i.e. executive, legislature and judiciary.
Despite certain criticisms, Montesquieu's theory of separation of power is taken for granted nowadays, and is implemented in many countries throughout world. It is one of the fundamental principles of the state and also the core of the Constitution of Bangladesh.
The common expectation of a citizen of Bangladesh is to see the rule of law established in the country, and the poor, distressed and deprived getting fair justice from the court and the society. Magistrates hear the accused within 24 hours of police arrest and make a judgment. For building a nation with a sense of values, and establishing an environment of respect for human rights and dignity of labour, the contributions of magistrates could be significant. In any case, justice should not be delayed or denied.
A strong judiciary is the hope of the hopeless and voice of the voiceless in the society. Thus, an independent judiciary must be secured by appointing judges with impeccable character, high integrity and honesty. An effective judiciary comprised of members with wisdom and noble vision is capable of establishing rule of law and ensuring the rights of the people.
The Bangladesh judiciary has a good reputation because of its commendable people- oriented performance. Justice B. A. Siddiqui refused to administer the oath to a military ruler in 1970, and Justice S.M. Morshed was a legendary example of prudent and courageous judiciary.
Judicial magistrates staged a protest at the Bangladesh Secretariat on July 27, expressing their resentment against the modification of allocation of business by restructuring of the Ministry of Law, Justice and Parliamentary Affairs. The demonstration by the judges had been highlighted in the media because it was a rare phenomenon. The ministry has, however, settled the matter honourably. The expectation of the people is that judges shall uphold the image of the judiciary, as in the past, and nothing will occur to tarnish their image in future.
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