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Make the separation of judiciary work
Judiciary is the last resort for obtaining redress of one's grievances. It must be able to act as an institution without fear or favour. It has to be able to respond independently. This will only be possible if there is separation of the Judiciary from the Executive in the truest sense of the term.
It has taken nearly ten years but this has finally been achieved. On 1 November, a non-political government was able to complete what political governments of the past had promised but failed to deliver. It was a question of political will and the past political masters were unfortunately found wanting.
The basis of the separation of Judiciary is contained in Article 22 (Part II, Fundamental Principles of State Policy) of our Constitution, which states that the State shall ensure separation of the Judiciary from the Executive. The weakness however lies in the fact that Article 22 itself is not judicially enforceable in a court of law according to provisions contained in Article 8 (2) of the Constitution.
Reluctance of successive governments and bureaucratic tangles had been the main hindrances till now to the implementation of such separation. Political governments, due to partisan interests had also procrastinated in the implementation of the required steps. This course of action on their part had been so despite the provisions of Article 112 of the Constitution whereby the government is supposed to act in aid of the Supreme Court.
It would be fitting to record here my appreciation for the Judicial Services officials and the Supreme Court for their persistent efforts that have finally resulted in the eventual separation of the Judiciary from the Executive.
It may be recalled that a Subordinate Judge Mr. Masdar Hossain along with several other Judges of the Subordinate Judiciary initiated this course of action through the filing of a writ in the Hing Court in this regard.
The case drew special attention as the 'Masdar Hossain case' and became the basis and the focal point for all later legal initiatives on this issue. The subsequent consideration of this complex matter also included questions of interpretation of Article 27 (equality before law) and Article 29 (equality of opportunity in public employment) of the Constitution. These aspects were included as the plaintiffs felt that their fundamental rights as judicial officials have been violated through contentious directives issued by the Ministry of Finance.
Their petition also highlighted that 'service of the republic meant any service, post or office, whether in a civil or military capacity, in respect of the Government of Bangladesh'. In this context, Article 152 of the Constitution was also referred to. It was also argued, most interestingly, that this Article should not apply to persons in judicial service as 'judicial service means a service comprising of persons holding judicial posts not being posts superior to that of a District Judge'.
Such an approach in more ways than one was controversial to say the least. The Plaintiffs further bolstered their arguments by referring to Part VI of the Constitution and Articles 94 to 117 of the Constitution (specifically highlighting the elements contained in Articles 114 to 116 A regarding the Subordinate Judiciary). Reference was also made to Articles 61 to 63 of Part IV of Chapter IV of the Constitution through which Defence Services were considered as a separate service.
The High Court accepted the plea of the petitioners and allowed the petition. This was in 1999. The government appealed against this High Court decision. It took several years for the matter to be eventually resolved through a decision by the Appellate Division in favour of the independence and separation of the Judiciary. The highest court of the country issued clear directives that the Judicial Service, though a service of the Republic, was completely separate and distinct in character. It was also clarified that the control of the Judicial Service should be guided by rules framed according to Article 115 and not rules under Article 133 or 136 of the Constitution. It was also clarified that the Services Act, 1975 and the Civil Service Recruitment Rules, 1981 would not apply with regard to the Judges.
The Appellate Bench also decided that all necessary steps be taken by the government to ensure effective separation consistent with Article 115 of the Constitution. The government was also directed to (a) make Rules/Laws/Orders under Article 133 pertaining to posting, promotion, leave, discipline (except suspension and removal), pay, allowance, pensions and other terms and conditions and that these should be consistent with the spirit of Articles 116 and 116A; (b) establish a Judicial Pay Commission to review the pay, allowances and other privileges of those in the Judicial Service; (c) secure security of tenure, security of salary and other benefits for those in the Judicial Service. It was also made clear that institutional independence from the Parliament and the Executive had to be ensured through Rules/Orders to be framed under Article 133 of the Constitution; (d) extend all benefits of service to the members of the Judicial Service like the other cadres and (e) establish a Judicial Service Commission and a Judicial Pay Commission to make necessary service laws that would be applicable only for the members of the Judiciary.
In this context, the government was also ordered to take immediate necessary steps that would include (a) the formation of Bangladesh Judicial Service distinct from the BCS (Judicial) and (b) the formation of a Judicial Service Commission headed by an Appellate Division Judge. It was also underlined that this Commission would be responsible for the appointment of Judges to the lower Judiciary without any influence of partisan political interests.
The first step has now been taken towards the establishment of a truly independent and separate judiciary. However, there are still several obstacles that will have to be overcome. As already reflected, there is the obduracy of the Executive branch. Necessary measures will have to be taken to ensure that there is participatory engagement from all branches of governance. This will have to be undertaken carefully. At the same time there must not be hesitation or a feeling of compromise. All the good work will then be undone.
The government, particularly the Ministry of Law, the Ministry of Home Affairs, the Establishment Division, the Cabinet Division and the officials of the Supreme Court will have to meaningfully cooperate with each other so that framing of laws pertaining to the Bangladesh Judicial Service can be streamlined. The Ministry of Public Works will also have to assist through the creation of necessary infrastructure. This will be specifically required with regard to administrative measures such as -- constitution, recruitment, suspension, dismissal, removal, posting, promotion, leave, control, discipline and other related service conditions. We have had preliminary efforts pertaining to amendment of the Code of the Criminal Procedure, 1898. These will also need to be completed satisfactorily. At this point, I would like to express my support for the idea of establishing a separate secretariat for the Judiciary. This will certainly facilitate the many tasks that will have to be addressed in the coming months.
We will have many contentious issues that will arise during the process of implementation. However, that should not delay the process. Determination and flexibility should be the guiding actors.
The new matrix will apparently be initiated through the presence of 201 Judicial Magistrates. According to the amended CRPc the cases pending with the courts of the District Magistrate or Additional District Magistrate will be transferred to the court of the Sessions Judge of the district, and the cases pending with the court of the Executive Magistrate will be transferred to the Chief Judicial Magistrate of the district. The Sessions Judge and the Chief Judicial Magistrate will dispose of the cases transferred to them or transfer them to the court of Additional Sessions Judges or Judicial Magistrates, respectively.
We are entering a new era. What we will have is a tentative arrangement that will need the support and cooperation of every branch of government. It is up to us to ensure that this separation does not become a token gesture. This measure contains real promise. It has to be supported not because it has been decided and sanctioned by the highest Court but because it contains the possibility of people being able to realise their legal and human rights according to the due process of law.
Muhammad Zamir is a former Secretary and Ambassador who can be reached at mzamir@dhaka.net
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