BANGLADESH: Why should judicial independence be delayed any further?
The judiciary of Bangladesh is struggling to be an independent institution, free from executive control since the inception of the country. This struggle was formally exposed when a group of judicial officers led by Mr. Masdar Hossain - currently a District and Sessions' Judge - took the matter to the High Court Division in 1995.
The Supreme Court directed the government, vide its judgment dated 2 December 1999, that how the judiciary should be separated - in terms of its day-to-day functions, formally as an institution and financially, from the executive. Regrettably, governments failed to comply with the Supreme Court's directions, that otherwise would have severed the bondage between the judiciary and the executive. Had the Court's decree complied with, it would have provided the judiciary its much lacking independence.
In the recent weeks, the Supreme Court has taken up the issue once again. The Court has directed the government to ensure financial independence of the judiciary, by increasing the salaries and other financial benefits of the judicial officers. The government, apparently due to bureaucratic pressure, is yet to implement the Court's order.
The government has undeniable obligation to ensure judicial independence. According to the Basic Principles of the Independence of Judiciary, adopted in the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, in Milan, in 1985, all nation-states are obligated to ensure judicial independence within their territories.
The first basic principle is that "[t]he independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary."
The Government of Bangladesh, could, if it wishes, draw inspiration from history of how judicial institutions' structural developments came out. According to Cornwallis Code, the office of the District Judge was made independent from the executive in 1793 in the then Bengal, from which today's Bangladesh has emerged. Magisterial power was transferred to the District Judge from the District Collector when Conwallis Code was in practice. Bangladesh's national encyclopaedia BANGLAPAEDIA informs that "[i]n the administrative hierarchy, the district judge is placed higher than the district collector in respect of pay and status."
There are several provisions in the current Constitution that guarantees judicial independence. For example, in Article 22, reads: "The State shall ensure the separation of the judiciary from the executive organs of the State". This provision clearly states about the obligation of the government to ensure judicial independence.
Article 35 (3) of the Constitution states: "Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court or tribunal established by law." Here, having an independent judiciary is a fundamental right to all the citizens of Bangladesh.
Article 94 (4) asserts that: "Subject to the provisions of this Constitution, the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions." Financial independence is an integral part of the concept of judicial independence.
The growth and maturity of a true democracy within the overall fabric of the rule of law requires an independent judiciary. This is a basic learning that Bangladesh should have had, and gained during the last four decades of independent existence as a nation state. Instead, a shadow of what is otherwise understood, as "the judiciary", under the control of the ruling regime, could only be good to harass political opponents, deny civil liberties and to foster impunity.
Unfortunately in Bangladesh, the entire justice framework, most importantly the criminal justice institutions have remained a far cry of what an independent institutional ought to be. This is reflected in disappearances, extra-judicial executions, widespread reportage of torture and other forms of custodial violence, all incidents in which one of the most powerful limb of the executive, the law-enforcement agencies have their footprints. The criminal justice apparatus of the country is incapable, ill-equipped and is less empowered due to its servitude with the executive to deal with these human rights and civil liberty abuses.
This has resulted in drastic reduction in the notion of justice in the country. People's faith in the judiciary will not strengthen until judicial independence becomes the norm and the government guarantees it in thought and action. The prevailing context in Bangladesh is however contrary to this state obligation.