DhakaTribune
Saturday September 23, 2017 02:51 AM

The case for an independent judiciary

The case for an independent judiciary
An independent judiciary is necessary in averting misgovernanceBIGSTOCK

The Supreme Court’s decision is supported by the Constitution and the principles of rule of law

Since its inception, there have been 16 amendments made to the Constitution of Bangladesh.

In the last 47 years of our independence, five of these amendments have been declared void, unconstitutional, and undemocratic by the Supreme Court of the country and a part of the 8th Amendment was also declared void.

The 16th Amendment stipulates that the 4th amendment of 1975 is a violation of basic structure, which replaced the parliamentary system with a presidential form of government.

From this perspective, it is easy to presume that on August 1, the apex court not only scrapped the 16th amendment but also scrapped the 4th amendment.

In 1975, the removal of Supreme Court judges was in the hands of the president, but by the 16th amendment it was transferred to the parliament.

Here, parliament plays a prime factor in finding out the intention behind the scrapping of the 16th amendment.

Our parliament members are directly bound to their respective parties under Article 70, which confers an obligation on the members not to go against the mandate of the party they belong to.

Therefore, a decision taken by the party is to be regarded as the decision of any parliament member belonging to that party.

From this perspective, the parliament’s decision basically represents the decision of the majority of parliamentarians belonging to the ruling party.

That’s how we can safely say that, under the 16th Amendment, the impeachment process will be run by the party, not by the parliament.

Before this amendment, Article 96 included a provision for a Supreme Judicial Council, which would include the chief justice, to oversee the impeachment process. The amendment in question scrapped that provision.

The verdict

In July, the Supreme Court upheld the High Court’s decision that declared the 16th amendment illegal. In this remarkable judgment, the SC made many brilliant observations on various aspects of the existing situation of the country, including human rights violations, corruption, a dysfunctional parliament, health care, and the administrative system.

In the full text of the verdict, 39 directions have been given for the judges.

Regarding the country’s law enforcement, the verdict said that they are unable to tackle the situation and the combined result of all this is a crippled society.

It also describes our society as one where a good man cannot even dream of good things; instead, the bad guy is always on the lookout for crooked ways to make more money.

While commenting on the nature of the executive branch, the SC doubted the efficiency of an unrestrained executive and bureaucracy.

We want a society based on rule of law, where, not just development, but the independence of the judiciary will also be a major criterion in a functioning democracy

Here the court stressed the necessity of a watchdog mechanism and a system of checks and balances, without which people in positions of authority are able to indulge in abuse of power.

The full verdict also discusses the current, unfortunate state of the judiciary: “But judiciary too cannot survive long in this situation. Yet, no law has been formulated for selection and appointment of judges in the higher judiciary. There is no scope for imparting training to the judges of the higher judiciary. It is high time for formulating laws for the selection of the judges and their training so that they can be equipped to face the challenges of the 21st century.

“Instead of strengthening the judiciary, the executive is now trying to cripple it, and if that happens, there could be disastrous consequences.”

The Constitution promises an independent judiciary

If the past is any indication, the independence of the judiciary is more theoretical than practical, here in Bangladesh.

But Section 22 of the Constitution says that “the State shall ensure the separation of the judiciary from the executive organs of the State.”

An independent judiciary is not only a fundamental component of our Constitution, it is also the sine qua non of the rule of law.

In Anwar Hossain Chy v Bangladesh, it was expressly said that “the rule of law is a basic feature of the Bangladesh Constitution.” It was also mentioned in the 1959 Declaration of Delhi.

Yet, we frequently see attempts by the legislative and executive branches to minimise the autonomy of the judiciary, leading to frequent conflicts among the three organs of the state.

A provision of the Supreme Judicial Council states that when the chief justice wants to launch an investigation into a judge’s complaint, he cannot do so without the president’s permission.

The president is but a titular head of the state who is bound to listen to the prime minister before taking any action, according to Article 48(3) of our Constitution: “The president shall act in accordance with the advice of the prime minister.”

So, there is no direct role of the Supreme Judicial Council because it’s indirectly bound to the leader of the ruling party. Thus, it is still unclear how the independence of the judiciary has been ensured by this verdict.

In case of the lower judiciary, the independence is also a matter of contention. Posting, promotion, and transfer of the judges of subordinate judiciary are still in the hands of the law ministry.

We want a society based on rule of law, where, not just development, but the independence of the judiciary will also be a major criterion in a functioning democracy.

Raihan Sobhan is a freelance contributor.

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