Attempts to rebuild independence of the judiciary in Bangladesh
Sara Hossain
The independence of the Judiciary … is one of the basic pillars of the Constitution and cannot be demolished, whittled down, curtailed or diminished in any manner whatsoever, except under the existing provisions of the Constitution … we find no provision in the Constitution which curtails, diminishes or otherwise abridges this independence.
(Masdar Hossain vs Bangladesh 2000 BLD (AD) 104 Per Mostafa Kamal J. [emphasis added])
In the almost four decades since Bangladesh became an independent nation, through periods of continuing transition, from immediate post-war aftermath through parliamentary to presidential to outright military rule and back again, the supreme court has repeatedly been the focus of public attention, providing a forum not only for redress of rights against a repressive state, but carving out, with greater or lesser caution, parameters for determining relations between the state and political parties and, more recently, the duties and obligations of the state to the people at large and to the public interest.
The court’s approach has oscillated between permitting full frontal challenges followed by correctives to executive action and inaction in the face of flagrantly arbitrary action and clear constitutional breaches. This approach has also marked the efforts made to safeguard the court’s own autonomy and independence.
Experiences of executive control and interference, which marked both the colonial and the Pakistan periods, informed the framing of explicit provisions in the post-independence Constitution of 1972, mandating independence of the judiciary and its separation from the executive at all levels. However, amendments to the original constitutional provisions made under autocratic and military rule, the failure to overhaul the inherited institutional structure, and the continued intervention of deeply embedded vested interests, further exacerbated by overt politicization of the court, and new constitutional arrangements enabling involvement of the senior most members of the judiciary in the executive, have—if not as yet demolished—certainly diminished and curtailed the scope for the court to operate with full independence. This chapter examines the legal and institutional framework for safeguarding the independence of the judiciary in Bangladesh, focusing in particular on the role of the supreme court in this regard. It first outlines the provisions of the 1972 constitution, which articulated the principle and promised the potential for securing judicial independence at all levels. It then describes how these principles were eroded through law and practice, most significantly through enhancing the president’s powers to the detriment of the chief justice under the fourth amendment (accompanying the imposition of one-party rule), fragmentation of the supreme court by the eighth amendment (under effective military rule) and then further—albeit more indirectly—by the thirteenth amendment (under an elected government introducing the caretaker government system), which envisaged a role for the judiciary in the executive, as well as through interference with the appointments process.The discussion then traces the Supreme Court’s assertions of judicial independence, focusing in particular on the landmark judgments in Anwar Hossain’s case (which laid down the doctrine of the basic structure of the constitution), and the more recent Masdar Hossain case, which elaborated a framework for separation of the lower judiciary from the executive, and its outcomes. (A third judgment, in Idrisur Rahman’s Case, which may ultimately join these in significance, is currently under appeal in the appellate division and therefore not discussed here.) The discussion concludes with a reflection on the continuing legacy of the politicization of the judiciary with regard to its effective functioning as well as current institutional challenges to the delivery of justice. It also considers the approaches available to the court as it seeks to put its own house in order, not merely by asserting autonomy, but examining whether it is as yet prepared for ensuring its accountability.
In the immediate aftermath of the independence of Bangladesh, the members of the constituent assembly charged with drafting the constitution were fully alive to the need to safeguard the judiciary from politicization and executive control, the impact of which many of them had suffered directly during both the British and Pakistan periods.
Consequently, the 1972 Constitution, in its original incarnation, articulated a principle of judicial independence (art. 22) as a principle of state policy, and explicitly guaranteed that the chief justice and the other judges of the supreme court would be independent in the exercise of their functions (art. 22, read with art. 94 4). This constitutional mandate for independence at every level was buttressed with specific provisions addressing the appointment, removal, and other terms and conditions of service of members of both the higher and lower judiciary.1 Under this framework, the Supreme Court enjoyed an unprecedented degree of administrative and financial control over itself. Supreme Court justices could only be appointed by the president, subject to consultation with the chief justice (art. 95). The retirement age was 62, and no judge could be removed following confirmation, except by the Supreme Judicial Council by president’s order after a parliamentary resolution with a two-thirds majority and on grounds of proved misbehavior or incapacity (art. 96). Their remuneration, privileges and terms and conditions of service could not be varied to their disadvantage during their term of office.2 Additional judges were to be appointed by the president for two years, if the president was satisfied, after consultation with the chief justice, of a need for increase (art. 98). Retired judges (except additional judges) were barred from acting before any court/authority or being appointed to service of the republic (art. 99).
The supreme court also had powers of superintendence and control over all courts subordinate to it.3 The chief justice was empowered to appoint all district judges, and the president all other judicial officers and magistrates exercising judicial functions according to rules made by him in consultation with the Public Service Commission and the Supreme Court.The Supreme Court also had powers of control (including posting/ promotion/grant of leave) and discipline of such judicial officers and magistrates exercising judicial functions (art. 116). While the regulation of appointment and conditions of service was to be by law made by parliament, subject to the constitution, it was also provided that the president may make rules until such laws were framed, which would be effective subject to the law’s provisions (art. 133). Significantly, there was a clear mandate that separation “shall be implemented as soon as practicable,” set out as a “transitory provision” (see Fourth Schedule, art. 6 [6]).
This framework proved impermanent, and the almost four decades since independence saw major encroachments, by autocratic and military rulers and indeed by democratic governments, on the relevant constitutional provisions, both through legal amendments and in practice, as we shall see later.
Within barely three years of the adoption of the constitution, in 1975, the then Awami League Government enacted the Fourth Amendment to the Constitution,4 resulting in extensive reworking, and virtual undoing, of the major provisions concerning the judiciary (Part VI, Chapters I and II). Most critically, this amendment curtailed the powers of the chief justice and the Supreme Court in the matter of appointments of both the superior and subordinate judiciary (arts 95 and 115). It removed the express constitutional requirement to consult with the supreme court or the chief justice in either case. It also provided scope for the president not to confirm the appointment of additional judges of the Supreme Court (art. 98), and to remove Supreme Court judges simply on grounds of misbehavior or incapacity following the decision taken by the Supreme Judicial Council (comprising the chief justice and two other judges). The amendment also resulted in the president taking over the Supreme Court’s powers of control (including posting, promotion, and grant of leave) and discipline of the subordinate courts (art. 116). The consequence—as noted by a respected former judge of the Supreme Court—was that “Article 116, as it stands now, is the insurmountable block against separation of the judiciary from executive control.”
Within the year, in 1976, martial law was proclaimed, and the Supreme Court was divided into the appellate division and High Court division, only to be reunited again barely a year later.5 More positively, however, the requirement for the president to consult with the Supreme Court regarding the control and discipline of subordinate judges and magistrates exercising judicial functions was restored (art. 116).6
Further incursions into judicial independence—in particular of the superior judiciary—were made during the military rule of Lt. General Ershad. First, the retirement age of Supreme Court justices was changed to 62 or on completion of three years as chief justice, whichever were earlier, in a deliberate design to affect the sitting chief justice. This provision was equally cavalierly repealed three years later, to enable the next chief justice to continue in office. By further martial law proclamations, Ershad then sought to denude the Supreme Court—a major source of resistance to his rule—of its strength. He established “permanent benches” of the high court in six district towns and transferred judges from the High Court to preside over them,7 measures which faced massive protests from lawyers across the country. Following elections that were widely questioned, parliament then adopted the Constitution (Eighth Amendment) Act 1988, which provided for establishing six permanent benches outside Dhaka and empowered the president (now Ershad) to determine their territorial jurisdiction (art. 100). The political and legal challenge against the breakup of the High Court, and this effort to diminish its powers, were ultimately to catalyze the popular movement against the Ershad “autocracy.”
Following Ershad’s fall in a popular cross-party movement, which demanded transfer of power to a caretaker government headed by a nonpartisan person, he appointed the sitting chief justice, Mr. Justice Shahabuddin Ahmed as vice president and then handed over power to him. Justice Shahabuddin headed the caretaker government and oversaw the return to a parliamentary system in 1991, and also the adoption of the Constitution (Twelfth Amendment) Act, which extended the high court’s supervision and control over subordinate courts to include tribunals (art. 109). Attempts were made to restore the original provisions of the 1972 Constitution but failed in the face of parliamentary deadlock.8
Subsequently, in 1996, following renewal of demands for a caretaker government arrangement in the wake of reports of massive vote rigging under Khaleda Zia’s government, the Thirteenth Amendment to the constitution introduced the system of a caretaker government overseeing parliamentary elections every five years, and allowed for a retired chief justice to be appointed as the chief advisor to each caretaker government. This provision blurred the lines regarding separation from the executive, this time at the highest levels of the judiciary (art. 58C).
This series of constitutional amendments curtailed the scope for the court to operate independently, enabling executive controls to be manifested over the powers of appointments and removals, and their administration. The legacy of the Fourth Amendment bore out the prescient remarks of a former judge: “The possibility of entry of political factors into the question of appointment of judges of the Supreme Court cannot be ruled out.”9 Following the restoration of the parliamentary system, and under the elected governments in place from 1990, several significant crises regarding appointments and non-confirmation of ad hoc judges of the Supreme Court took place.These incurred protests from the bar and criticism from civil society, and also faced constitutional challenges, resulting in a series of damaging standoffs with potentially very grave and long-term implications for the Supreme Court’s ability to act as a “competent, impartial and independent” forum of justice.
In each of these incidents, the issue of consultation with the chief justice was central. As noted by one leading lawyer, such consultation was meant to be “effective, meaningful, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play in appointment of judges.”10 Although the constitutional provision requiring consultation with the chief justice had been obliterated through the Fourth Amendment, there had never been any deviation from the actual process of such consultation. This process was followed as an unbroken convention until 1992 when, for the first time, the president appointed nine additional judges without consultation with the chief justice. The then chief justice (Shahabuddin Ahmed) declined to administer the oath to them and the legal community considered the matter as a threat to the independence of the judiciary. The then prime minister had to comply with the demand of the lawyers and canceled the appointment.The process of consultation with the chief justice was established as a cornerstone to the independence of the judiciary.11 However, lack of consultation recurred as a concern over the coming years and increasingly became mired in partisan disputes. Further appointments under the BNP-led government were questioned on this basis, as were some of the Awami League government’s appointments of additional judges to the high court division, and the next BNP-led government’s refusal to confirm the appointments of these nine additional judges. The nadir was reached in the wholesale appointment on a single day of 19 judges to the high court under the BNP-led government in 2004 (one of whom later resigned when facing a proceeding before the Supreme Judicial Council in relation to the allegation of his having tampered with his mark sheets and obtained a third-class LLB degree). In several instances, judges were appointed to the apex court by supercession of others, in derogation of the tradition of appointment of the senior most judge. Such appointments under the Awami League-led government were followed by physical attacks launched by lawyers supporting the opposition Bangladesh National Party (BNP) on the members of the apex court itself, and ultimately to counter–supercessions by the BNP-led government.
A number of these constitutional amendments and executive practices curtailing independence faced challenges before the Supreme Court, mainly by way of writ petitions filed by lawyers acting in the public interest, members of the subordinate judiciary, and most recently by former Supreme Court judges. The first major challenge in Anwar Hossain’s case resulted in perhaps the most important judgment of the appellate division to date (declaring judicial independence to be part of the basic structure of the constitution).12 Subsequently, following the return to the parliamentary system, the Masdar Hossain judgment laid out the legal and institutional framework for ending subordination of the lower judiciary to the executive. Most recently, a challenge by several former ad hoc judges of the high court to the then president’s non-confirmation of their appointment has been held to be wholly unconstitutional, and currently faces final determination before the appellate division.13 It is too early to review this last judgment, which may have long-lasting implications for the court, but the next two sections will discuss how, through Anwar Hossain’s and Masdar Hossain’s case, the judiciary laid down some fundamental principles for guiding relations between the legislature, judiciary and executive as well as asserting its own autonomy and independence.
As noted already, seven “permanent benches” of the high court had been set up under martial law in 1982, and then when the constitution was revived, following a constitutional amendment in 1988, the permanent benches were treated as sessions of the high court outside the capital. Each of these benches was given a fixed territorial jurisdiction while the high court was given a “residual” jurisdiction. The chief justice also framed rules for transfer of proceedings out of the high court to the permanent benches. In 1988, three petitioners challenged the refusal of the concerned court official to allow them to affirm affidavits in Dhaka on the ground that the main writ petition had been transferred to a “permanent bench” outside Dhaka under the Eighth Amendment to the constitution.14 It was argued that the constitutional amendment and the rules had damaged the basic structure of the constitution, which envisages the high court as having plenary judicial power. The high court rejected the petition, but the appellate division, by a majority of three to one—and for the only time in Bangladesh’s history—held that the constitutional amendment was void and that the structural pillar of the judiciary is basic and fundamental to the scheme of the constitution. They found in essence that the permanent benches of the high court, which the martial law authorities had sought to justify—and later the government and also the chief justice—as means of expanding access to justice to litigants beyond the capital, had in practice contributed to reducing significantly the quality of justice. Reflecting on the political context and the strains—and indeed dominance of the executive—within which the judiciary was compelled to operate, Justice M. H. Rahman remarked as follows:
The doctrine of basic structure … developed in a climate where the executive, commanding an overwhelming majority in the legislature, gets snap amendments of the Constitution passed without a Green Paper or White Paper, without eliciting any public opinion, without sending the Bill to any Select Committee and without giving sufficient time to members of Parliament for deliberation on the Bill for amendment.
The court proceeded to ground the basic structure doctrine by reference to Article 7 that all powers in the Republic belong to the people which, as noted by Justice Shahabuddin Ahmed:
[S]tands between the Preamble and Article 8 as the statue of liberty, supremacy of law and rule of law and to put it in the words of an American judge … it is the pole star of our Constitution. No Parliament can amend it because Parliament is the creation of this Constitution and all powers follow from this Article, namely, Article 7.
(at paras 183, 184)
The judgment resulted in the termination of the “permanent benches,” return of all judges to the Dhaka High Court, and restoration of the full plenary powers of the high court, which went on to become the forum in which many aspects of Ershad’s regime were to face challenge until his ultimate downfall in 1990, and his handover of power— in a pleasant irony—to the then Chief Justice, Shahabuddin Ahmed.
In 1996, Masdar Hossain, a district judge, along with several others, challenged a law15 that purported to include judicial officers within the Bangladesh Civil Service. As in Anwar Hossain’s case, the high court rejected the petition but, on appeal, Masdar Hossain won a landmark judgment, in which the appellate division directed establishment of a separate judicial service, distinct from the executive and from the administrative cadres of the Bangladesh Civil Service, to include both judicial officers and magistrates exercising judicial functions. It stated that members of both the judicial services and magistrates exercising judicial functions formed a class distinct from other services of the republic, and that they could not be “treated alike or merged or amalgamated with any other service, except a service of an allied nature.” The apex court addressed head on longstanding concerns regarding executive control over the subordinate judiciary, reaffirmed the principle of independence of the judiciary, elaborated on the constitutional position and practice regarding separation of the judiciary from the executive, and laid down a series of 12 declarations and directions for implementation by the government in this regard.16
This judgment addressed the larger colonial legacy, perpetuated by succeeding regimes both in Pakistan and independent Bangladesh, involving an overlap and blurring of judicial and executive functions. In the lower criminal courts, the area where executive control was most apparent and most problematic, the pattern for lack of separation was set early on. The colonial view, happily adopted by the postcolonial state, that administration could only be effective with a centralization of authority and the power to punish and discipline, informed these arrangements.Thus, the chief executive officer at the district level, the deputy commissioner, was also responsible for judicial functions as the district magistrate. Similarly, magistrates, appointed and controlled by the executive, who performed executive functions (for example issuance of licenses or orders of detention) were also empowered to exercise judicial powers including, among others, taking witness statements, entertaining bail applications, conducting trials and passing sentences in respect of certain offences. (These arrangements were embedded in the Criminal Procedure Code of 1898 [“the Code”].) The dilemma so eloquently expressed by John Eames, serving in Chittagong as a magistrate in the early 1920s, thus continued to plague all his successors into the century ahead: “It is troubling to be the executive officer in the morning, and then wear a judicial hat and sit in judgment on my own decisions in the afternoon!”17
While attempts at separation were made in the Pakistan period, they were either not maintained, or never implemented.18 Immediately after liberation, new members of the constituent assembly—who had directly or indirectly faced unfair trials, arbitrary arrests, denial of bail and prolonged periods of incommunicado detention, resulting from extensive use and abuse of magisterial powers—acting at the behest of the executive of the day, sought to chart a new path by embedding a clear mandate for separation of the lower judiciary. However, as noted earlier, the onslaught on the original letter and spirit of the constitution effected by the Fourth Amendment, swiftly followed by 15 years of direct and indirect military rule, put paid to the hope and potential for reform in this area.
As noted already, prior to the Fourth Amendment, the president could appoint officers in judicial service and magistrates exercising judicial functions “in accordance with rules made by him” (art. 115), which could be framed only following consultation with the supreme court and Public Service Commission. The president was also vested with direct control (including the power of posting, promotion, and granting of leave) and discipline of the subordinate courts, although this remained subject to his or her exercising it in consultation with the Supreme Court. Following the Fourth Amendment, and in the absence of any rules having been framed, the president appointed all judges of the subordinate courts as well as magistrates. These recruitments were made from the judicial cadre of the Bangladesh Civil Service (BCS Judicial) and the administrative cadre of the civil service (BCS Admin) respectively. By delegation of the president’s powers under the constitution, the Ministry of Law was responsible for initiating the process with regard to appointments, and also for transfer, promotion, leave and discipline of the subordinate courts. After preparing the files, the ministry, in a nod to the consultation requirement, would send these on to the Supreme Court for approval. The executive was thus placed in an extraordinarily strong position of control over the lower judiciary, and was able to use its power of appointments, promotions, and postings as a carrot or stick as necessary to manipulate both the composition of the lower judiciary and its functioning. These powers were in turn routinely abused by all regimes as a tool to cement their authority, and, too often, to control their respective political oppositions.
Another arena for confusion between judicial and executive functions was with respect to the practice of deputation, whereby judicial officers could be posted to purely administrative or executive posts, as the law officers of various ministries, including the Ministry of Law.19
When Masdar Hossain challenged the recruitment rules for judicial officers, he set in motion a process that enabled the court to examine each of the aspects of lack of separation between the executive and judiciary already discussed. It also resulted in a clear exposition of the contours of judicial independence, and a realistic and pragmatic understanding of its current constitutional limits. Thus, the court identified five key characteristics of independence of the judiciary: security of tenure; recruitment to the judicial service as a permanent posting and through a transparent Judicial Service Commission; security of emoluments, including pension, etc.; institutional functional independence of the subordinate judiciary from parliament and the executive and, finally, financial autonomy within the sphere of funds allocated. The court further held that every institution, authority and individual associated with the judicial administration is required to advance, strengthen and achieve these measures. In one of its “12 commandments,” the court required the government to set up two separate bodies, the Judicial Service Commission (to recruit members of the judicial service), and the Judicial Pay Commission (to fix pay scales for members of the judicial service), specifying the nature of their composition, powers, and functions, and to separate the executive and judicial functions of the magistracy. To this end, it required the government to adopt two sets of laws, one set requiring regulation of the terms and conditions of service of judicial officers,20 and the other requiring replacement of all references to “magistrates” in existing laws by the term “judicial magistrates,” and amendment of all laws that empower magistrates to try criminal cases.
For almost ten years after the Masdar judgment, it remained virtually unimplemented. In 2001, the then caretaker government ensured that all the draft rules were prepared and was on the brink of approving these at its last meeting prior to handing over power to the newly elected government, but did not proceed on receiving an assurance from Khaleda Zia, prime minister-elect, that her government would do so in fulfilment of their manifesto commitment. Once in power, however, Begum Zia’s government took no steps other than to adopt one set of rules for establishing the Judicial Service Commission21 and to provide for financial autonomy of the Supreme Court, and otherwise took adjournment after adjournment before the Supreme Court, claiming that the process was underway.
It was to take another five years and another caretaker government for all the rules to be finalized and adopted.22 In 2007, the caretaker government ultimately adopted the remaining rules regarding the terms and conditions of judicial officers, as well as legislation amending the Code of Criminal Procedure regarding the nomenclature, powers and functions of the magistracy. The amended code replaced all existing references to “magistrate,” without any qualifying word, by the term “judicial magistrate.” It provided for appointment of executive magistrates from among persons employed in the BCS (Admin) and appointment of judicial magistrates from among persons employed in the (newly created) Bangladesh Judicial Service. It also set out the powers and functions of executive and judicial magistrates both under the code and other laws. These functions are now clearly identified, with judicial magistrates being responsible for the appreciation or shifting of evidence or the formulation of any decision that exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or other proceeding or would have the effect of sending him for trial before any court, while executive magistrates are responsible for functions which are administrative or executive in nature, such as licensing matters, or decisions to sanction or withdraw a prosecution.
Despite the institutional and legal framework for separation having now been established, several concerns have arisen in regard to whether this framework is fully compliant with the letter and spirit of the judgment. One set of concerns relate to the continuing overlap between the powers of the judiciary and executive regarding appointments. With regard to appointments, control, and discipline of judicial officers, the Ministry of Law still initiates this process and thereby continues to exert influence over it. This has already given rise to critical questions in the media regarding how the ministry had nominated judicial officers for promotion overlooking “adverse remarks” in their confidential records, and the Supreme Court had approved this list of nominations without further scrutiny. In one case currently (2008) pending hearing, a national newspaper published reports highlighting the continued dependence of the Supreme Court on the executive, that is, the Ministry of Law, in relation to the appointment of district judges. Following publication, a lawyer filed a contempt of court petition against the newspaper alleging interference in the functioning of the supreme court.23
Another set of concerns relates to the practice of deputation. Deputation is a condition of service; but the apex court in Masdar Hossain clearly held that “judicial service” falls outside this definition of service, and thus there can be no deputation from judicial service, observing that “as oil and water cannot mix, the judicial and civil administrative executive services are non amalgamable.”24 Thus, the continuing practice of deputation—in respect of posting judicial officers to executive posts— appears contrary to the spirit of the judgment as well as the constitution. One concern is that the long-term effect of such “executive posting” might undermine the impartiality and independence of the judicial service by allowing judicial officers to operate within an executive environment, thereby affecting their capacity to operate neutrally and free of executive influence. However, judicial officers are continuing to demand that this facility be allowed.This question has been highlighted in litigation on the appointment of the Secretary to the Ministry of Law, Justice and Parliamentary Affairs, a member of the BCS (Judicial) cadre who chose to opt out of the judicial service and into the executive, but whose appointment has been challenged in a public interest petition brought by a former judge.25
The Masdar judgment has also been invoked to buttress long-standing demands from the bar for a law containing specific guidelines to prevent arbitrariness in appointments of Supreme Court judges, in order to strengthen the court as an institution. When the Supreme Judicial Commission Ordinance 2008 was promulgated, in apparent response to this demand, a public interest petition was filed challenging its constitutionality on the ground that the proposed commission was comprised of a majority of members from the executive branch.26 While the petition was pending, the government amended the ordinance, ensuring that a majority of members were to be drawn from the judiciary.
The High Court Division also recently declared the Contempt of Court Ordinance 2008 to be unconstitutional on the grounds, inter alia, that certain provisions contravened the Masdar judgment, in particular regarding the definition of contempt. The ordinance had provided that non-compliance with a court order would not constitute contempt if such compliance was not practicable, and, further, if it would involve contravention of any existing laws, and would effectively have benefited members of the executive.
Other more practical concerns regarding implementation of the judgment relate to the nature of recruitment—in terms of numbers and quality—for both the civil and criminal courts. In respect of the former, the Judicial Service Commission has proceeded with recruitment after a hiatus of several years, during which many judicial posts had lain vacant, and appointed over 200 judicial officers, with some controversy arising regarding the nature of these appointments. With respect to the criminal justice system, the relatively small numbers of magistrates opting for the judicial service (presumably loath to abandon their proximity to power in the executive service) meant that there was, and will continue to be, a serious shortfall in judicial capacity at this level, compounding existing delays and difficulties to be faced by the users at the frontlines of the system.
While the steps taken to date are significant, they are clearly only the beginning of a very long process required for effective separation and for full independence.As acknowledged in Masdar Hossain’s case, without restoring the original Articles 115 and 116 of the constitution, the supreme court will be unable to exercise full control and discipline over the subordinate courts. Further amendment of the current rules may be necessary. Other more practical measures will also be needed, to supplement the formal and legal framework so that judicial officers and judicial magistrates can operate freely. These would require changes in their conditions of service to include more appropriate remuneration and benefits, raising the levels of competence, introducing systems of monitoring and evaluation, schemes for annual recognition and reward, as well as greater transparency and openness in the functioning of the courts, for example, by holding annual conferences, or the publication of annual reports containing case data.The most crucial change needed, and the one impossible to address through legislation alone, will require the cultivation of independence of mind and spirit immune to any kind of influence, whether from partisan political forces, or other powerful actors or agencies.
If the operation of the courts continues to give rise to fears that they are not able to operate free of “extraneous influences,” and if there is no strong mechanism to check partisan decision making, then concerns regarding the accountability of the judiciary will also multiply.27 The politicization of the appointment process, and the consequences of these appointments in terms of the patterns of judgments and orders in certain politically sensitive cases, have led to serious questioning of the image of the judiciary as an independent institution. These issues have, in turn, raised concerns regarding the capacity of the judiciary to ensure its own accountability. Recent experiences have heightened these concerns.These include the refusal of the court to investigate allegations raised in the media regarding the lack of qualifications of a person appointed as an additional judge (who later himself resigned when a proceeding was finally initiated before the Supreme Judicial Council); the continuing lack of inquiry into the nature of these appointments, and the lack of any self-corrective mechanism established by the court to address them. These questions are likely to come to the fore in a pending appeal before the supreme court against the high court’s judgment holding unconstitutional the earlier non-confirmation by the BNP-led government of nine additional judges.28 In this judgment, the appellants include 19 sitting judges of the high court, on the one hand, pitted against persons who had all served as additional judges, on the other. It establishes unprecedented and complex hurdles for the court to overcome on the road to establishing both judicial accountability and independence.
The Anwar Hossain case involved reinsertion of bricks into the pillar of the independence of the judiciary, which had been flung out in four directions, and Masdar Hossain’s has enabled rebuilding of a firm plinth in the form of separation of the judiciary. Clearly, there is much still to be done, and the constitutional petitions now pending before the courts raise important questions regarding the manner and mode of this rebuilding process, and what it will require if the foundation is to be solidly built. But most importantly, with Article 116 remaining in its present form, it is clear that there are major structural deficiencies in the pillar. And the new controversies regarding appointments and non-confirmation of Supreme Court judges now call in question whether the pillar is crumbling from within.
The discussion in this chapter has shown how movements for ensuring independence of the judiciary, and for reconstructing the applicable legal framework have been first catalyzed, and then driven from within the legal system by activist judges and lawyers with a commitment to maintaining the integrity of the system and enabling it to continue to deliver justice, within all existing constraints. It is equally evident that these movements have faced continued resistance from within the bureaucracy and, most important, from those holding political power at the highest levels (and elements partisan to them among both judges and lawyers), who have sought to retain executive controls over the judiciary, not only to manipulate the political opposition but in the more general expectation of favorable outcomes.
Sadly, while lawyers actively engaged in political life, and members of the Bar actively engaged in movements for democracy have advocated, inside and outside the courts, for the restoration of judicial independence, they have been less insistent on this demand once their favored political parties achieve office. And indeed the consistent pattern under all regimes—from full-blown military governments to autocratic presidents and elected parliaments—has been to reduce independence, on the one hand, and further politicize the judiciary, on the other. The fruits of this political patronage—exacerbated by the carrot and stick effect on the senior most judges of the possibility of their elevation to the highest office in the land as chief advisor of the caretaker government—have led to the current crisis. Today, the higher judiciary remains the forum of last resort against arbitrary executive action. But its capacity and ability to provide such protection is under question, and it is clear that its reputation has suffered serious erosion. The current confrontation between appointed and non-confirmed judges and sitting judges further threatens the integrity of the institution. It remains to be seen whether and how the apex court will steer itself through the crisis that looms.
1 The Chief Justice of Bangladesh presides over the supreme court and the subordinate courts. The supreme court itself has two divisions, the appellate division and the High Court division (see art. 94, Constitution). The subordinate courts include civil courts (established by the Civil Courts Act 1887), criminal courts (established by the Code of Criminal Procedure 1898) and other courts and tribunals as established by Parliament (art. 114, Constitution and specific laws).
2 Art. 147, Constitution of Bangladesh; see also Mahmudul Islam, Constitutional Law of Bangladesh, 2nd edition (Dhaka: Mullick Brothers, 2002), para 6.59B, and Commissioner of Taxes v Justice S. Ahmed 42 DLR (AD) 163 (exemption of Supreme Court judge’s salary from payment of tax).
3 Art. 108-109 of the Constitution of 1972; see Shahar Ali v AR Chowdhury, Sessions judge, 32 DLR (1980) 142 (on the ambit of art. 109).
4 Justice Naimuddin, “The Problems of the Independence of the Judiciary in Bangladesh,” in Bangladesh Institute of Law and International Affairs (BILIA), Human Rights in Bangladesh: A Study of Standards and Practices (Dhaka: BILIA, 2001), p. 187. The Fourth Amendment inserted a new Article 116A providing that “subject to the provisions of this Constitution, judicial officers and magistrates shall be independent in the exercise of their judicial functions” described by Mahmudul Islam as “being without substance” in view of the removal of the consultation requirement (M. Islam, Constitutional Law of Bangladesh, supra, at p. 63).
5 Second Proclamation (Seventh Amendment) Order 1976, the effect of this being undone by the Second Proclamation (Tenth Amendment) Order 1977.
6 Proclamation (First Amendment) Order 1982, this part being repealed by Proclamation Order No. IV of 1985. The retirement age was later fixed at 65 in the Constitution (Seventh Amendment) Act 1986.
7 The Proclamation (Second Amendment) Order 1982 provided for the Chief Martial Law Administrator to establish permanent benches of the High Court at such places as he may fix. By the Proclamation (Third Amendment) Order 1986, these were renamed as Circuit Benches, and then later, after withdrawal of martial law, they were renamed as Sessions of the High Court.
8 Salahuddin Yusuf MP (AL) introduced a private member’s bill in parliament in 1991 to re-introduce the original Articles 95, 98, 115 and 116, which was sent to the Select Committee, where it was considered until 1993, but not ultimately enacted. See discussion in M. I. Farooqui, infra, at p. 66.
9 Naimuddin, supra, at p. 177.
10 M. I. Farooqui, “Judiciary in Bangladesh: Past and Present,” in 48 DLR (1996) Journal 65; see, in particular, discussion of pattern of appointments in 1992 onwards and references cited at p. 68 from Dr. Ahmed Hossain v Shamsul Huq Chowdhury 48 DLR 155.
11 There were no specified criteria for such consultation relating, for example, to merit, competence, honesty, integrity although presumably it was required that such issues were to be taken into consideration.
12 1989 BLD (Spl) 1.
13 Idrisur Rahman v Secretary, Minister of Law, Justice and Parliamentary Affairs, Writ Petition No. 1543 of 2003, judgment dated 17 July, 2008 challenging the non-appointment by the President of Justice Abdus Salam and Justice Momtazuddin Ahmad, despite their having served over three years as additional judges of the high court, and despite the Chief Justice having recommended their appointment.
14 Anwar Hossain Chowdhury v Bangladesh, Jalaluddin v Bangladesh, Ibrahim Shaikh v Bangladesh (1989) BLD (1) Special.
15 Bangladesh Civil Service (Reorganisation) Order 1980.
16 The review petition was disposed of in Secretary, Ministry of Finance v Md. Masdar Hossain and others (20 BLD (2000) (AD) 141), The judgment arose from an original petition filed by 218 members of the subordinate judiciary.
17 John Beames, Memoirs of a Bengal Civilian (London: Eland, 2003[1961]). Beames joined the Indian Civil Service in 1859; his last posting was in Chittagong. I am indebted to R. Sudarshan for recalling this reference.
18 See Art. 55(4), Constitution of Bangladesh, read with the Rules of Business, 1996.
19 In 2005, about 80 judicial officers were posted in various ministries, departments and statutory corporations. Judicial officers posted on deputation mostly serve as legal advisors or administrative officers. The administrative functions discharged by judicial officers while on deputation include serving in the registrar’s office in the Supreme Court or in various tribunals; as solicitor or administrative officer at the Solicitors Office, the Ministry of Law, the Parliament Secretariat, the Judicial Administration Training Institute and in the Prime Minister’s Secretariat.
20 The Code of Criminal Procedure, 1898 provided for the classification and powers of different categories of magistrates.
21 The Judicial Service Commission Rules (JSC Rules) 2004. Masdar Hossain’s counsel and others had noted that the JSC’s composition was contrary to the requirements of the judgment, which required that it should comprise majority members from “the Senior Judiciary of the Supreme Court and the subordinate courts.”
22 The Bangladesh Judicial Service Commission Rules, 2004 (notified on 28 January 2004), was thus finally followed by the Bangladesh Judicial Service (Pay Commission) Rules 2007, the Bangladesh Judicial Service (Service Constitution, Composition, Recruitment and Suspension, Dismissal & Removal) Rules 2007, the Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Conditions) Rules 2007 and the Code of Criminal Procedure (Amendment) Ordinance 2007.
23 See report titled Jela judge Podonnoti’r khetrey 16 joner biruddhey gurutoro obhijog (Serious allegations against 16 persons recommended for appointment to District judge), Daily Prothom Alo, 24 May, 2008.
24 At para 41. Deputation is a service condition provided for in Art. 8 of the Bangladesh Civil Service Recruitment Rules, 1981 as follows: “Rule 8. Relaxation. - (1) Notwithstanding anything contained in these rules - (b) A person holding a specific post in a Service may be appointed by the Government to a specified post in another Service on deputation.” This provision is applicable to a person who holds a specific post in a “Service” as defined in Schedule I to the Rules. A person in the BCS (Admin) Cadre may be sent on deputation to a judicial post for up to three years after the coming into force of the Composition Rules.
25 Aftabuddin v Habibul Awal, Writ Petition No. 6219 of 2007, judgment dated 18 February, 2007, upholding the challenge; the operation of the judgment has been stayed, pending appeal before the appellate division.
26 Md. Idrisur Rahman v Bangladesh and others, Writ Petition No. 3228 of 2008.
27 See discussion in Justice Latifur Rahman, “Judicial Independence and the Accountability of Judges and the Constitution of Bangladesh,” in 52 DLR (2000) Journal 65, at p. 68, noting that there had been no effective functioning of the Supreme Judicial Council till that date, nor had any effective measures been taken to improve the accountability of subordinate courts nor had there been any implementation of the Code of Conduct of 2000.
28 Idrisur Rahman v Bangladesh,Writ Petition No. 1543 of 2003.