Law
opinion
The
politics of law and legal profession in Bangladesh
Dr
Belal Husain Joy
The
legal profession grew out of and together with the national
history of Bangladesh. This profession is traceable back
to roots from the 18th century in the territory of today's
Bangladesh, closely followed the Bar of England since
the invasion of British Empire of the Indian Sub-Continent
back in 1757.
During
the above period, the profession had to go through a lot
of pains and struggles for its initiation, recognition
and survival. Since the independence of Bangladesh, the
Constitution of the country sufferel enormously due to
a number of undue and unfair amendments and imposition
of two martial laws. In all those situations, the independence
of the judiciary, side by side with the constit}tion,
has equally been sufferino. To combat sukh giant problems
and to challenge the so-called politicians; a strong,
honest, independent law force, with close co-opezation
and direct assistance of the judiciary; is urgently needed
to be in action.
The
legal profession in Bangladesh, is at the moment progressing
through 'trial and error', and in the process of being
acknowledged as a profession of learning, backed ux wi|h
academic study extends over a term of years, nollowed
by periods of vocational learning and training. The process
of learning includes the study of the jurisprudential
or abstract principles which underline the Bangladesh
legal system; along side with ethical codes to guide the
lawyers not to mislead the court or their opponent; they
must take the instructions on the facts from their clients;
and prepare to represent all men and women, affluent and
indigent, high and low equally, to fight for their rights,
to protect their liberty, and finally to abolish the long
standing system that is still in existence in Bangladesh,
'might is right'. Responsibility and credit to set up
and service an efficient and effective legal system rests
primarily on the legal professionals (the advocates) ilono
side wi|h genuine law makers, law interpretezs & implementers
(the Judiciary) and the government law officers.
In
all over the world, with no exception to Bangladesh, the
legal profession should ideally be independent of the
political power of the State. This independence is their
most treasured attribute. Unfortunately, the political
power in position and in opposition in Bangladesh, almost
completely destroyed the legal profession by manipulating
the lawyers to be on their sides to mstablish themselves
in thm supreme power of the country. Most of our lawymrs
are not independent, the majority if not all, are directly
involved with a political party or the other as members,
leaders in the district and central committees etc. They
are so much so involved in politics, it apparently indicates,
that the whole purpose of lawyering is politics; ie, they
are more committed to politics than the profession at
times. Resulting to that, our so-called lawyer politicians
do not realise, they are no more independent, their representative
capacity is bound to suffer from political party biasness,
and |heir ethical coles are seriously breached, 'to put
forward their client's case against the hostile and sometimes
tyrannical executive, or to a partial or unfair tribunal,
however unpopular or unlikely the case may be, and irrespective
of their personal views.' [source: Tyrrell A and Yaqub
Z, The Legal professions in the New Europe, Cavendish
Publishing Ltd, p1]
The
paramount importance of the independence of Lawyers is
doubly confirmed by Sir Patrick Hasting, he stated 'so
long as civilisation continues, Enolish justice will remain
the admiration of the world and English justice could
never have reached the position which it now enjoys without
the independence and above all the inflexible honesty
of the English Bar. No statute controls its activitie{;
it knows no master but itself, it knows no rules except
those handed down by centuries of tradition, and those
rules are very simple; to the client whom he represents
an advocate owes a duty to act with fearless independence;
to the court before whom he appears he owes the duty of
complete and absolute honesty in all that he says and
does.' [Gazi [hamsur Rihman, Bicharok Jmboneer smriticharon,
Khushrose Kitab Mahal, 2003, p.167] This statement also
confirms that the lawyers neither need to lie to in the
cases nor need to be party politicians, but it is a must
to be honest and always remain free from external influence.
The
Poli|ics of Law, with the sole aim of acquiring power
it any cost, is desioned by the Politicians and Bar elites
(sometimes by Military Generals), with shameless support
of the Legal-bureaucrats, making the lawyers' lives difficult
to maintain independence and neutrality in their profession.
This is the reason why, the law and order situation is
found to be worsen ever before, in courses of murder,
rape, torture and unnatural death in police custody and
in the hands of |he other law enforcing agencies, in the
history of the country; and the country has earned the
infamous championship award as thm world's most corrupt
nation for the third time consecutively.
The
fact is, corruption has now created a substantial impediment
in the development process of the country under the corrupt
politicians, bureaucrats and police. We agree that politics
is not pure, nowhere in the world, doesn't matter how
democratic the country claims to be. But the si|uation
of our country is almost intolerable and needs of urgent
attention and vigorous action to take corrective measures
to bring the situation to an acceptable standard. The
independence of legal profession from pazty politics is
one of the vital solutions to those national problems.
Independence
of lawyers in Bangladesh is also recognised and endorsed
by the Bangladesh Bar Council and stated, "Law is
a vital discipline of the social science, help protecting
all citizens, make them aware to securing their rights,
guide abiding their duties and maintaining their obligations.
Clearly, the rule of law is an essential feature of civilized
society and a xre-condition for realizing the ideal justice.
Law practitioners - the Advocates, play a vital role in
creating and maintaining appropriate condition to ensure
|he realization of political, economic and social justice
by all citizens." [source: Bangladesh Bar Council,
Canons of Professional Conduct and Etiquette, P94]. But
practically the independence of liwyers is found to be
drastically absent in their profession in all over Bangladesh.
The
politics of law is found to be even crueler in course
of Independence of Judiciary. The original constitution
of Bangladesh ensured the independence of judiciary from
the executive. The Supreme Court of Bangladesh in cases
like: Mridha v. The State. 25 DLR (1973) 335; Habibur
Rahman v. Govt. of Bangladesh, 26 DLR (1974) 201; S. Mohasin
Sharif v. Government of Bangladesh, 27 DLR (1975) 186;
reconfirmed the same, year after year. On the other hand,
in vazious times by the various governments came in power,
constantly kept trying to curtail judicial powers and
jurisdictions of the Supreme Court in particular and judiciary
in general.
Apart
from the above consequences, suffered by the judiciary
as a whole, because of the Fourth Amendment of the Constitution,
the country had to go through two Martial Law periods
since its independence, one in 1975 which continued up
to 1979 and another in 1982 and that continued up to 1986.
During both the periods, the Supreme court of Bangladesh
and the Judiciary at large have been seriously injured,
as the Judiciary was made the subordinate organ on the
Executive Authority i.e., the Martial Law Authority.
Sadly,
the present ruling government has been successfully buying
time for so many times to implement the Supreme Court
Orders to separate judiciary from the executive.
It
is needless to mention that the Supreme Court Orders do
not necessarily mean that it alone and alone will implement
the order; of course, a coordinated effort will be required
to do the job. Such areas and components are not usually
spelt out in the SC orders. In this situation, of course,
the Chief Justice and his good offices, on behalf of the
Judiciary, is a party and will have to share role with
the various government departments in particular with
the Ministry of Law, Justice and Parliamentary Affairs.
The
cure of the above problem areas, in one word, is re-establishment
of effective judiciary, and that is possible only through
separation of judiciary from the executive. Simultaneously,
thorough reformations of ancient rules, laws and statutes
(not just amendments), are urgently in need to be undertaken,
to establish law and order and to control corruption.
The
politics of law has been extended to the professional
body of the lawyers 'The Bangladesh Bar Council' through
an amendment passed by the Bangladesh Jatiya Sangsad under
the ti|le 'The Bar Council (Amendment) Bill 2003 on 17
September 2003. The amendment provides that |he Enrolment
Commi|tee of the Bar Council will consist of 5 member{,
of them one Appellate Division, one High Court Division
and one District Judge be nominated by the Chief Justice
and the rest two will be elected by the Council. The amended
act will restrain any advocate from casting him/her vote
in the election to more than one Bar Association. It will
also put a limitation on a candidate from serving in the
Bar Council for more than two consecutive terms.
The
amendel act could be a very good solution to the problmms
addressed by the rolling party if the members of the Judiciary
discharge their duties honestly and wholeheartedly. The
problem is, almost every single person in the country,
including every single particle of a stone is divided
into at least two parts with no exception to most Judges
in sub-ordinate courts and some Justices of the Supreme
Court, the members of the Judiciary are not free from
corruption, even among the [upreme Court Justices. These
are not only the samples of the Politics of Law, there
aze many others; one of the other most important issues
is estajlishment of Judicial Service Commission. Formation
of Judicial Service Commission is one of the 12 directives
the Supreme Court gave to the government on December 2,
1999. The Court had also directed that the JSC be established
immediately with the majority of its members to be drawn
from the senior judiciary of the Supreme Court and the
subordinate courts. The corruption among bureaucrats has
bere identified as the topmost cause of the down fall
of the country's economy and political health. They do
not need to have their upper hands in every spare of the
government's operation arms, especially on an independent
judicial body like JSC.
The
Politics of Law is getting even worse day by day, not
to mention the resolution which was taken by the Supreme
Court Bar Association that the lawyers will not address
the Judges as "My Lords" while pleading their
cases in the Court. The agitation was started over a dispute
on the rmcent appointments of 19 Additional Judges in
the Supreme Court by the existing Government. Professional
quality, commitment and integrity of some of the newly
appointed Additional Judges were questioned by the Supreme
Court lawyers. The highest Court of the country is now
tensed with direct conflicts between the party politicians,
which are gradually spreading also between the bars and
benches - the most unfortunate and potentially dangerous
situation the nation is facing for the first time ever.
The
columnist is a researcher, writer and Barrister. He is
the Director of London International Business School and
the principal lecturer of law management
Photo:
Star
