A collective failure
Forty-five years ago, our constitution announced emphatically that the state shall ensure the separation of the judiciary from the executive "as soon as practicable".
But even now, an effective separation of the judiciary remains a distant cry, giving the term "as soon as practicable" a new meaning.
In 1999, then Chief Justice Mustafa Kamal in the separation of the judiciary case verdict said neither the parliament nor the government nor the president took any notice of this constitutional provision that speaks of the separation of the judiciary "as soon as practicable".
Over 19 years passed after that judgment.
Framers of our constitution gave utmost priority to having an independent judiciary. Therefore, separation of the judiciary was announced as one of the fundamental principles of the state policy in article 22 of the new constitution of the independent Bangladesh.
In addition, the constitution says that the principles of the state policy shall be fundamental to the governance of the country and shall be applied in the law making.
The present state of the judiciary, however, shows things did not go according to the directions given in the constitution.
Successive governments made efforts to retain control over the judiciary. This exposes their lack of sincerity to uphold the fundamental principles of the state policy in governance and in making laws.
As there was no move to separate the judiciary, the Supreme Court finally came up with a landmark verdict in response to a writ petition filed by 441 judicial officers. This opened a new chapter of legal battle for the independence of the judiciary.
CONTEXT OF LEGAL BATTLE
HM Ershad was no different from other military dictators in dealing with the judiciary. As he grabbed the state powers by unconstitutional means, he cared little about the judiciary.
He did not pay attention to judges whose job was to establish the rule of law. He rather set up his own style of courts -- martial law tribunals which were “superior to other courts” -- to hold trials of offences under martial law regulations.
Ershad needed the bureaucrats and the military to remain in power. Therefore, he was liberal in increasing salaries and other benefits of those working in the administration. Judges, particularly those working in the lower judiciary, were neglected and discriminated.
Sometime, in 1988 or 1989, a group of judicial officers from northern districts could not accept this anymore. They drafted a resolution and sent it to the Bangladesh Judicial Services Association (BJSA) hoping for a change in the situation.
The move did not yield any results. The government hiked the salaries of administrative cadres with a new pay scale in 1989 but the pay of the judicial officers remained unchanged.
The fall of Ershad in December 1990 did not usher in much. In 1991, the pay of additional district judges was less in comparison to that of other officers of the same rank.
One of the judges posted in Khulna, as an expression of protest, stopped drawing his salary for 18 consecutive months. After the secretary of the then establishment ministry got letters after letters, a committee was formed to revisit the discrimination alleged by the judicial officers.
The committee submitted a recommendation and thereupon, on January 8, 1994, the pay scale of several judicial posts was reassessed. However, on February 28, 1994, through another gazette notification, the pay scale of only the judicial officers was brought back to its previous state.
The judicial officers again tried to draw the attention of the ministries of law, finance and establishment. The government did not pay any heed to their demands. Lower court judges started protesting in a peaceful way. They wore black badges and declared an hour-long abstention from work for two consecutive days.
This did not work.
Finally, they filed a writ petition with the High Court in 1995, known as Masder Hossain case. Masder Hossain was then secretary general of the BJSA.
OUTCOMES OF THE BATTLE
The HC came up with a landmark verdict in 1997 declaring the discrimination illegal and void and issued directives for separation of the lower judiciary from the executive in light of the constitutional provision.
The court had to pick up the issue as successive governments since the country's independence ignored it.
The then AL-government challenged the judgment. It filed an appeal with the Appellate Division of the Supreme Court.
Upholding the HC verdict, the Appellate Division in its milestone ruling in December 1999 issued a 12-point directive to the government to separate the judiciary.
The directives included formation of a separate judicial service commission to take care of the appointment, promotion and transfer of members of the judiciary in consultation with the SC and a separate judicial service pay commission, amendment to the criminal procedure and new rules for the selection and discipline of members of the judiciary.
Defeated, the government opted for buying time, like for formulation of rules and regulations to implement the judgment, until the tenure of the AL-led government ended in October, 2001.
The next BNP-led government in its five-year tenure did the same.
Both the AL- and BNP-led governments from 1999 to 2006 took time extensions more than two dozen times. It showed the governments' unwillingness to implement the apex court's verdict.
Finally, it was the caretaker government of 2007-08 that took effective steps to separate the judiciary.
In November 2007, it officially separated the judiciary from the executive based on the constitutional directive principles and the SC judgment in the Masder Hossain case.
Some rules were also made.
However, the process was not completed. Complications prevailed over issuing the gazette notification on the rules determining the discipline and code of conduct of lower court judges.
The government sent the draft rules to the SC for its opinion last year. The court revised the draft curtailing the law ministry's control over the lower judiciary and sent it back to the government for approval.
But the government was in no hurry. It had already taken several time extensions.
On December 11, the government finally issued the gazette notification, keeping the president's authority over the conduct of lower court judges.
The president would make necessary decisions in consultation with the SC, and the law ministry would implement those.
On January 1, Dr Kamal Hossain and five other leading jurists in a statement said that the lower courts have been made subordinate to the executive by three “cardinal rules”.
The independence of the judiciary has been undermined and the separation of power has been violated by the rules, they said.
The SC, however, did not agree with the jurists. On January 3, the apex court accepted the disciplinary rules. It said the rules would uphold the supremacy of the SC, and it has not lost its powers over the subordinate courts.
This means the SC must be satisfied with being only consulted with and does not want the authority given in the constitution of 1972.
HOW SC LOST POWERS
Framers of the constitution envisioned an independent judiciary by empowering the SC with the authority over appointment and control of judges working in the lower judiciary.
Article 109 of the constitution empowers the High Court, a division of the SC, to have superintendence and control over all courts and tribunals subordinate to it.
The SC had also a major role to play regarding appointments to the lower judiciary as article 115 of the 1972 constitution stipulated that district judges would be appointed by the president on the recommendation of the SC.
The article 116 had empowered the SC to control the lower judiciary by controlling postings, promotions and granting of leaves, and disciplining people employed in the judicial service, and magistrates exercising judicial functions.
But the fourth amendment to the constitution, passed in 1975, brought about drastic changes to the articles.
The amendment vested the power of control over the lower judiciary in the president, who was also empowered to make the appointments. In effect, it allowed the executive branch to control the lower judiciary.
Subsequently, the martial law regime led by General Ziaur Rahman in 1978 amended article 116 through a martial law regulation, making the provision that the SC would be consulted by the president while controlling and disciplining the lower courts.
The provision introduced by the martial law regime was retained in the constitution's 15th amendment in 2011.
But the powers vested in the president are exercised indirectly by the prime minister. The reason behind it is simple. Since the restoration of parliamentary democracy in 1991, the president has had to carry out all his functions on the advice of the prime minister, with the exception of appointing the premier and the chief justice.
This situation allows the government to retain the power to control the lower courts despite an official separation of the judiciary from the executive branch 11 years ago.
The articles 109 and 116 have also created "dual rule" in the judiciary.
RISE OF A PARALLEL JUDICIARY
The caretaker government's move to separate the judiciary irked the admin officials who would lose their judicial clout. They went on to stage demonstrations against the move in October, 2007.
In the face of strong protests, the then caretaker government had to give them some judicial powers. The then president promulgated an ordinance empowering executive magistrates to run mobile courts to maintain law and order.
It, however, allowed them to only fine individuals for an offence. That ordinance ceased to have effect in February, 2009.
The AL assuming office in early January, 2009, offered an olive branch to the admin cadres. A new ordinance was promulgated increasing the executive magistrates' power to run the mobile courts.
It empowered them to sentence offenders up to two-year imprisonment in addition to their earlier powers to impose fines.
Later, the AL-led government had given the ordinance a permanent shape by enacting the Mobile Court Act 2009 in parliament.
At the beginning, the executive magistrates running the mobile courts were empowered to hold trials of offences under a handful of laws. But over the years the number of laws has increased to around 100.
Executive magistrates running mobile courts have become an effective tool for the administration officials to gradually regain their lost judicial powers and to emerge as a parallel judiciary.
In May last year, the HC declared unconstitutional the rules under which executive magistrates run mobile courts. It said empowering executive magistrates with judicial powers is “a frontal attack on the independence of the judiciary and is violative of the theory of separation of powers”.
The government stood in support of the administrative cadres and filed an appeal with the Appellate Division against the HC verdict. The appeal remains pending.
REPEATED APPEALS BY SC WENT IN VAIN
In the Masder Hossain case verdict, the HC had observed that amendment to the constitution was not required for separation of the lower judiciary from the executive.
But the Appellate Division in one of the 12 directives issued in the appeal verdict set aside the HC's observation and spoke for amendment to the constitution for a meaningful and effective separation. It left the job on the wisdom of parliament as it could not dictate the House to amend the constitution.
Only 14 months after the official separation of the lower judiciary, the Appellate Division in a judge appointment case verdict in February 2009, said, "Until and unless the un-amended articles 115 and 116 of the constitution are restored vesting the control of the subordinate judiciary in the Supreme Court, the separation of the judiciary will remain a distant cry and a music of the distant drum."
In the full verdict of the fifth amendment case, released in July 2010, the SC referred to the observation made in 2009 and said, "It is our earnest hope that articles 115 and 116 of the constitution will be restored to their original position by the parliament as soon as possible."
In the 16th amendment verdict, the SC made similar views and spoke for restoration of the two articles.
"Unless and until articles 115 and 116 are restored to their original position, the lower judiciary will continue to remain under the sway and influence of the executive impinging upon the independence," it said.
Since the separation of the judiciary case verdict, the constitution was amended thrice by the BNP- and AL-led governments. But none of them paid any heed to the appeals made by the apex court to restore the articles of the constitution for a meaningful separation of the judiciary.
Judicial independence means the ability of courts and judges to perform their duties free from the influence or control by other actors, government or private. The constitution guarantees both the higher and lower judiciary to work independently. But how will judges in the lower courts work independently if the government retains control over them?
Framers of our constitution envisioned a truly independent judiciary. But those who ran the country over the years failed to translate the dream into reality. This is, in fact, a collective failure.