The independence of the Judiciary is one of the basic structures of our Constitution. The development of democratic and just society is overwhelmingly dependent on an independent and impartial Judiciary. The perception of judicial independence is essentially interlinked with judicial accountability and the former can be enhanced by ensuring proper and balanced utilisation of the latter. Compared to the other two organs of the State, the Judiciary deserves special consideration, specially in the context where political culture is not expectedly firm. Therefore, the judicial accountability is not the same as the accountability of the Executive or the Legislature, or any other public institutions. Former Chief Justice of Bangladesh Mr. Mostafa Kamal rightly asserted in the landmark Masdar Hossain case that 'functionally and structurally judicial service stands on a different level from the civil administrative executive services of the Republic'.
The political culture in Bangladesh is under development and yet to attain maturity. Since our independence, this has been deteriorating day by day creating politically sectoral society. In such a situation, an independent Judiciary is expected to play a crucial role for protecting the victims from the political grudge of the State authority. The judicial independence and accountability in Bangladesh is a much talked issue ranging from apex court to lower tier. Discipline of judges, one of the forms of judicial accountability, is often used as a tool for controlling the Judiciary and the attitudes of the Legislature and the Executive are found to be questionable in this regard.
As the present Chief Justice very often argues, the present format of 'dual rule' by the Executive and the Judiciary causes major hindrance to the proper functioning of the Judiciary. He is in favour of lessening up Executive's interference over the lower Judiciary.
Article 116 of the Constitution authorises the President to have control over the disciplinary matters of the persons employed in the judicial service and magistrates exercising judicial functions. While exercising this power, the President is under a constitutional obligation to consult with the Supreme Court. On behalf of the President, the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs, is the de facto authority to bring disciplinary motions against any judge of the lower courts as per the Government Servants (Discipline and Appeal) Rules 1985. Final decision in this regard is effected by an Order of the President after consultation with the Supreme Court. Hence, in principle and practice the Executive is the primary body to exercise disciplinary jurisdictions over the judges of lower judiciary. The result of which inflicts blow on the idea of separation of powers and judicial independence.
The Executive in Bangladesh always tends to manipulate the Judiciary by keeping it under tight fist. Such an attitude of the Executive became more evident when an unelected authority, i.e. the 2007 Non Party Caretaker Government, had to take initiatives in line with the directions of the Masdar Hossain case to comply with the constitutional mandate of separating Judiciary from the Executive. All happened against strong opposition from the then members of the administration.
Nevertheless, judicial powers in few cases were again vested in the hands of the members of the administration by the subsequent elected political governments. Establishment of the Mobile Courts and Executive Magistrate's Courts are such instances. In the guise of accountability, however, the Executive has unduly been utilising the disciplinary power against the judges keeping them under constant danger of initiation of departmental proceedings. On 26 February 2017, the High Court Division questioned the constitutionality of President's power to control the lower judiciary as it has already been seen that President generally acts on advice from the Prime Minister under article 48 (3) of the Constitution.
The 16th amendment of the Constitution has also inflicted a blow on the independent image of the higher Judiciary by incorporating disciplinary mechanism into the jurisdiction of the Parliament. The High Court Division has already scrapped the 16th amendment declaring it incompatible with the notion of judicial independence. The government has also moved an appeal before the Appellate Division against the decision and we have to now wait to see the future of the higher Judiciary.
The write is an Assistant Professor of Law, University of Asia Pacific.