Law Alter Views
Apex court ruling on separation of judiciary
A case of enforcer becoming violator
Professor M Rafiqul Islam
The enforcement of successive rulings of the Supreme Court for the separation of the judiciary from the executive remains as elusive as ever. In May 1997 in Secretary Ministry of Finance v Masdar Hossain, the Supreme Court issued a binding directive to the government to effect the separation of the judiciary as required by the Constitution within eight weeks. This landmark decision was upheld on appeal in November 2000 and reconfirmed upon revision in June 2001. The Court even worked out the procedures for such separation, which could be implemented without any constitutional amendment. These rulings have gone unheeded by the government through the tactics of procrastination. It has persistently been seeking and receiving time extensions for implementation, most recently on 27 July 2006, the 23rd such extension, showing no sign of compliance. Hearing has now been adjourned until 12 November 2006. The government is legally bound to implement the decisions of the Supreme Court under Articles 102 and 112 of the Constitution. The incumbent government's posture on the implementation of these rulings seemingly undermines its constitutional obligation and pre-2002 election pledge that it, if elected, would separate the judiciary within the first 100 days in office. This non-compliance has caused an extra-ordinary public confidence crisis in the independence of the judiciary, a cornerstone of the Constitution under its Article 22.
The Constitution of Bangladesh expressly provides judicial independence under Article 22, imposing a specific obligation for the separation of the judiciary from the executive. This constitutional scheme of separation is designed to afford the judiciary the maximum possible independence in order to perform its responsibilities efficiently. The Constitution has made the judiciary a medium for the exercise of the judicial power of the people on behalf of the people, who will always remain the focal point of judicial concern: Mohiuddin Farooq v Government of Bangladesh (1997) 49 DLR AD,1. The overarching goal of judicial independence has overtly been reflected in subsequent constitutional provisions in order to ensure its functional independence.
Article109 places all subordinate courts under the direct control and supervision of the High Court Division (HCD) of the Supreme Court. Article 115 deals with the establishment of subordinate courts and appointments of their judicial officers by the President. Ensuing Article 116 spells out how the President shall exercise this authority and make rules to that effect. It has made the exercise of this presidential authority conditional upon consultation with the Supreme Court. Article116A requires all judicial officers of subordinate courts to be independent in the exercise of their judicial functions. The operation of subordinate courts under the direct control of the constitutional system of judicial hierarchy is intended to make the former responsible and accountable to the Supreme Court, not to the executive. Therefore the compliance with the constitutional arrangement under Article 116 conferring on the President the regulatory competence over subordinate courts to be exercised in consultation with the Chief Justice would go a long way in ensuring judicial independence.
The original Constitution of 1972 devised a scheme of completely in-built independent judiciary in terms of appointment and removal of judges and their security of tenure, salaries and privileges. This scheme however underwent major changes in 1975, when the Mujib government brought the fourth amendment to the Constitution. Under the original Constitution, the authority of appointment of the Chief Justice (CJ) was bestowed on the President, but other judges were to be appointed by the President in consultation with the CJ (Art 95.1). The fourth amendment introduced the presidential form of government and authorised the President with real power to appoint judges without any consultation. The authority of these highest judicial appointments was thus vested exclusively in the realm of political power. The consultative role of the CJ in all judicial appointments by the President was a major safeguard against political and expedient appointments. Despite this change, the judges of the Supreme Court continued to be appointed in consultation with the CJ.
This consultative process has been followed so consistently since the British rule in India, even in the absence of any legal requirement, that it has become a constitutional convention in the sub-continent. The Supreme Courts of both India and Pakistan have developed persuasive judicial precedents to support the consultative link between the judiciary and the executive: S P Gupta's Case 1994 AIR SC 268 and Al-Jehad Trust v Federation of Pakistan, 1997 PLD SC 84. Despite the reintroduction of the parliamentary form of government in Bangladesh in 1991, the judiciary is yet to be fully independent as enshrined in the 1972 Constitution. The independence of the judiciary in performing its functions is hamstrung in reality by other constitutional provisions on the appointments, tenures, and terminations of judges of the Supreme Court. The determination of their service conditions continues to be controlled by the executive along the lines of its political party affiliation. As a result, the requirement of consultation with the CJ is still abandoned from the Constitution. The current status of the President as the titular head makes no difference, as he is obliged to act on the advice of the Prime Minister (Art 48.3), who exercises the real power.
The Bangladesh Nationalist Party (BNP) government for the first time ignored the unwritten constitutional convention of consultation in February 1994 by appointing nine judges to the HCD without any consultation with the CJ, who indeed objected to such method of sole executive appointment. These appointments were cancelled, followed by consultation with the CJ leading to seven out of nine appointments. Subsequent appointments however failed to comply with the convention of consultation with no recourse to redress.
The present system of judicial administration has been structured in violation of the constitutionally mandated in-built independence of the judiciary. In appointing the judges of the AD, the executive has neither acted upon the recommendation of the CJ nor disclosed the reasons for non-compliance. It implies that the executive might not have any plausible reason to disclose. Ironically, the President who did not comply with the recommendation of the CJ in appointing judges in 2001 was the same person, who opposed the appointments of nine judges in 1994 for want of consultation with the CJ. He even did not feel any need to inform the CJ of the reasons for which the recommendation could not be honoured. The consultation is a function, not discretion, of the President. The only difference in approach of the same person on two occasions is that he was the CJ in 1994 and the President in 2001. This very fact candidly suggests that the real appointing authority rests with the Prime Minister, who exercises it through the President. Such an exclusively political power oriented approach to higher judicial appointments militates against the independence of the judiciary and is likely to induce the judges to have expressed political allegiance for promotion.
Greater transparency and credibility in appointments strengthens and endures the confidence of the litigants and public in the judiciary. It is the CJ, not the President or the Prime Minister, who can efficiently and professionally judge the judges, both in case of promotion, confirmation or removal of those who have been serving directly under the CJ and in case of new appointments. A credible and dignified justice system demands such a cardinal role of the CJ. The judges of the higher courts are best suited to competently adjudge the candidature since the selections are to be made from amongst those functioning in judicial and legal sphere. This is why the constitutional convention requires the executive to consult with the CJ, whose opinion should have the primacy in the event of conflict and when the executive fails to convince the CJ otherwise. The executive in Bangladesh has scanty regards for such a role of the CJ. It has transgressed constitutional and conventional bindings on higher judicial appointments and diminished the independence of the judiciary and the public confidence on the justice system to its rock-bottom level. ...continued
The second part of the article will be published in the next issue.
The author is a professor of law and the dean of the division of law, Macquarie university, Sydney, Australia.