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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 258
October 14, 2006

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Apex court ruling on separation of judiciary

A case of enforcer becoming violator

M. Rafiqul Islam

The lower judiciary has unequivocal constitutional mandate for its independence under Articles 109, 115, 116 and116A. Yet the executive asserts almost unfettered control over the lower judiciary, especially the magistracy, which enjoys little independence in performing judicial functions. The validity of the exercise of exclusive executive control over the lower judiciary was first challenged in 1996. The Supreme Court in Aftabuddin v Bangladesh (996) 48 DLR,1 held that the requirement for consultation under Article 116 of the Constitution is mandatory and it is applicable to the posting and promotion of magistrates exercising judicial functions. The court further added that instances of past omissions to consult could not cure the unconstitutionality of these postings and promotions. In defiance of these constitutional and judicial dictums, the executive continues to exercise its powers without consulting the Supreme Court. The issue appeared again before the HCD in Idrisur Rahman v Shahiduddin Ahmed (1999)19 BLD, 291. The Court held the appointment of a metropolitan magistrate illegal and violation of the requirements of Article 116 of the Constitution for want of consultation with the Supreme Court.

Under Article 115 of the 1972 original Constitution, the President had to appoint district judges on the recommendation of the Supreme Court. Other lower judicial appointments were made in accordance with rules promulgated by the President in consultation with the Public Service Commission and the Supreme Court. The highest court thus had a crucial role in appointing district judges and framing rules for the appointments in the subordinate courts. The continuation of this role of the higher judiciary could have contributed significantly to the independence of the lower judiciary. Unfortunately this safeguard, removed by the fourth amendment to the Constitution in 1975, is yet to be restored. Article 115 still requires the President to make lower judicial appointments “in accordance with rules made by him in that behalf”. No such rules have been made to date. Instead, the executive treats the appointments in the lower judiciary equally with that of other cadre services of the Republic.

In 1995, some 440 judges of the subordinate judiciary filed a writ petition with the HCD for the separation of judiciary. Their principal grievance was the amalgamation of the judiciary with the other 13 cadre services. The HCD in May 1997 declared the Bangladesh Civil Service (Reorganisation) Order 1980 ultra vires to the Constitution and mentioned that the inclusion of the judicial service as Bangladesh civil service (judicial) in the designated cadres was fundamentally flawed and misconceived. The HCD's observations were premised on the grounds that the judicial service has been separately recognised and defined in Article 152(1) and treated separately in Articles 115, 116 and 116A of the Constitution. This service could not be mixed with other public services provided in Article 133 of the Constitution. There is no scope to treat the judicial service equally with other non-judicial services and Article 133 cannot be invoked for appointing judicial officers. The judiciary and its officers are dissimilar to other government cadre services and this dissimilarity warrants differential treatment and separate arrangement for them. The HCD underscored the need to separate the judiciary from the executive and ordered the government to effect this separation: Secretary Ministry of Finance v Masdar Hossain (2000) 52 DLR, 94-108.

The government appealed before the AD and the verdict came in December 1999. The AD partly upheld the original judgment but took a firmer stand on the separation issue. The AD completely concurred with the HCD on the unconstitutionality of the Order, 1980. The AD declared that the Bangladesh Civil Service Recruitment Rules 1981 were inapplicable to the judicial service. It formulated 12-point directives, the implementation of which would result in the virtual separation of the judiciary from the executive. Prominent of these points inclusively include: (a) the establishment of the Judicial Service Commission with majority of members to be recruited on merits from senior judges of higher and lower judiciary; (b) rules are to be made to comply with the requirements of Article 115 of the Constitution for the control and discipline of the judicial officers giving primacy of the Supreme Court over the executive in that behalf; and (c) the establishment of the Judicial Pay Commission to ensure the financial independence of the judiciary.

The government accepted the issue of financial independence but again lodged a review petition with the AD opposing the establishment of the Judicial Service Commission and the Judicial Pay Commission. In June 2001, the AD rejected the review petition and reconfirmed its previous decision. It did not contradict the findings of the HCD that the separation of the judiciary can be achieved under the existing constitutional arrangement without any amendments. Nonetheless, the AD observed that the Constitution can be amended “to make the separation more meaningful, pronounced, effective and complete” if Parliament so wishes. Instead of implementing the rulings of the Supreme Court within the stipulated time, the government has apparently opted to frustrate the process of the separation of the judiciary by a delaying tactics.

The government is yet to implement the 12-point directives of the apex court for the separation of the judiciary. An implementation bill prepared by the government is yet to be debated in the relevant Parliamentary Standing Committee and Parliament. Recently in July 2006, a legal challenge alleging anomalies and flaws of the bill before the AD has been stalled. The government sought and got further time until 12 November 2006. The current Parliament is due to be dissolved on 27 October 2006 to pave the way for the general election due to be held in January 2007. This means that the existing bill may not remain effective and a new bill may be necessary for the next Parliament to be constituted after the election. Essentially the tenure of the present government will end without separating the judiciary from the executive in total defiance of the ruling of the Supreme Court.

Whether the government inaction constitutes a contempt of court is a difficult issue. But the issue engenders a serious dilemma. If the avoidance of the Supreme Court rulings by the executive does not constitute any contempt, then similar conduct of individual should not be held offensive and contemptuous. The Contempt of Court Act 1926 as adopted in Bangladesh does not define the contempt of court, nor does it identify the acts constituting such contempt. The courts however have developed principles on the commission of this contempt. The objective of the contempt proceedings is to protect the dignity of the court: Onish v Dulla Mia, 1969 AIR 214. The responsibility to uphold this dignity is conferred primarily on the executive in that it is the State that should uphold the dignity and authority of the judiciary: State v Abdur Rashid, 1964 PLD Dacca 241. The Supreme Court in Moazzem Hossain v State (1983)35 DLR, 290 also held that contempt may be constituted by any conduct that brings authority of the court into disrespect or disregards or undermines its dignity and prestige. To the court, the essence of contempt is an action or inaction amounting to an interference with or to obstruct due administration of justice. In Abdul Karim Sarkar v The State, (1986)38 DLR AD, 188, the Supreme Court held that the executive branch of the government would not be allowed to attack and deface the honour, dignity, majesty, and independence of the judiciary of the State. The legal position of the inaction on the part of the executive public servants has been specifically stated in Southern Fisheries Ranong Coprs v Kingfisheries Industry Ltd, (1982)34 DLR 1982 as follows: “Public servants like any other citizen are not only duty bound to obey the law and the orders of the Court but it is their constitutional obligation to do so, inasmuch as the Constitution enjoins upon all authorities, executive and judicial in the Republic, to act in aid of the Supreme Court” (p. 23).

The very essence of the law of contempt is to preserve the public confidence in the judiciary: Abdul Mannan v State, (1977)29 DLR 311. The public will feel less secure and confident in judicial verdicts if the judiciary's supposed protector, the government, emerges as its violator. The continuous avoidance of the rulings of the Supreme Court by the executive has considerably eroded the integrity and prestige of, and public confidence in, the judiciary. On the face of the presence of persuasive elements of a contempt action against the executive, it is extremely difficult for the Supreme Court to initiate such a proceeding. Even if it is conceded that it is possible, judges can come to an affirmative decision only at their own peril and it is very likely that they will excuse themselves by feeling embarrass as they did in the Bangabandhu murder case.

This is not to suggest that mounting such a contempt action would purely be a wasteful academic exercise. Such contempt action by the Court in the interest of justice and as the guardian of the people's rights would draw the attention of national and international communities towards the marginalised plight of the judiciary in the hands of the autocratic executive. It will galvanise further public support for the separation of the judiciary and exert tremendous pressure on the executive to adhere to the ruling.

The separation of the judiciary from the executive is a pre-requisite for judicial independence. It is long overdue and should be accomplished immediately for the sake of restoring credibility in the justice system of Bangladesh. The political dimension of the current legal stand-off divulges the reasons for executive unwillingness in rendering the judiciary independent. Through its controlling authority over the judiciary, the executive enjoys immunity and impunity for its illegal and unconstitutional acts. An unprecedented scale of violation of human rights under the incumbent government has generated widespread concern, both nationally and internationally. It has too much to loose by the creation of an independent judiciary. It is this quest for an all-powerful executive and its dogmatic pursuit of political expedition that stultifies the implementation of the apex court ruling on the separation of the judiciary in Bangladesh.

The author is a Professor of Law and the Dean of the Division of Law, Macquarie University, Sydney, Australia.


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