Vital for protecting people's rights

Nothing touches the welfare and safety of a citizen more than his sense that he can rely on the prompt administration of justice. The rule of law therefore requires that the law must be applied impartially and effectively and not in a partisan manner or arbitrarily. This can only be achieved where the courts are independent and impartial.

Judicial independence in the purest sense connotes a situation where the members of the judiciary are appointed on the basis of their competence and are able to dispense justice in accordance with their oath of office and their own sense of justice free from any influence or pressure. These requirements are important for the rule of law, if judiciary is to function effectively without any fear of reprisals and dispense justice impartially appropriate provisions should be must be made for appointment and removal to be free from political interference. 

The need for judicial independence in the dispensation of justice free from interference from other arms of the state is enshrined prominently in most written state constitutions and international conventions, such as Article 14(I) of the International Covenant on Civil and Political Rights, (ICCPR)1966, and Article 10 the Universal Declaration of Human Rights, (UDHR)1948. Since our judiciary is vested with the powers to interpret the Constitution, it is the custodian of this organic law and protector of the fundamental rights embodied in it.

In addition to national constitutional safeguards against judicial politicisation, countries in Europe, Africa and America also have supra-national mechanisms provided under the European Convention on Human Rights 1950, African Charter of Peoples' Rights 1982, and American Convention on Human Rights 1969, which buttress judicial independence against executive or other encroachments. 

The rule of law requires the exercise of restraint on part of the executive as well as the recognition of the pre-dominance of law, binding all equally and with an obligation of state organs to observe established constitutional principles. In Bangladesh, though Article 94 of the Constitution directs that the Chief Justice and other judges " shall be independent" the Constitution expressly requires the state to ensure separation of the judiciary from the executive (Article 22).

In determining a nation's rank as a civilised political society, no test is more decisive than the degree to which justice as defined by law is actually realised in its judicial administration. Only a judiciary that is both institutionally and functionally free from fear or favour in the dispensation of justice can ensure the realisation justice.

INSTITUTIONAL INDEPENDENCE

Institutional independence of the judiciary relates to the office of the judge while functional independence relates to the duties of the judge. For the judges to be independent and impartial in the dispensation of justice they must be free from any threat of insecurity which can compromise their independence and quality of justice. Therefore, the laws concerning their appointment and tenure of office, power of transfer and removal from office need to be clearly defined and strictly regulated so as to alleviate potential abuse or capricious use of powers by the executive. The high purpose for which the judiciary is established cannot be realised where there is lack of probity and freedom in the exercise of their functions. The existence of those necessary qualities depends in large measure upon the methods by which the judges are selected.

The means of appointment of the members of the judiciary is of paramount importance and should be done through some established system. In England, before appointing a judge the Lord Chancellor's office consults not only other judges but senior members of the Bar and others who may be in a position to provide reliable information regarding the professional performance, integrity and confidence of a prospective candidate for judicial office. In the United States judges have to undergo strict scrutiny by the Senate Judiciary Committee who evaluate and ensure that the candidate possessed the necessary qualifications and competence for the post of a judge and their career and personal life can stand up to public scrutiny and earn public confidence.

As judges in Bangladesh are appointed not from a list of jurists with high legal acumen, integrity and independence prepared by an independent board or council, but at the discretion of the executive, favouritism and party political considerations can also influencer the appointment of judges. In the worst scenario, partisanship or politicisation of the judiciary through appointment can be deployed under this system which can undermine the independence and integrity of the judiciary. There is wide consensus that a law should be enacted to prescribe the process for appointment of judges. The lack of the existence of a proper appointing procedure for judges, Bangladesh has exposed the institutional aspect of the independence of the judiciary to potential abuse. 

Although under Article 95 the qualification requirements are expressly stated and is expressly provided for other qualifications to be prescribed by law, has not as yet been enacted for this purpose. Nor is there an institutional mechanism established for carrying out an objective assessment of the suitability and competence of a candidate and, therefore, of a proper evaluation of a prospective candidate for appointment to the high office of a judge is not under the current system.

Article 96 provided that a Judge can only be removed by the President after the judicial council (comprising of the Chief Justice and the two next senior judges) reports to the President after enquiry that in its opinion the judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct. Article 96 was amended by the Sixteenth Amendment enacted in 2014 which provided for removal by impeachment, through adoption by Parliament of a resolution supported by a majority of two-third of the total number of members. This enactment was held to be unconstitutional by a judgment of the High Court Division, which is at present the subject matter of a pending appeal in the Appellate Division.

FUNCTIONAL INDEPENDENCE

It is through ensuring independence of judges that the judiciary derives its legitimacy and continues to enjoy the confidence of the public in the administration of justice. Article 94(4) of the Constitution stipulates that "subject to the provisions of this constitution, the Chief Justice and other judges shall be independent in the exercise of their judicial functions". Thus the independence of the judiciary in Bangladesh is expressly declared and forms a basic pillar of the Constitution. Judges must not be seen to represent either the government or the interests of any particular group or individual, or be partisan. When that happens the judiciary loses its independence and public confidence in the administration of justice begins to suffer. 

Under our current practice of appointing judges from the list of candidates recommended by the government there is no guarantee for the principles of functional independence of the judiciary. Such unfortunate scenarios are however, rare in other jurisdictions where failures in national systems are checked through supra-national regional mechanisms. In the case of Peiasack vs. Belgium 1982, the Europe Court of Human Rights held that Article 6(1) principle of "independent and impartial tribunal" (court) had been violated by the appointment a person previously working in the prosecution office to try the same case as a judge.

Further, the absence of an effective administration system for the judiciary coupled with the lack of a system for the management of the caseloads, allows excessive control over case processing by lawyers and litigants. With regard to the lower tier of the judiciary, the mode of the appointment and the training of the members of the lower judiciary are critically important to ensure the independence provided for.

The judiciary depends for its effectiveness on the public confidence that it enjoys. This was eloquently expressed by a distinguished US Supreme Court Justice, William O'Douglas, as follows:

"The judiciary has no army or police force to execute its mandates or compel obedience to its decrees. It has no control over the purse strings of government. Those two historical sources of power rest in other hands. The strength of the judiciary is in the command it has over the hearts and minds of men. That respect and prestige are the product of innumerable judgments and decrees, a mosaic built from the multitude of cases decided. Respect and prestige do not grow suddenly they are the products of time and experience. But they flourish when judges are independent and courageous."

To earn public confidence judges must, in the last analysis, have the moral and intellectual fibre which must sustain their own spirit of judicial independence.

In the absence of a functionally independent judiciary there can be no guarantee for the Rule of law in the country or protection of the citizens' fundamental rights enshrined in the Constitution.

The writer is Senior Advocate, Supreme Court of Bangladesh, an eminent jurist and one of the architects of the Constitution of Bangladesh.