Wise politicians and erudite jurists have time and again observed that an independent judiciary is the very heart of a republic. This is so because the foundation of a democracy, the source of its perennial vitality, the conditions for its growth, and the hope for its welfare — all lie in that great institution, an independent judiciary. In Bangladesh, however, it has taken a painfully long time to at least formally separate the judiciary from an overbearing executive despite the constitutional commitment to do so.
That the situation on the ground has not meaningfully changed following the aforementioned separation is candidly borne out from the recent remarks of the Honourable Chief Justice when he poignantly says that the perception — judiciary a rival of the administration — is completely wrong. He had to be categorical to say that “The judiciary has never been a rival of the administration and government.” The head of our apex court hoped that the government and the administration would realise the present situation prevailing between the government and the judiciary.
The Chief Justice, as the guardian of the constitution, very rightly reminded that the boundary of functions for both a political government and the judiciary are clearly marked adding that the judiciary will interfere whenever a political government's activities will be unconstitutional.
Indeed, the media has expressed its concern over the supposedly uneasy relationship between the judiciary and the executive by observing that alleged tactics such as delay in promotion, posting and transfer of district judges and not issuing the gazette on the rules of determining the discipline and conduct of lower judges are subverting the process of separation of the judiciary. It rightly adds that the absence of effective separation will surely hinder the proper functioning of the judicial organ.
At this point in time, we need to remind ourselves that independence of judiciary is a basic feature of our constitution, and separation of powers, as contemplated under article 22 of the constitution, is a sine qua non for such independence. However, though the constitution required separation of the judiciary from the executive, no step whatsoever was taken by the legislative or executive branch of the government and in such a situation the Appellate Division gave direction to Parliament and to the President to enact laws and promulgate rules in terms of article 115 and 133 of the constitution to give effect to the policy enunciated in article 22 of the constitution.
We have to remember that the judiciary is that branch of the State which adjudicates upon conflicts between State institutions, between State and individual, and between individuals. The judiciary is independent of both parliament and the executive. In fact, it is this feature of judicial independence which is of prime importance both in relation to government according to law and in the protection of liberty of the citizen against the executive. In this distinct and separate existence of the judicial power reposes the main preservative of public liberty. Such liberty cannot subsist long in any State unless the administration of justice is effectively separated from the legislative and from the executive power.
It is perhaps time to ponder if we are unwittingly devaluing our judiciary. It is also pertinent to ask if instead of defending our judges against political pressures, instead of insisting upon integrity and impartiality in judicial appointments, we are permitting the executive to enunciate and apply the astounding doctrine that it is at liberty to appoint personnel who “subscribe to the philosophy of the ruling party.”
One would agree that specifically relevant to the position of judges and their independence — a crucial aspect of the separation of powers — is the appointment system. The fact that the executive appoints judges does not, of itself, signify a threat to judicial independence. Nevertheless, judicial independence may be threatened by a judge's awareness of the power the executive holds over his or her judicial career. It is only proper to recognise that at the root of the subject of judicial independence and public confidence in the impartiality of the judiciary, lies the system of appointments and promotions.
There is no denying that the judiciary, as the conflict resolution mechanism in a democratic polity, needs to be upright and unfettered. There is wisdom and circumspection in the speech of Pandit Jawarharlal Nehru when on May 24, 1949 he stated in the Constituent Assembly that our judges should be “first-rate” men of “the highest integrity” who could “stand up against the executive government and whoever may come in their way.”
The writer is a former IGP and a columnist of The Daily Star.