A dream too far

The judiciary is yet to be allowed to have the independence offered by the original constitution 45 years ago, making the idea of nurturing judicial freedom further a hollow promise.

There is no move on the government's side to restore the provision of the constitution of 1972 with regard to the independence of the judiciary. Thus the aspiration for a fully independent judiciary will remain unmet for an indefinite period.

In such a situation, the government's claim that the Supreme Court's latest verdict scrapping the 16th constitutional amendment proves that the judiciary is independent does not tell the whole truth.  

Bangladesh ranked 103 out of 113 countries in the rule of law index of 2016 released by the World Justice Project. The poor ranking is indicative of the deficiency in the independence of judiciary as well as the sorry state of the rule of law in our country.  

An independent judiciary is regarded as the hallmarks of good governance, rule of law and the sought-after goal of separation of powers of the state organs.

The framers of our constitution had envisioned an independent judiciary free from the control of the executive branch of the government. 

Separation of the judiciary is one of the fundamental principles of the state policy and independence of the judiciary is one of the basic tenets of the constitution enacted in 1972.

Considered a result of the Liberation War, the constitution, in article 22, clearly says: "The State shall ensure the separation of the judiciary from the executive organs of the State."

The SC had been empowered to have full control over all courts and tribunals subordinate to it.

But things went in the opposite direction. Independence of the judiciary has been undermined on several occasions since 1975 through constitutional amendments. During the two martial law regimes, independence of the judiciary has been compromised even more.

The judiciary has officially been separated from the executive branch of the government only in 2007 following a SC verdict. It took 35 years to do the job. And it was done by a non-partisan caretaker government.

Yet, an effective separation of the judiciary has not been possible. It is because of the changes in the original provisions of the constitution regarding the apex court's controlling power over the lower courts.

The original article 116 had empowered the SC to control the lower judiciary by controlling postings, promotions and granting of leave, and disciplining persons employed in the judicial service, and magistrates' exercising judicial functions.

The SC had also a major role to play regarding appointments to the lower judiciary as article 115 of the original 1972 constitution stipulated that district judges would be appointed by the president on recommendation of the SC.

All other civil judges and magistrates exercising judicial functions were supposed to be appointed by the president in accordance with the rules made by himself or herself in consultation with the Public Service Commission and the SC, according to the original article 115.

But the fourth amendment to the constitution, passed in 1975, brought about drastic changes to the articles.

The amendment vested the power of control over the lower judiciary in the president, who was also empowered to make the appointments, in effect allowing the executive branch to control the lower judiciary.

Subsequently, the martial law regime led by General Ziaur Rahman in 1978 amended article 116 through a martial law regulation, making the provision that the SC would be consulted by the president to exercise the power to control and discipline the lower courts.

The provision introduced by the martial law regime was retained in the constitution's 15th amendment in 2011.

But the powers vested in the president are, however, exercised by the prime minister, though indirectly. The reason behind it is simple. Since the restoration of parliamentary democracy in 1991, the president has had to carry out all his functions on the advice of the prime minister, the exception being appointing the premier and the chief justice.

This situation allows the government to retain powers to control the lower courts despite an official separation of judiciary from executive branch around 10 years ago.

In exercise of the above powers, the government has delayed issuing a gazette notification finalising the rules outlining the job disciplines for lower court judges. 

The SC on several occasions urged, futilely, the government to restore the provisions of the original constitution of 1972 for an effective separation of the judiciary from the executive.

The Supreme Court thinks, independence of the judiciary, which is one of the basic features of the constitution, will not be fully achieved unless articles 115 and 116 are restored to their original position.

We can recall what Sir Gerard Brennan, former chief justice of Australia, said: "Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of the government. It exists to serve and protect not the governors but the governed."

An independent judiciary makes the rule of law meaningful and effective. Rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small.

So, judicial independence is needed for the people, not for judiciary alone.