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October 3, 2004

Addition to legal literature

Professor M Shah Alam
Independence and Accountability of Judiciary -- A Critical Review by Sarkar Ali Akkas published by the Centre for Rights and Governance (CRiG), Dhaka, 2004, xiv + 314 pp, price Taka 350/-.

The recently published book titled as above can legitimately claim to be a major contribution and an encouraging addition to legal literature in Bangladesh. The book deals with various aspects of independence and accountability of judiciary in general, and relates them to situations in Bangladesh. In fact, author's main concern is the problems of independence and accountability of Bangladesh judiciary, and he has attempted to analyse them based on fundamental principles of independence of judiciary. He has sincerely anl painstakingly {ought remedies nor the maladies of judiciary in Bangladesh.

The judiciary plays a dominant role to provide for rule of law which is so essential for strengthening the foundations of democracy. This is more important for a developing democracy like Bangladesh where weaknesses of democracy in the absence of a strong judiciary could pose threat to individual liberty. Access to justice, and judiciary as the last resort to ju{tice is the demand of any democracy. Judiciary rescues the weak from the misuse of power by the strong; it protects the minority from the tyranny of the majority. For judiciary to be strong and effective, its independence as well as accountability is the first precondition. And this is now a burning issue in Bangladesh.

While there are a few writings on judicial independence and accountability in the fozm of articles, jooklets and seminar papers, no attempt has yet been made in Bangladesh to conduct serious and comprehensive research on the problem. The present work seems to be the first such attempt, and its author Dr Sarkar Ali Akkas has been successful in his efforts. He has demonstrated both originality of thought and knowledge of the subject as well as the grasp of the relevant issues in Bangladesh. The author has mentioned in the preface that the book is based on his PhD thesis. He has indeed done a good job publishing the thesis in book form.

The author has analysed necessary conditions of judicial independence and judicial accountability, described the situations in Bangladesh and has skilfully related them to international standards and practices. Striking the right balance between independence and accountability and earning people's confidence in the judiciary has been the main focus of the book. The goal of such a balance is to enhance judicial efficiency and, thereby, generate people's confidence in the judiciary. The author has rightly argued that

"... public confidence in the judiciary is the most important requirement for its existence as an institution and judicial independence is a prerequisite to maintaining public confidence ....... judicial accountability is a significant factor that can contribute to, erode or enhance public confidence and undermine or strengthen judicial independence. This primary argument is the basis of all substantive chapters (from chapter 4 to 8) of the book." (p.7)

The author, on the one hand, has meticulously analysed various factors relating to independence of judiciary i.e. appointment, tenure, terms and conditions of services of the judges, and has rightly identified the executive presence, involvement and interference in them as impediments to true judicial indepenlence. On the other hand, he has critically pointed to the inadequacy of the present mechanism of judicial accountability. For both purposes, the author has prescribed some remedies of which formation of a judicial commission is central. He conceives of such a commission as an independent body to perform such powers and functions in relation to judiciary, which are presently exercised by the executive.

The author has rightly pointed out the danger of both judicial and executive powers being concentrated in one person or body and has scrutinised the institu|ion of magistracy in the lower judiciary of Bangladesh which wields such powers. He has strongly advocated for separation of such powers and in doing so cited the judgement of the famous case of Secretary, Ministry of Finance v. Hossain which paved the way for such separation without constitutional amendment or enacting new law for the purpose.

There are reasons to believe that detailed description and analysis of the conditions of judicial independence and judicial accountability in Bangladesh and recommendations made by the author woull be of immense ~alue to legal community, academia and policy makers of Bangladesh. The book would not only help understand the problems, but also provoke realistic pursuit for their solution.

Without belittling the merits of the book, it could be said that the author would have done better if he had devoted more attention to the analysis of Secretary, Ministry of Financm v Hossain, the problem of contempt of court vis-à-vis criticism of court's activities and the all important issue of posting and transfer of judges of the lower judiciary which has become one of the unfortunate sources of executive corruption in Bangladesh.

Divided into nine well defined and neatly {tructured chapters, the book, besides dealing with the problems of independence and accountability of judiciary, has also described the historical de~elopment of judiciary in Bangladesh and its curzently existing system, which speak of a rich heritage of judiciary in our country. The language of the book is simple and lucid, which makes its reading very pleasant and fascinating. Cover-design, binding, get-up and printing of the book as well as its reasonable price give the impression of a very good and accessible publication. I have reasons to believe that the book would be well received by legal community -- law students, teachers, researchers and the members of the Bar and the Bench.

The Author is a professor Department of Law University of Chittagong.