Star
Law Opinion
Separation
of Judiciary
The
Judgment in Masder Hossain Case, 1999: How long will it
be a matter of pull and haul?
Barrister
Md. Abdul Halim
It
has been more than five years since the historic judgment
in Masder Hossain's case, popularly known as 'separation
of judiciary' was pronounced in December 2, 1999 by the
Appellate Division of the Supreme Court. The Court directed
the Government to implement its 12-point directives to
separate judiciary from the clutches of the executive.
In these long period three governments- respectively have
sought extensions of times on one pretext or other as
many as 18 times to implement the directives. Back in
November 2004 the Government sought for four months time,
which was allowed by the Court. However, on November 29,
2004 the Appellate Division had to issue a show cause
notice to nine Government officials to explain why they
would not be prosecuted for contempt of court for distorting
the judgment of the court and the rules approved by the
court for separation of judiciary. On 16th April, 2005
the matter came up once again for the court to see the
progress of the government with regard to the implementation
and to hear the contempt of those nine officials. The
Government asked for another four months extension. However,
the court extended time again till 17th October. But the
question is how long will this tactics of time extension
continue? How long will be a judgment of the Supreme Court
matter of pull and haul at the hand of government? Apart
from this delaying tactics, in very recent past a statement
from governmental level pointed out that the separation
of judiciary was not a popular demand and the government
may go for a referendum on this issue. When such a statement
is posed from the Governmental level the legitimacy of
the judgment of the apex court itself comes under attack.
What could be the reason behind such delaying tactics
and policy statement?
The
reason lies, as I wrote back in 1998, with some provisions
in the original constitution of Bangladesh regarding the
dependency syndrome of the subordinate judiciary which
has left the idea of separation of judiciary largely a
policy matter rather than judicial determination. Under
the express wording in article 112 of the constitution
all authorities, executive and judicial, in the Republic
shall act in aid of the Supreme Court. But when the Government
states that separation of judiciary is largely a policy
matter; again it reiterates that it will implement the
judgment today or tomorrow what can the apex court do?
How long the arms of the apex court could go to catch
the wrongdoer or someone who is not obeying the judgment
of the court or undergoing delaying tactics? True it is
that the Supreme Court of a country cannot modify the
course of history; neither can it catch hold of and throttle
someone who is disobeying its decision; it can only pronounce
judgments and refer to the other departments of the government
to execute it; if the executive disobeys its decision,
it can at best contempt someone but it does lack any real
stick to beat the executive. The machineries of democracy
are not supposed to run in that hostile manner; they are
built on the concept of check and balance and this balance
is provided for in article 112 of the constitution as
far as the implementation of the Supreme Court's decision
is concerned which the executive must bear in mind. If
the executive flouts the decision of the apex court so
will do the beneficiaries of political parties leading
the country into a land of politico-legal anarchy. The
judgment in Masder Hossain case by the Supreme Court to
direct the government to separate judiciary is not something
like a bolt from the blue. Since independence almost every
mainstream political parties made pre-election pledge
that if voted to power, they would separate judiciary
from the executive but every government has betrayed with
their pledge to this effect. It is pledged in article
22 of the constitution that State shall ensure the separation
of the judiciary from the executive. Every Prime Minister
and Minister takes their oath of office that they will
preserve, protect and defend the constitution though the
irony is that they quickly forget their pledge leaving
behind the poor litigants in an endless suffering. How
long will the people have to wait see the judiciary separate?
In line with the spirit in the part of the 'Directive
Principles' of the constitution both India and Pakistan
have completed the task of separation of the judiciary
long ago compared to us. 33 years have passed since we
achieved our independence. If we still vaunt in a colonial
mastery to ourselves- "what will the court do if
we do not separate the judiciary?", will there be
any merciful mystery angel to complete the task for us?
Lower
judiciary: An acute dependency syndrome in Magistrates'
Courts
Let
me get back to the concept of dependency syndrome of the
subordinate judiciary particularly the magistrates' courts,
which is the main problem in ensuring independence and
separation of the lower judiciary.
Three
tires of Magistrates' Courts, i.e. 3rd Class, 2nd Class
and 1st Class Magistrates' Courts- all these are the courts
of first instance for criminal cases. Given that criminal
cases filed in a year are far greater in number compared
to the number of civil cases, these criminal courts have
a great potential in shaping the base of our legal system.
However, unfortunately for reasons, principally, of some
legal shortcomings these courts are playing negative role
at a greater extent frustrating the very purpose of criminal
justice. The shortcomings are as follows:
i)
All magistrates are linked with the executive functionaries.
Magistrates are discharging dual functions- judicial and
executive. They are controlled by the Ministry of Establishment,
the Ministry of Home Affairs and also the Ministry of
Law, Justice and Parliamentary Affairs. In discharging
their judicial functions they are very often dictated
and influenced by the executive. As a result, they cannot
independently discharge their judicial functions. It is
impossible for a judge to take a wholly independent view
of the case he is trying, if he feels himself to any extent
interested in or responsible for the success of one side
or the other. It is equally impossible for him to take
an independent view of the case before him if he knows
that his posting, promotion and prospects generally depend
on his pleasing the executive hand.
ii)
Magistrates who discharge judicial functions are never
appointed from persons with legal background. It is sometimes
impossible to expect justice from a person who has no
institutional legal education. Being administrative first
class officers magistrates sometimes do not care abusing
their power. This is mostly the case because, firstly,
they are taking the opportunity of illiteracy and ignorance
of law of mass litigants and secondly, there is inherent
lack of administrative check and balance in magistracy
and thirdly, they are not under any administrative control
of the Supreme Court.
iii)
In almost all magistrates' courts bribes are now-a-days
openly claimed as a matter of right. Anyone defaulting
has to pay a price at his cost. In magistrates' courts
bail depends not on law but on the amount of bribes.
The
main crux of the problem of separation of judiciary lies
in the magistrates' courts. Ensuring justice and independence
of judiciary will remain a far cry until magistrates'
courts are separated from the executive. The dual function
of magistrates and also the dependency of the lower judiciary
upon the executive is a legacy of the British rule. During
the very British days there was a demand for the separation
of judiciary from the executive. The British administration
did not make this separation thinking that separation
might go against their colonial interest. After independence
in 1947 though some positive steps were taken, eventually
they were not implemented.
In
our new constitution adopted in 1972 it was provided in
article 22 that "the state shall ensure the separation
of judiciary from the executive organ". In article
116 the term "magistrates exercising judicial functions"
have been used. Dr. Kamal Hossain the chairman of the
Constitution drafting committee stated that by the term
'magistrates exercising judicial function' the constitution
makers wanted to mean judicial type of magistrates and
after the constitution was given effect everybody took
this term for judicial type of magistrates but the government
did not separate them. Ultimately the matter of judiciary
separation came as a judicial determining factor before
the Supreme Court in much-talked Masder Hossain
case.
Conclusion:
In the Masder Hossain case as mentioned above the executive
has been ordered to undertake the task of overhauling
the whole lower judiciary with two big commissions- Judicial
Service Commission and Judicial Pay Commission which is
certainly a matter of policy rather than a dispute. However,
there are strong evidences to show that our Supreme Court
has dealt with policy matter under the paradigm of 'judicial
review' or the doctrine of 'basic structure' of the constitution
as we saw it in the celebrated 8th Amendment Case and
this is not something unsupported by the constitutional
arrangement. It is true that except appointing the Prime
Minister and the Chief Justice the President has to exercise
every function in consultation with the Prime Minister.
However, a harmonious construction of articles 114, 115,
116 and 116A of the Constitution will give a necessary
idea that in the matter of subordinate judiciary the policy
matter has not been left to the sweet will of the parliament
or the president alone; the executive has to exercise
its power in consultation with the Supreme Court in this
sphere. Under article 115 appointments in the subordinate
judiciary are to be made as per rules made by the President;
article 116 envisages that control and discipline of the
subordinate judiciary have to be exercised in consultation
with the Supreme Court; and article 116A envisages the
independence of the judicial officials and magistrates.
Given this integrated scheme as designated in these articles
if the parliament or the President attempts to make law
to separate judiciary without involvement of the Supreme
Court, that law will certainly come under judicial attack.
The task of separation of lower judiciary is thus a shared
responsibility of the executive, legislative and judiciary
as envisaged in articles 114 - 116A of the constitution
and therefore the government cannot claim it as a sole
executive or legislative policy prerogative. The best
course for the government therefore would be to implement
the judgment of the Masder Hossain case without resorting
to any delaying tactics on the ground of policy matter
or public demand.
The
author is Barrister at law and advocate, Supreme Court
of Bangladesh.
