Star law analysis
Separation of judiciary, Masder Hossain case and Anti-corruption commission: Myth or reality?
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. 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- led by Sheikh Hasina, Justice Latifur Rahman and Khaleda Zia 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? 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? What can the court do if the government, one after another, continues flouting the decision of the highest court? Contempt? What will happen after contempt if the government remains firm on its decision not to implement? 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. True it is that 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 party 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.
Lower Judiciary
An acute dependency syndrome in Magistrates' Courts: The executive poodle: Justice hand-cuffed
The dependency syndrome of the subordinate judiciary particularly the magistrates' courts is the main problem in ensuring independence and separation of the lower judiciary and combating corruption. According to the Rules of Business of the Government criminal justice is vested in Prime Minister's Cabinet Division. 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 Cabinet Division, Ministry of Establishment and the Ministry of Home 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.
Why Separation denied?
The main reason for not separating judiciary from the clutches of the executive is the colonial type of vested interest of the criminal justice at the hand of the executive. The breeding ground of corruption in the country lies in this dependency syndrome of the magistracy with the executive and highly politicised judiciary in general. It is because of this syndrome that all heinous crimes and corruption can easily be hided and escaped with the interference of the party in power. It is widely accepted that the core of our corruption is situated at the nucleus of the government, regardless of the party in power. There is no point of seeing any light of uprooting corruption by the newly established Anti Corruption Commission. The Commission has the jaw but not the teeth. Its mandate is limited to investigation and framing of charges; it does not have any power to prosecute anyone. The main task of prosecuting will be done by the judiciary. And when that judiciary is run, administered and dominated by the executive, there is no way to think that the any anti-corruption commission will be able to combat corruption. In the long past the anti-corruption bureau has framed charges against hundreds of individuals, but few convictions could be procured. Many of the cases have been withdrawn by executive order while the rest of them have been outright quashed by the higher court, apparently due to the absence of merit. And such absence of merit was tactically created as the whole process of investigation was interfered by the executive. Thus an anti-corruption commission will remain a toothless tiger unless the judiciary is separated from the clutches of the executive.
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 Consti-tution 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 an advocate of Supreme Court, Bangladesh.
