Governance Update
Separation of judiciary and its potential impact
Shah Md. Mushfiqur Rahman
Our long cherished 'separation of judiciary' is a thing of reality at last. Let us hope that this historic evolution would usher in a new era of greater judicial independence. Let us again aspire that this greater independence would enable our lower judiciary to satisfy the justice-seekers. We hail the people whose contributions culminated in this separation of judiciary from executive and at the same time let us avail ourselves of some time to think about the possible implications that may follow this separation.
Recalling the background
First, allow me to recall what really convinced us that the judiciary had to be separated from the executive. Theory, history and common sense - all these tell us that the judiciary and the executive are meant for completely separate types of business and people for these two different jobs are to be drawn from people of different orientations. The executive is responsible for proper implementation of government policy without exercising much of their own say, while judges are required to be independent in nature, guided by strong conscience, and adamant in putting justice first, no matter whatever it takes.
So, quite naturally, when an officer from the executive was vested with the power to resolve legal disputes, things were prone to malfunction. Situation got worse because of the fact that these executive officers as makeshift judges, as contrasted to career judges, did not have reason to feel the urge to learn and apply philosophy of law. That did impact the dispensation of justice to a substantial degree. Moreover, and most importantly, executive officers are more susceptible to governmental influence compared to judicial officers.
Though issues like posting, promotion, discipline etc. of judicial officers are vested to the President, the Supreme Court has a lot to do with these decisions. Things are not the same in the case of executive officers as their affairs of service are largely at the mercy of government. Consequently, their unqualified adherence to the government left them with no choice other than to come up with verdicts favorable to the government, to be more specific the political party that formed the government, in most cases.
Though a matter of debate since British period, the issue of separation of judiciary from the executive came to the fore with the judgment of Masdar Hossain Case. What started as a mere grievance regarding financial benefits evolved to an issue that touched the core of separation of judiciary. The higher judiciary seized the opportunity to its fullest to come up with two of the most acclaimed milestone judgments in the country's legal history at both tiers of the apex court. Interestingly enough, and much to the satisfaction of the lawyers' community, the highest court did not loose its leash on the implementation process of the judgment. Rather, it still holds the full control of the implementation procedure to make sure that everything is on track.
A brief look into the judgment
Popularly it is said that Masdar Hossain judgment contains 12-point directives that are vital to separation of judiciary. Indeed, the judgment contains 12-points in its directive part but all of those are not essentially framed in the form of directions that may require the government to undertake some actions of affirmative nature. Rather, most of the points deal with declarations made by the court clarifying its position on different constitutional provisions and these declarations do have the force of law.
Directive points of the operative part require the government to frame Rules that are to deal with establishment of a judicial service of Bangladesh; to enact law regarding posting, promotion, grant of leave, discipline, pay, allowances, pension and other terms and conditions of service; to establish a separate Judicial Pay Commission by Rules; to make law ensuring security of tenure of judges, security of their salary and other benefits and pension and institutional independence from the Parliament.
These directions of the highest court are complied with the enactment of the much-talked-about four Rules. Other points of the judgment are also of vital importance. For example, the very first point declares that the judicial service, though a service of the Republic, is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic and any amalgamation or mixing up between these two different genera of services cannot be done on any account nor can they be placed on a par. This declaration virtually caused the government to bring amendments to the CrPC.
Implications likely to follow
To fathom the practical implication of this separation of lower judiciary we need to take a look into the Rules and the amendment of the CrPC brought about by the government under the auspices of the Supreme Court.
Till recently our judges in the lower courts were appointed by the Public Service Commission under a special category named BCS (Judicial). This method of appointment has been declared unconstitutional by the apex court. Additionally it was directed to the government that a separate Judicial Service Commission be formed to carry out the same function. This direction is met by the enactment of the Bangladesh Judicial Service (formation of the service, appointment in the service and temporary dismissal, dismissal and removal) Rules, 2007.
Another enactment titled the Bangladesh Judicial Service Commission Rules, 2007 provides for the formation of Bangladesh Judicial Service Commission which is responsible for the selection of competent candidates for judicial service to be appointed by the President. In accordance with the judgment most of the members of this Commission are to be drawn from persons holding high judicial offices. Naturally, these persons are much less likely to succumb to allurements or threats that might be posed by the government. This, consequently, would help them to dispose of their business relatively independently so as to keep government loyalists away from judicial service to preserve the job's sanctity.
Another enactment titled the Bangladesh Judicial Service (pay commission) Rules, 2007 has been introduced to ensure that financial aspects of judicial officers are no more intermingled with officers of other categories. By means of this law a separate Pay-Commission for the judicial service would be established which will be responsible to take care that financial independence of judicial officers is well secured.
It can be safely predicted that pay-scale meant for the judges would be quite different from other government services and the trend would be upwards. Proper implementation of this law will draw the attention of many young but highly talented lawyers who otherwise would have engaged in other professions requiring legal expertise. This eventually would add to the dignity and credibility of the judiciary.
Yet another enactment titled the Bangladesh Judicial Service (determination of posting, promotion, grant of leave, regulation, discipline and other conditions of service) Rules, 2007 is made to deal with the affairs, named in the law itself, of judicial officers.
Now let us see the changes brought about by the amendment of the CrPC. It provides that there shall be two classes of Magistrate namely: Judicial Magistrate and Executive Magistrate. Judicial Magistrates would form inseparable part of the Bangladesh Judicial Service while executive magistrates might be appointed by the government from persons employed in the Bangladesh Civil Service (Administration).
All persons appointed as Assistant Commissioners, Additional Deputy Commissioners or Upazila Nirbahi Officers in any district or upazila are automatically empowered with the authority of Executive Magistrates. A clear segregation is made between these two categories of magistrates both in terms of their place in government functionaries and their functions. The law categorically lists the powers of these two kinds of magistrates.
Unwarranted upheaval and ensuing confusion
Recently we have witnessed some manifestations of a feeling of being striped of their long exercised judicial power on the part of executive officers. They alleged that taking away of judicial powers from them would hinder their effective function as administrators at the local level. These apprehensions are largely unjustified as executive magistrates are vested with some serious powers by the amended CrPC, carefully calculated to encounter unwarranted situations. These include power to arrest, or to direct the arrest of and to commit to custody, a person committing an offence in presence of the magistrate; power to arrest, or direct the arrest in his presence of a person for whose arrest he can issue warrant; power to direct search of any place for the search of which he can issue search-warrant; power to require security to keep peace and good behaviour; power to command unlawful assembly to disperse and use civil force or require military force to that end; power to issue injunction as immediate measure in case of public nuisance etc.
Still dissatisfied, they claimed authority to act as judges of mobile courts and some other powers of judicial nature. It does not make any clear sense why they need these judicial powers especially while there are now judicial magistrates having right orientation to work as judges.
A note of caution and vigilance
We must maintain caution about not being too complacent about the latest developments. The concept of separation of judiciary is not synonymous of independence of judiciary, though the former ease the path of the latter. So separation is the means and not the end in itself. Our goal is to attain the removal of every obstacle in the way to have a justice-system which really is capable of delivering justice. In this regard we must not forget the control that executive still has over the Supreme Court in the form of appointment and elevation to the Appellate Division from the High Court Division.
This is high time to address the issue and thus cure the vices that are creeping into the supreme judiciary. In absence of any option to amend the Constitution in any time soon, this may well be done by a concrete legislation outlining the rules regulating the appointment of justices in the Supreme Court. In essence, there are still rooms for further development as the Appellate Division declared, “… it (Parliament) can amend the Constitution to make the separation more meaningful, pronounced, effective and complete”.
Conclusion
The broader theory of 'separation of powers', from which the concept of 'separation of judiciary' emerged, requires the powers of a given state to be allocated among three separate organs i.e. executive, legislature and judiciary, so that neither of them gets arbitrary and a check can be imposed upon one organ if it tends to become autocratic. However, if we keep theories aside for a while and rely more on our empirical observations, it would transpire that the roar of the executive sounds most vis-à-vis the other organs.
Even in the USA, the epitome of the separation of powers theory, Mr. Bush still can drag his war-dominated foreign policy on despite the fact that Democrats form the majority in both houses of the Parliament. This observation helps us to realise that it is hard, if not impossible, for other two organs to do or to abstain from doing something which run counter to the will or interest of the executive. This is evident in the course of implementation of Masdar Hossain case itself. Despite being 'supposed' representatives of people, two consecutive political governments afforded to abstain from executing the judgment and got away with that.
Indeed, there are countries where this separation theory applies well, but not because of the vitality of the theory itself rather because those countries have developed national sense of respect towards their democratic institutions amounting to inviolability, breach of which is regarded an impossibility. So, it is more of political culture than of mere implementation of theory. We have come across a long way in shaping our legal and institutional structure towards ensuring justice and now we must focus on inculcating the democratic values and spirits, both in political and legal spheres, in such a way that these may be felt integral to our national life.
The author is Advocate, member of Dhaka Bar Association.
