Can the judiciary be free from politicisation?

At a time when Bangladesh's position on the World Justice Project Rule of Law Index is 127th out of 140 countries – lowest among South Asian neighbours except Pakistan and Afghanistan, with a continual drift over the last three years – it is heartening to hear our new chief justice, Obaidul Hassan, pronounce that "the judiciary and courts should not be politicised in any manner." Addressing his fellow judges and members of the Supreme Court Bar Association on October 8, he said, "In light of the constitution, let the judicial administration be transparent, independent, free from corruption, and congruent with the idea of social justice."

CJ Hassan's open expression of the desire to not politicise the judiciary is significant, and not only because the main opposition has been alleging for quite some time that the current judiciary system is entirely under the control of the government. There's a growing perception that, as we are witnessing a disturbing trend of rising authoritarianism, there has also been an erosion of confidence in the judiciary's independence. Even some in the international media have reported that courts in Bangladesh are being used by the government to suppress dissent and harass the opposition. The factors that the World Justice Project (WJP) considers while ranking countries in the Rule of Law Index include measuring "the extent to which those who govern are bound by law," meaning institutions like the legislature and the judiciary. It also evaluates the extent to which the criminal and civil justice system is independent of government or political influence.

Unfortunately, some of the public speeches and writings of a few judges, both in the higher judiciary and lower courts, run contrary to a number of these stipulated conducts. When allegiance to the ruling party has been a key consideration for appointment to the superior judiciary, and we see judges passing comments expressing political thoughts, or witness them return to active politics after retirement, questions about their impartiality are bound to arise.

Notably, CJ Hassan also said that the right to criticise a verdict was part of freedom of expression, which has been guaranteed by the constitution with reasonable restrictions by law. He then urged journalists to be careful while reporting on courts and judges because judges cannot make statements to the media. Referring to former Chief Justice Habibur Rahman's comment, he added, "I also want to say that judges are not above criticism. There is a way of decent criticism in a civilised world."

Despite his reaffirmation that judges are not above criticism, it's hard to feel confident about raising questions on the norm of political activists congratulating judges on their appointments or promotions, which we have done frequently in relation to constitutional offices like those of election commissioners or the Public Service Commission. Judges' association with political parties is a crucial subject of scrutiny globally, as their impartiality and independence are universally accepted as essential prerequisites.

At the beginning of this millennium, realising the importance of judges' conduct, under the auspices of the United Nations, the Judicial Integrity Group (previously known as the Judicial Group on Strengthening Judicial Integrity) comprising chief justices from common law countries devised a set of principles. This is known as the Bangalore Principles. One of our former chief justices, Mainur Reza Chowdhury, was a member of the group and took part in developing the draft at a meeting held in Bangalore in 2001. In 2002, the draft was finalised and endorsed at a roundtable conference in The Hague by chief justices and judges of the International Court of Justice (ICJ).

These principles are intended to establish standards for ethical conduct of judges, and are based on the values of independence, impartiality, integrity, propriety, equality, competence, and diligence. Unfortunately, some of the public speeches and writings of a few judges, both in the higher judiciary and lower courts, run contrary to a number of these stipulated conducts. When allegiance to the ruling party has been a key consideration for appointment to the superior judiciary, and we see judges passing comments expressing political thoughts, or witness them return to active politics after retirement, questions about their impartiality are bound to arise.

This is why the Guide to Judicial Conduct in the UK clearly states, "Each Justice will refrain from any kind of party political activity and from attendance at political gatherings or political fundraising events, or contributing to a political party, in such a way as to give the appearance of belonging to a particular political party. They will also refrain from taking part in public demonstrations which might diminish their authority as a judge or create a perception of bias in subsequent cases. They will bear in mind that political activity by a close member of a Justice's family might raise concern in a particular case about the judge's own impartiality and detachment from the political process."

The importance of the court's role as a constraint on government powers has also been recognised as an indicator of judicial independence in the Bangalore Principles, which says, "A judge shall not only be free from inappropriate connections with, and influenced by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom."

Sadly, the government's influence in the corridors of the judiciary has never been felt more strongly than at present. We all know how the government misused the controversial Digital Security Act (DSA) to suppress dissent. Was it not seen how the repressive provisions in the DSA contravened our basic human rights, including that of freedom of expression? Doesn't the replacement of the DSA by the Cyber Security Act (CSA), despite its shortcomings, prove as much? Can we hope that the new chief justice will allow us to opine that the judiciary could have prevented the weaponisation of the DSA by the executive, which would have saved thousands of victims from varying levels of suffering?

There's no public record available regarding whether we have a judges' code, though the verdict of nullifying the 16th Amendment drew one up. It's ironic that dozens of common law countries have adopted the Bangalore Principles that Bangladesh helped develop, but we ourselves choose not to follow it. Without abiding by stricter principles, can we make our judiciary independent, as well as free from politicisation?

Kamal Ahmed is an independent journalist. His X handle is @ahmedka1

Views expressed in this article are the author's own.

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