A crucial call for setting up judicial secretariat

Sayeed Shuvo: With the solemn spirit of July-August revolution, people of Bangladesh are envisioning to reform country’s key institutions including Judiciary, Public Administration, Police, Anti-Corruption Commission, Election Commission, Financial Institutions and Health Institutions etc. People are incessantly demanding to transform those institutions as pro-people one which will ensure delivery of service within shortest possible time, free of costs and without any harassment. Paying heed to public demand, the interim government has already formed different commissions. Like other reforms establishing rule of law in true sense is the highest concern from the experts and even from people’s quarter, who were deprived of fundamental human rights, freedom of speech and justice for long time. Their aspiration is to build a strong and independent judiciary which will be free from all sorts of interferences.

By taking on the people’s aspiration, Chief Justice of Bangladesh Dr. Syed Refaat Ahmed addressed the judges of district judiciary as well as the nation in a sense where he pronounced roadmap to reform judiciary. Judges of both divisions of the Supreme Court, Law Adviser, Attorney General, Chairman of Judicial Reforms Commission, President and General Secretary of SC Bar Association and dignitaries from different institutions attended the remarkable programme. In his reforms scheme, the CJ put emphasis on establishing an independent judicial secretariat for ensuring actual separation of powers, to ensure accountability and transparency for dispensation of justice. The CJ in his speech also declared zero tolerance against corruption in the judiciary. The irony is we frequently hear such declaration from different high ups but declaration can’t go beyond mere declaration. Hardly have we seen actual action. But this this time we have noticed through media a different scenario that the CJ has launched a helpline number to provide legal services and to use it as door for placing any complaints about corruption in judiciary and it is pertinent to mention that some actions have already been taken on allegation of corruption. This is indeed a highly commendable initiative by the Chief Justice. Besides, from CJ led SC Administration’s prompt action has been taken by preparing draft laws regarding appointment of SC judges, posting and transfer policy for the members of district judiciary and ensuring legal aid support for any special socio-political circumstances.

Expressing solidarity with public demand, The CJ has forwarded a complete proposal for establishing an independent judicial secretariat, a crying need of time and the proposal is on the board of law ministry now. The SC authority has also annexed a concept paper elucidating the significance of independent judicial secretariat which is under the consideration of government.
Earlier in 1999, in the landmark judgment of Masdar Hossain case, the Appellate Division provided a complete guideline for effective separation and institutional autonomy of judiciary. Article 22 of the Constitution speaks the same and it provides that the State shall ensure the separation of judiciary from the executive organs of the State. None of the political government took positive steps regarding separation of judiciary from the executive till 2007. In 2007, ignoring protest from bureaucrats, the then caretaker government led by Dr Fakhruddin Ahmed took some remarkable steps and judicial magistracy was separated from the executive branch. Dr. Fakhruddin led government established judicial service commission and framed some regulations for meaningful separation of judicial magistracy. In spite of their good will and whole hearted attempts, they could not be able to accomplish all endeavors taken for effective separation of judiciary for various reasons.

After one and a half decade, now the time repeats! The CJ is calling up the government to fulfill the mandate of separation and institutional autonomy of judiciary declared in the judgment of Masdar Hossain case in 1999. In the very judgment of Masdar Hossain case, the Appellate Division has contended in a direction that the essential conditions of judicial independence enshrined in Article 116A, elaborated in the judgment, namely, security of tenure, security of salary and other benefits and pension and institutional independence from the Parliament and the Executive shall be secured in the law or rules made under Article 133 or in the executive orders having the force of Rules. The term institutional independence indicates a separate body which shall have every power to control and superintendence over its subject and this body shall be free from all interferences.

While advancing argument on behalf of the respondents in Masdar Hossain case, Barrister Syed Ishtiaq Ahmed and Barrister Amirul Islam clearly submitted that Article 109 of the Constitution having provided that the High Court Division shall have superintendence and control over all Courts and tribunals subordinate to it, the word “control” used in both Articles 109 and 116 has to be reconciled. Barrister Syed Ishtiaq Ahmed goes on to argue that Article 116 is merely formalistic in view of Article 48(3) of the Constitution which requires the President to act in accordance with the advise of the Prime Minister in the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice and also in view of Article 55(2) of the Constitution providing that the executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister. Syed Ishtiaq Ahmed submits that in the amended Article 116 the control has been vested formally in the President but actually and in reality in the Prime Minister who is the executive head. At the very beginning of independent Bangladesh, the 1972 Constitution handed absolute control over subordinate courts in the hands of Supreme Court. The most debated fourth amendment had scrapped the actual independence of judiciary by handing over the control to the President, actually in the hand of the executive head.

Following close examination and meticulous analysis of the relevant provisions of the Constitution, the Appellate Division through judgment of Masdar Hossain case clearly provided complete guideline for effective separation of judiciary from executive. After 25 years of judgment, the call for complete separation of judiciary with separate secretariat under the Supreme Court has got attention of all the citizens of the country as the latter were the real sufferer due to having interference of ruling executive in judiciary during tenure of political government, especially last 15 years.

Law experts also opine that nothing else but separate secretariat can draw full stop to the control of government over the district judiciary. Institutional control by an independent body is mandatory for effective separation according to the ambit of Article 109 of the constitution and the judgment of Masdar Hossain case. If the separate secretariat is established, the power of recruitments, transfers and promotion of subordinate court judges will go to the SC and then the judiciary will be able to ensure equality and justice independently. It is not necessary to mention here again that the task of ensuring rule of law in a country totally depends upon strong and independent judiciary. In the context of the unforgettable July-August mass uprising, it is high time for this interim government to respond the crucial call of the Chief Justice’s proposal by setting up an independent judicial secretariat that will surely restore public faith upon the judiciary.

Author Sayeed Shuvo is a Judge and Researcher of Law; The writer is conducting research on “E-judiciary: Challenges and Prospects in Bangladesh”. Email: sayeed.judge@gmail.com