Farrukh Khosru & Shahariar Islam Sovon :
Judicial independence, a cornerstone of the Constitution of the People’s Republic of Bangladesh, is essential for ensuring the rule of law in a democratic state. Without an independent judiciary, justice is undermined, making it impossible to shield the public from the misuse of power by other branches of government. This principle, known as the balance of power, is foundational to democratic accountability. For example, Article 3 of the US Constitution enshrines judicial separation as a critical component of democratic governance. Similarly, Article 22 of the Constitution of Bangladesh mandates the separation of the judiciary from the executive, emphasising the importance of an independent judiciary in the exercise of power.
In the landmark Masdar Hossain case (52 DLR AD 82), the Appellate Division outlined 12 directives emphasising independence in recruitment, administration, and finances for the judiciary. However, even after 53 years of independence, no law has been enacted to determine the qualifications of Supreme Court judges, as required by Article 95(2)(c) of the Constitution. Consequently, the appointment of judges remains at the discretion of the executive, leading to allegations of political influence in judicial appointments. There have been instances where judges were removed or sidelined due to governmental dissatisfaction, highlighting the need for a robust legal framework to protect judicial independence.
According to Article 94 (4) of Bangladesh Constitution, states that the Chief Justice and other judges of the Supreme Court shall be independent in the exercise of their judicial functions.
According to Article 95 Bangladesh Constitution empowers the President to appoint judges of the Supreme Court based on qualifications prescribed by the Constitution, ensuring that only eligible individuals assume judicial role. It provides security of tenure for Supreme Court judges, who can only be removed through impeachment by a two-thirds majority of Parliament on grounds of proven misconduct or incapacity, as per Article 96 (1).
Despite constitutional safeguards there are significant challenges persist, hampering the judiciary’s ability to function impartially and effectively.
The separation of powers is fundamental to judicial independence, but delays in fully separating the lower judiciary from executive control have undermined this principle. Although Article 22 of the Constitution mandates the judiciary’s separation from the executive, the executive still wields influence over lower court appointments, transfers, and disciplinary actions. This can lead to perceptions of bias or actual pressure on judges to align their decisions with government interests.
Appointments often appear influenced by political considerations rather than merit, raising concerns about judicial impartiality. Judges perceived as favorable to ruling parties are sometimes prioritised, eroding public trust in the judiciary.
Unlike many democracies, Bangladesh does not have an independent judicial commission to oversee appointments. This absence creates opportunities for political or executive interference in the selection process.
The 1972 Constitution vested sole control over subordinate courts in the Supreme Court, but the fourth amendment transferred this control to the President. The Fifth Amendment introduced the requirement for the President to consult the Supreme Court, and the fifteenth amendment (2011) further entrenched presidential authority over the judiciary. Article 116 stipulates that the control and discipline of judicial personnel shall vest in the President, exercised in consultation with the Supreme Court, thereby creating a ‘dual rule’ that undermines the independence of subordinate courts.
Numerous instances illustrate the judiciary’s compromised independence. Cases involving politically sensitive investigations, such as those related to S Alam, and the misuse of laws like the Special Powers Act and the Anti-Terrorism Act, underscore the judiciary’s vulnerability to executive interference. Judicial decisions that diverge from constitutional norms have contributed to what some term ‘judicial anarchy.’ Furthermore, while Article 116 (Kaa) guarantees judges’ independence in judgment, the oversight of the Ministry of Law, through mechanisms such as the Annual Confidential Report (ACR), hampers their ability to act freely. Judges who attempt to assert independence often face punitive transfers or exclusion from key judicial roles, thereby restricting access to justice.
Recommendations for Strengthening Judicial Independence:
1. Transparent Judicial Appointments: A clear and impartial legal framework should be established for the appointment of judges, as mandated by Article 95(2) of the Constitution. This framework should prioritise merit over political considerations, with appointments overseen by a selection committee insulated from executive interference.
2. Restoration of the 1972 Provisions: Articles 115 and 116 of the current Constitution should be replaced with the original provisions from the 1972 Constitution, thereby ensuring the complete separation of the judiciary from the executive. The Supreme Court must regain full authority over subordinate courts.
3. Creation of a Judicial Secretariat: Establishing an independent Judicial Secretariat would facilitate the implementation of constitutional provisions regarding judicial autonomy and ensure administrative independence.
4. Independent Prosecution Service: A separate and permanent prosecution service should be established, with government law officers appointed through the Judicial Service Commission to ensure impartiality and professionalism.
5. Financial Autonomy: The Supreme Court’s budget should be independent, ensuring that the judiciary has the resources it needs without executive interference.
6. Increased Judicial Capacity: The number of judges should be increased to align with the growing population and caseload, reducing delays in case resolution. Adequate security and accommodations for judges must also be provided.
7. Amendment of Judicial Discipline Rules: The Bangladesh Judicial Service (Discipline) Rules, 2017, should be revised to strengthen judicial independence and accountability.
8. Expedited Case Disposal: Civil and criminal procedural laws should be amended to expedite case resolution, and the timely enforcement of appellate decisions, such as those concerning the Warrant of Precedence, should be prioritised.
Judicial independence is indispensable for upholding the Constitution and the democratic values upon which Bangladesh was founded. Implementing these reforms is essential to ensuring that the judiciary remains a bulwark against the encroachment of executive power and a guardian of the rights and freedoms of all citizens.
(Khosru and Sovon work for The New Nation as Executive Editor
and Joint News Editor respectively).
