The independence of Judiciary and rule of law for democratization in Bangladesh Introduction: Bangladesh being a state of pledging in the preamble of the constitution for establishing a society free from exploitation has the responsibility to work for this and it is of course, necessary to find out the lacuna and taking the measures so that no exploitation can be done either by the persons appointed in the service of this Republic or non appointed exploiters. In believing a Greek old proverb ‘the ignorant judges are calamitous for the people’ I would like to say simply that the judicial service of Bangladesh and the rule of law for democratization are inter connected. Without the proper function of the judicial service of Bangladesh, the rule of law cannot be established. Now the question comes to us that whether the judiciary functions properly and if not what reforms should be made for proper function of the judiciary. Here I have pointed out some bad scopes or sectors for which the judges or the judicial magistrates of sub-ordinate courts of Bangladesh cannot work independently like the judges of the Supreme Court of Bangladesh. Of course the judges of the apex Court are independent except the formation of the benches time to time by the Chief Justice of Bangladesh. There is no set principle or guidelines like Iran for which the benches of the apex Court shall be formed and there will be no abuse of the discretionary power of the Chief Justice of Bangladesh. I am not telling that the Chief Justice of Bangladesh has or has not abused his discretionary power in framing the benches but focusing the point of law that is, article 100 of the Constitution of the People’s Republic of Bangladesh, provides that ‘The permanent seat of the Supreme Court shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint’ and for which there is a scope of abusing the discretionary power which is solely depended on the mentality of the person holding the said authority. However, besides this, I am telling here what the obstacles are for the judges of the sub-ordinate courts of Bangladesh for establishing the rule of law and what reforms at least within the existing legal framework should be made for ensuring the rule of law and the democratization. 1.1 Legal framework Article 137 of the Constitution deal with the term ‘legal framework’ of Judicial Service of Bangladesh as the said article provides the scope of establishing one or more public service commission for Bangladesh. The Appellate Division of the Supreme Court of Bangladesh in its’ judgment passed in Civil Appeal no.79 of 1999 commonly known in the Masder Hossain’s case that- “It is declared that the word “appointments” in Article 115 means that it is the president who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that behalf, make rules regulating their suspension and dismissal but Article 115 does not contain any rule-making authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the Constitution and the Services (Reorganization and condition) Act, 1975 have no application to the above matters in respect of the Judicial service and magistrates exercising judicial functions and for this declared law of the apex Court, the establishment of judicial service commission of Bangladesh was done. “Bangladesh Judicial Service Commission has been established in 2007 by the rule ‘ বাংলাদেশ জুডিসিয়াল সার্ভিস কমিশন বিধিমালা, ২০০৭ ’ i.e. Bangladesh Judicial Service Commission Rule, 2007. According to rule 3(2) of the Bangladesh Judicial Service Commission Rule, 2007, the Commission consists of 11 members headed by its Chairman who is to be a Judge of the Appellate Division of the Supreme Court nominated by the Hon. President in consultation with Chief Justice. Other members of the Commission includes- (a) two judges of the High Court Division nominated by the President in consultation with the Chief Justice (b) a member of the Law Commission nominated by the President (c) Attorney General as ex-officio member (d) the Secretary of Ministry of Establishment as ex-officio member (e) the Secretary of Finance as ex-officio member (f) the Secretary of the Ministry of Law, Justice and Parliamentary Affairs as ex-officio member (f) the Dean of the Law Faculty of any one of three leading public university i.e. Dhaka or Rajshahi or Chittagong University nominated by the President (g) the Registrar, Supreme Court as ex-officio member and (h) the District Judge, Dhaka as ex-officio member. There is also a full fledged Secretariat to assist the Commission. A District Judge of the service functions on deputation as the Secretary of the Commission Secretariat.” 1.2 Recruitment procedure and recommendation: The recruitment of process Bangladesh Judicial Service Commission is almost same of Bangladesh Public Service Commission. It takes a preliminary (multiple choice question formats) examination, Written examination and then viva voice. According to Rule 5 of ‘ বাংলাদেশ জুডিসিয়াল সার্ভিস কমিশন বিধিমালা, 2007 Judicial Service Commission conducts the said preliminary examination and the applicants having 45% marks in said examination will be qualified for written examination and viva voice of 1100 marks. Among these 1100 marks, 400 marks will be from the compulsory general subjects and another 400 marks will be from compulsory law subjects and 200 marks will be from optional law subjects and 100 marks will be from viva voice. According to rule 6 of the said Order 2007, the said Commission can conduct total 500 marks examination including viva voice. On an average, one applicant will have to have 45% marks of the written examination and separately he will have to have 45% marks in the viva voice and if any applicant gets below 25% marks in a subject, it will be deemed that he has not got any marks in that subject. The successful applicants in written examination and viva voice will have to appear for health test. Thus the recruitment process is conducted by the said Commission. Recommendations: Julian Paul Assange, an Australian computer programmer, political/internet activist, publisher, and journalist and founder of WikiLeaks, supports the free dissemination of government data.3 My recommendation for better recruitment is to take the technological help in respect of recording the recruitment procedure and to show the recorded video particularly the viva voice phase so that the people can understand at least that the recruitment is fair and reasonable. Almost, all the time, it is beyond the capacity of the common citizens to understand as to the viva voice procedure and their markings. I am telling to remove the lacuna of not understanding the quality assessment procedure. For example, when a Judge presides his Court and after both the parties delivers his judgment in a disputed matter, both parties, their legal practitioners all other connected and non connected persons being present can observe the entire procedure and the judgment based on the findings or reasons but the same is not possible in a process of recruiting the persons to be appointed in the Civil Service of Bangladesh. That’s why, the entire recruiting procedure should be recorded and viewed to the citizens of the State. It is necessary to mention that, a Judge holding a Court openly having the access to all to know and observe can understand the weak points and strong points as to the disputed matter and even the correctness or the incorrectness of the findings or reasons given by the said Judge. For this open functioning of a Judge, it is very ascertainable whether a Judge gives his judgment either correctly or incorrectly and the word incorrect includes also the corruption. According to Transparency International the following things should be done; (1). The mark sheet of the successful candidates should be given to the examinees on compulsory basis immediately after the result is published ;(2). The result sheet of all examinees (both successful and unsuccessful) must be published on the website. (3). Existing restrictions against challenging the result of examinations should be immediately abolished. Besides these, quota system should be abolished as our Constitution or any law has not given the definition and the factors of opting ‘backward section’ of the citizens. Article 29(3)(a) of our constitution though provides the quota system for ‘backward section’ of the citizens for the purpose of securing their adequate representation in the service of the Republic but there is no mechanism or procedure for determining the necessity and time frame of the said quota system. As for example, A man in our village had seven sons and two of them are freedom fighters and government servants and financially solvent. If their children get the benefit of quota system, how can we determine them as backward section of the citizens while other sons’ being poor are not getting the said benefit and hence Professor M. Abdul Wahhab Dept. of Public Administration, University of Chittagong, Bangladesh has re uttered correctly that The quota policy as enshrined in the constitution is an exception for the advancement of backward sections in the society. Hence quota in no way can supersede the universal principle of merit for ensuring equal employment opportunities for all citizens without any discrimination. So quota of 40-55 percent as practiced in Bangladesh with different executive orders/rules is against the spirit of constitution. Since after liberation in 1971 till date majority posts of the civil services have reserved for the people of preferred groups under quota. Moreover, quota has always been implemented without transparency. It is surprising that that the appointments under quota have never made public either by The Public Service Commission (PSC) or by Ministry of Establishment (MOE) in official document or gazette. The Public Service Commission (PSC) annual reports do not provide adequate information on the appointments under quota. Quota may be necessary for the advancement of backward sections in the society, but it can never continue for indefinite period as is going on in Bangladesh. Due to quota policy relatively poor caliber officials get entry into the civil service or judicial service and long term bad impact of quota system is evident in the civil service or judicial service of Bangladesh. So we propose to abolish quota in civil service recruitment excepting for tribal people (5%) but not for Chakmas who on the average are financially better off than the general people of Bangladesh; and also their literacy is higher around 75 percent and literacy in Bangladesh is 63 percent. Thus Chakmas in no criterion belong to backward section in Bangladesh. The 30 percent quota for the wards of freedom fighters “though sanctioned by a wave of sympathy and gratitude has not a legal leg to stand on unless the beneficiaries proved to be disadvantageous (Khan and Kazi 2008: i). However, art. 29(3), does not, confer any right on any one, nor impose any constitutional duty on the State to make the reservation. In the face of art.29 (1) &29(2), it merely confers an enabling power. But as it an exception to the guarantee of art.29 (1) &29(2) it should not be interpreted or given effect to in such a way as to nullify the guarantee under art.29 (1) &29(2). The Indian Supreme Court held that reservation in excess of 50% would be unconstitutional. Another question comes generally whether all the member citizens of a backward section of the entire citizens are backward equally? The answer is of course ‘not’ and hence “we are to consider the meaning of ‘backward section’. Art. 29 is comparable with art.16 of the Indian Constitution which uses the expression ‘backward class’ where as the expression used in art. 29(3) is backward section. The Indian Supreme Court has interpreted the expression ‘backward class’ in several decisions. Those decisions may be helpful, but not decisive, in interpreting ‘backward section.’ This expression has no reference to race, caste, and there may be backward section within a race or caste which as a whole may not be backward. My ultimate recommendation is to abolish all kinds of quota and to provide all kinds of facilities to all kinds of backward citizens of the backward section of the entire citizens so that they can sharpen and enhance their abilities to make competition and have success with equitable equity. 1.3. Transfer procedure and recommendations: The transfer procedures of the Judges of the sub-ordinate Courts of Bangladesh are not transparent and there is no transparent guiding factor of this transfer procedure. The statistics of the judicial officers who gets transfer in Dhaka and around Dhaka will make the question that under what qualities or factors they have got their transfers therein and thus we need to think and rethink as to this matter. Recommendation: Without any more discussion, to my mind, the lottery system of transfer is the only way to remove any kind of unfair or unreasonable transfer. However, having some exceptional measures, every after, a particular period of time, that may be 3 years or any reasonable portion of time fixed by law, an open lottery should be held which will be viewed by all the civil servants or the judicial service holders and the citizens of the State and according to that lottery, their new stations will be determined and if it is taken or done, there will be no request or lobby for the transfer and harassment. 1.4 Promotion procedure and recommendation: The promotion of sub-ordinate Court’s judges are in fact, depended on the Annual Confidential Reports (ACRs). There is no examination system for getting the promotion in the sub-ordinate judiciary. ‘Presently, the performance of subordinate court judges is evaluated by way of Annual Confidential Reports (ACRs). It is commonly held that the process has failed to encourage accountability and is not considered to be an effective supervision mechanism. ACRs encourage tadbir (lobbying) with subordinate judges being over-cautious and meek in the hope of receiving glowing reviews from senior judges. ACRs are also susceptible to political interference as subordinate court judges feel that their ACRs would contain negative remarks if they fail to tow a particular political line.’ In our sub-ordinate judiciary, the rule of Annual Confidential Reports is not strictly followed. Particularly rule 420 of Criminal Rules and Orders-2009 is not complied and sub-rule 5 of the said rule 420 provides that- “Confidential reports should set out distinctly and tersely sufficient particulars and it is essential that they should be clear and definite so that the High Court Division may form a correct opinion on the merits of the officer. In the case of a very bad report, it is necessary that the unfavourable traits should be briefly illustrated. No adverse remarks should be made which cannot be supported by precise data, which are liable, specially in the case of a very bad report of an officer who had hitherto a good or average record, to be called for by the High Court Division.” But it is not seen that the precise data are called for by the High Court Division in a case of a Judge who is closely known to me and this is surprising that the rule made by the Supreme Court of Bangladesh is not complied with by the General Administration Committee of the Supreme Court of Bangladesh. Recommendation: 1. Annual Confidential Report system should be abolished and only merit through examination should be the basis of promotion. Before taking part in the examination, there must have a time frame of working experience. 2. A Committee composed of well experience based persons concerned shall be formed for every tire of sub-ordinate judiciary which will review the aforesaid time frame based works and give the report to the promotion giving authority. 3. The committee may do mistake and hence there should have an opportunity that if a civil servant or judicial service holder obtains good marks in the examination and the committee review report is against him, the basis of the said review report must be checked by another similar committee without the identification of the report holder. 4. All the performance reviewed by the committee must be publicly viewed either by website with their consideration. 1.5 Training and recommendation: The Government of Bangladesh has established the Judicial Administration Training Institute (JATI) in accordance with the Judicial Administration Training Institute Act 1995. Under the current training policy, JATI runs a 60-day basic course for newly appointed Assistant Judges, 21-day courses (and at times, 3-day short courses) for Senior Assistant Judges, Joint District Judges and District Judges. However, the quality of training is not satisfactory as it lacks dynamism and fails to provide the judges with a broader outlook including Knowledge of contemporary international legal issues and necessary social skills. Recommendation: The quality of training provided by JATI should be improved. A training need- assessment of the subordinate court judges could be undertaken immediately, which will identify the areas of laws (such as, cyber space, money laundering, ethics, arbitration and conciliation) for curriculum development and training. JATI should also plan and implement a continuous point-based training programme for the subordinate court judges. Another interesting and innovative mode of orientation for the judges of the subordinate courts could be a form of ‘apprenticeship’ for the newly recruited by placing them with the judges of the Supreme Court for a designated period of time. Similar to the system of ‘pupillage’ for newly qualified lawyers when they spend a period of time with senior lawyers and the newly recruited subordinate judges could be assigned to different High Court judges. They could work as ‘Research Assistants’ of the judges and help them with academic research, drafting of legal instruments, and writing of judgments. After this initial phase of ‘apprenticeship’, they can then receive further training at JATI. If this particular form of training is allowed, the new recruits will get to learn about the different legal issues and how judgments are written and generally increase their confidence and competence in matters related to law. On the other hand, the judges of the High Court Division, who are severely in need of skilled human resource, could benefit tremendously from the service of the newly recruited judges. This would also develop a working relationship between the judges of the Supreme and the subordinatecourts. 1.6 Accountability The accountability of the judges of the sub-ordinate Courts depends upon for the first time towards the law and conscience as embodied in rule 667 of the Criminal Rules and Orders-2009. The function of the judges of the sub-ordinate Courts are also accounted by their appellate Courts. Way of maximum corruption free Bangladesh Use of technology The technology is the best neutral witness or evidence as I understand that a person may be perverted at any time but there is no scope of any perversion of technology unless it works defectively. If the function of the civil servants or the judges of the sub-ordinate Courts are recorded and viewed to the people, there will be the situation for which the society will be maximum corruption free society. As for example, there are people’s perception as to the corruption of the staff of the Court and other persons connected to the Court and sometimes even the judge himself. This fact has been stated by Mr. Mahmudul Islam, Senior Advocate of the Supreme Court of Bangladesh and former attorney-general in his book ‘The Law of Civil Procedure’ first edition 2006, volume 1, page iii that “For almost every act from instituting a case to the delivery of the certified copy of the judgment or order one has to grease the palm of the court staff. Few of the judges make any effort to control the diary as a result of which the bench officer extracts substantial amount of money simply to place a case in the daily cause list. Once there was a row over the matter and there was serious altercation between a bench officer and a concerned lawyer, but learned Chief Justice without applying his mind to the problem put the blame on the lawyer.” However, the corruption of the court staff and the offices of the civil servants can be controlled easily by using technology i.e. by recording all the function of them and viewing to the people. For example, a court of subordinate judiciary has generally two or three rooms. One room is for the judge, another one room or other two rooms is for the staff of the said court and if secret camera is set up and the judge can observe all the functions of the court staff, he can easily catch the corruption and take necessary steps and the entire function including the function of the judge should be recorded and viewed to the people. There will be a screen on the road side of the office of the civil servants and the court from which any person of the State can see and observe their function easily. There must have a link through which the appellate or higher authority of the office or court can also observe the entire function and if it can be established, there will a maximum corruption free society. Check and balance The theory of separation of powers was given by the Charles-Louis de Secondat, baron de La Brède et de Montesquieu, generally referred to as simply Montesquieu, indicates that there must have the check and balance between and among powers. The said profounder of this theory stated clearly in his famous book ‘the spirit of laws’ that ‘I have not drawn my principles from my prejudices, but from the nature of things.” The things are neutral and hence the use of technology must also be neutral and hence by using the technology we can get a neutral result which will establish a maximum corruption free society. Conclusion In conclusion, it can be reminded that 3rd paragraph of the preamble of our constitution provides that ‘Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.’ We need to remove all kinds of exploitable scopes from the office of the civil servants and the judges of the sub-ordinate courts and the apex court of Bangladesh by adopting the technology which will work of course, as the best neutral evidence so that we can see our society as a society at least free from exploitation. Md.Azizur Rahman Dulu Senior Assistant Judge Nilpham
Posted on: Sun, 07 Dec 2014 06:55:18 +0000
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