Democratic leaders anywhere do not fight the judiciary to undermine its independence because they know how essential it is for good governance. Suhrawardy, AK Fazlul Haq or Nehru (of India) never thought of interfering with the independence of the judiciary. But in our country, fight to deny independence to the judiciary has been persistent, so said Barrister Mainul Hosein in a talk show, Tritiyo Matra on Channel-i TV yesterday moderated by Zillur Rahman. The other participant was Dr. Badiul Alam Majumdar of SHUJAN.
Using the rules making power of the President, promotion, transfer and taking disciplinary actions against the judges of the lower judiciary have been kept under the control of the executive. The rules, accepted by the Appellate Division after refusing to do so for a long time, though require consultation with the Supreme Court but this has created a conflicting situation when read with
Article 109 of the Constitution which mandates High Court Division to have superintendence and control over the lower courts, he pointed out and concluded that without the power of posting, promoting and punishing the lower court judges the constitutional responsibility under Article 109 ceases to be meaningful.
Barrister Hosein explained that a bureaucracy-dominated government anywhere cannot accept constitutional checks and balances or independence of the judiciary and our government being in the grip of bureaucracy is fast shedding its democratic nature. He said our bureaucracy-led government known elsewhere as civilian martial law not to tolerate independence of the judiciary. The opposite of democracy is autocracy.
We have also an arrangement of things done or said through intimidation. Who are responsible not known. But the nation is living with terror-phobia.
Barrister Hosein expressed his bafflement as to how the High Court Division will effectively supervise and control the activities of the lower courts when the power of posting, transfer and punishment will be exercised by President or the law ministry if the President so arranges.
On the question of coming general election Barrister Mainul has made his view again clear that without dissolving the parliament no condition for parliamentary election exists. It is not also level playing field for the election to be free and fair under the party government in power.
Citing examples of parliamentary practice in other countries, Barrister Mainul said in those countries the existing prime minister is accepted to head the election time care taker government because the prime minister is trusted for not stealing the election.
He said it categorically that Election Commission is in no position to hold free and fair election and blaming it is not the solution.
Mr Majumdar is disappointed with the conduct of the judges of the Appellate Division in accepting the rules which were earlier refused. He was shocked to know the five judges telling the former Chief Justice not to sit with him in court before he was found guilty. He made this observation feeling concerned for their high position of public faith.
He has placed his high hope about the possibility of reaching a political compromise over the election.
Majumdar expects the Election Commission to say boldly that condition for a free and fair election is not available with the government fully in control of the administrative machinery.
