Md. Shibly Islam :
Nobody could deny the importance of an independent judiciary to establish rule of law in the country. The judiciary has the ultimate responsibility for decisions regarding freedoms, rights and duties of the citizens within their jurisdiction. The independence of an individual judge safeguards every person’s right to have their case decided solely on the basis of the law, the evidence and facts, without any improper influence. A well-functioning, efficient and independent judiciary is an essential requirement for a fair, consistent and neutral administration of justice. Consequently, judicial independence is an indispensable element of right to due process, the rule of law and democracy.
Now Bangladesh has said to have an independent judiciary but who has played the pivotal role in achieving that Awami league led government or BNP? The answer is unfortunately no one but once constitutionally approved caretaker government, at first by Late Barrister Syed Ishatiaq Ahmed, who was the law advisor of Justice Habibur Rahman caretaker government, had played a significant, role and lastly by Barrister Mainul during the Fakhrudddin-Moinuddin army backed care taker government who in fact had done fare bit of his role in enforcing some parts of the Majdar Hossain judgement which also reiterated the fact of settling Separate secretariat for the Supreme Court which will be supervised and operated by the Supreme Court and have ultimate power regarding the transfer of lower judiciary judges. The paradox is the transfer file of lower judiciary judges are still prepared by the Ministry of Law, Justice and Parliamentary affairs then it’s been sent to High court for approval. In the High Court it is considered by GA Committee which is formed by the Chief Justice from the judges of High Court and Appellate Division who consider and give the final posting approval. Theoretically, it might look to us that it is very transparent procedure as the ultimate power lies with The High Court as without their final approval it is not possible to transfer a judge but the reality is not that much straightforward.
In Bangladesh, due to the vulnerability in education system any of the public servants do not want transfer at the middle of the year because of the hustle they have to face to admit his son or daughter in a new school in the middle of the year and the judges are no different from it. At the same time it is now an open secret that if they grant any bail to opposition leaders even for the sake of justice his or her proposal for transfer to remote place of Bangladesh, with a peculiar note regarding that officer in the proposal, should be sent to the honorable High Court by the Ministry of Law, Justice and Parliamentary Affairs of Bangladesh and in most cases it is not only impossible to determine by the Honorable High Court why this proposal has been sent but also in bulk of cases it is actually entertained by them.
If you want to fill your important post you may choose to do that on seniority to take advantage of the employees experience and to reward them for their service. Another option is to fill those based on merit, a measure of the employees’ contribution based on performance and in case of judiciary it should be on disposal of cases, the quality of judgments, his career records etc. Each method offers potential advantages and disadvantages for you. It was always a convention in lower judiciary that the post of the District Judge of Dhaka, Secretary of the law ministry, registrar of the high court, other district judge of the old courts of the country will be posted by the seniority specially which will be determined by the gradation list and who has got the experience as a judge not on deputation but last five years it seems like history as the posting of District and Session Judge of Dhaka had been holed by those person who were comparatively very junior in the Gradation list and the guy who had been appointed as secretary he is not only junior in the gradation list but does not have an experience of sitting as a District and Session Judge for a single day. It has been said that he holds an enormous power for posting of judges in the lower court. So in this situation it is really ridiculous to hear from different parts of government that we do have an independent judiciary.
Literally, every political party including Awami league and BNP has outspoken the fact that they believe in independence and neutrality of the judiciary but never made a single move towards that and remained rhetoric regarding this and whatever achievements have been gained in this regard it is because of Majdar Hossain judgment. If they really want judiciary to play significant role towards rule of law then it is incumbent on them to establish Supreme Court secretariat where lower court judges, transfer proposal will be prepared and judges will be free of pressure in performing their sacred duties. We want to be hopeful but along with the sixteen crore population I have a doubt that whether it is possible to get a separate secretariat by political government because they never want to lose the grip on the judiciary. Article 22 of the Bangladesh Constitution provides for independence of the Judiciary. In 1999, the Supreme Court directed that separation of the judicial and executive functions should be implemented. The government announced the separation of the country’s subordinate judiciary from the executive through a Gazette notification in January 2007. It has taken nearly 36 years to primarily achieve that but it will only bear fruit when the Supreme Court will have a separate secretariat and it is demand of the time that the government should take steps towards it as early as possible for the sake of ensuring rule of law, democracy and social order.
(Md. Shibly Islam is a Lecturer, Department of Law, University of Rajshahi.)
