The independence of judiciary and the necessity of the rule of law for democratization in bangladesh

1

The independence of Judiciary and

the necessity of the rule of law for

democratization in Bangladesh

Md.Azizur Rahman Dulu

Senior Assistant Judge

Nilphamari

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.

By instinct man is gregarious and lives in company

of his fellow beings. This has led to the emergence

of society and rules to regulate the conduct of the

members of the society. The association was not,

however, for mere companionship, but to achieve

various subjective matter and purposes. Dealings

between the individuals in the society invariably

resulted in disputes. The need to settle disputes

gave rise to leadership in the society and with the

problem of protection of life and property came the

concepts of allegiance and obedience.

2

By a slow and intermittent process of social,

economic and political evolution the State emerged

as an indispensable institution rub by an agency

called the government. Constitutional law is a set

of legal rules which regulate the structure of the

organs of government, their5 functions, and their

relationship with each other and with the citizens.

Power has to be conceded to the State for the sake

of ordered society, but every power given to the

State makes a corresponding inroad into the bundle

of rights and liberty of individuals. Gone is the

day of laissez-fair when the individuals hardly

felt the existence of the government. The vast

explosion of population, the momentous advancement

of technology and the resulting perceived welfare

needs of the complex modern society have mind

pervasive governmental control inevitable. In such

a situation the life of individuals is sure to

become intolerable if the State can exercise

unfettered or arbitrary power. Hence, the modern

emphasis is on constitutionalism and constitutional

government which not only recognize the need for

governmental power, but also insist on limitations

on the power of the government. Western

institutional theorists have concerned themselves

with the problems of ensuring that the exercise of

governmental power, which is essential to the

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realization of the values of their societies,

should be controlled in order that it should no

itself be destructive of the values it was intended

to promote1

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

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abused his discretionary power in framing the

benches but focusing the point of law that is,

article 100 of the Constitution of the Peoples

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 Hossains case that-

5

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

, 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

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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. 2

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

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to Rule 5 of ,

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

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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.

Thats 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

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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.4

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

10

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.

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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).5

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

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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.6

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. 7

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

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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

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will be no request or lobby for the transfer and

harassment.

1.4 Promotion procedure and recommendation:

The promotion of sub-ordinate Courts 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.8

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-

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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

unfavorable 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

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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

17

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.9

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

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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.10

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

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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

Ethical education

Ethical education of the civil servants including

the judicial service holders of the State is very

much needed in respect of maintaining the standards

and values of them in serving the needs of the

people. Most modern Civil Service Ethics laws, and

Codes of Ethics for civil servants and public

officials, endorse the following minimum set of

principles:

Serving the Public Interest

Civil servants and public officials are expected to

maintain and strengthen the public's trust and

confidence in government, by demonstrating the

highest standards of professional competence,

efficiency and effectiveness, upholding the

Constitution and the laws, and seeking to advance

the public good at all times.

Transparency


use powers and resources for public good, under

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government policy. They should be accountable for

the decisions they make, and prepared to justify

their actions.

Integrity


make decisions and act solely in the public

interest, without consideration of their private

interests. Public employment being a public trust,

the improper use of a public service position for

private advantage is regarded as a serious breach

of duty.

Legitimacy

Civil servants and public officials are required to

administer the laws, and to exercise administrative

power on behalf of the Government, or the

Parliament, or other such authority. That power and

authority should be exercised legitimately,

impartially and without fear or favour, for its

proper public purpose as determined by the

Parliament or their employer.

Fairness

Civil servants and public officials should make

decisions and act in a fair and equitable manner,

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without bias or prejudice, taking into account only

the merits of the matter, and respecting the rights

of affected citizens.

Responsiveness

As agents and employees of the elected Government,


serve the legitimate interests and needs of the

Government, other civil servants, and all citizens,

in a timely manner, with care, respect and

courtesy.

Efficiency and Effectiveness


obtain best value for public assets deployed in or

through public management, and to avoid waste and

extravagance in expenditure and the use of public

assets.11 Besides these, the religious education

must be enlightened in both civil servants and the

judicial officers or the judges of the sub-ordinate

Courts so that they can control themselves from

doing any kind of corruption.

Use of technology

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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

peoples 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

23

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 Brde et de

24

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

25

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.

References:

1. M. J. Vile- Constitutionalism and separation of powers, p.1; see also Mahmudul Islam- Constitutional

law of Bangladesh, second edition, p.1

2. http://www.jscbd.org.bd/b_function.php 3. www.forbes.com/profile/julian-assange/ 4. http://www.ti-bangladesh.org/research/ES_PSC.pdf 5. http://www.napsipag.org/PDF/ABDUL_WAHHAB.pdf; see

also Khan, Akbar Ali and Kazi Rakibuddin Ahmad March

2008. Quota System for Civil Service Recruitment in

Bangladesh: An Exploratory Analysis 2008 available

at http:// www.bpsc,gov.bd/documents/ news/25906

news.doc

6. Mahmudul Islam- Constitutional law of Bangladesh, second edition, p.171; see also Devadason v. India,

AIR 1964 SC 179; In Indra Sawhney v. India AIR 1993

SC 477, it was held that a year should be taken as a

unit or basis for applying the rule of 50% and not

the entire cadre strength.

7. Mahmudul Islam- Constitutional law of Bangladesh, second edition, p.171; see also Indra Sawhney v.

India AIR 1993 SC 477

8. http://www.igsbracu.ac.bd/UserFiles/File/archive_file/Judiciary_Policy_Note.pdf 9. http://www.igsbracu.ac.bd/UserFiles/File/archive_file

/Judiciary_Policy_Note.pdf

10. http://www.igsbracu.ac.bd/UserFiles/File/archive_file/Judiciary_Policy_Note.pdf

11. http://www.oecd.org/dataoecd/62/57/35521740.pdf

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The independence of judiciary and the necessity of the rule of law for democratization in bangladesh