 |
| Kazi Ayman Awsaf |
As Bangladesh finds itself at a
critical juncture in its democratic journey, the demand for an absolutely
independent judiciary is timely and must be paramount. It is the truth that
lacunae still exist in the system, with the executive interference unabated,
with antiquated laws, and with political manipulations. Without far-reaching
reforms, justice will remain a matter of personal privilege rather than a
protected right.
A big obstacle in achieving a truly
independent judiciary in Bangladesh lies within the appointment process of its
judges. Under Article 48(3) of the Constitution, the President, in appointment
of judges, shall act in accordance with the advice of the Prime Minister.
Hence, the process is, de facto, an executive process. This is clearly different
from the situation in countries like Pakistan and Indonesia, where more
balanced models have been developed. In Pakistan, for example, judicial
appointments are made by a Judicial Commission comprising the Chief Justice,
senior judges, and legal experts. The nominations are then submitted for review
to a bipartisan parliamentary committee of eight persons, in which the input of
the opposition side is a must to prevent the executive from overreaching.
Indonesia offers the other model,
where the Judicial Commission is constitutionally mandated to recommend
justices and monitor their integrity. The appointees have to demonstrate legal
experience and are subjected to a very rigorous vetting process, which makes
such a system better insulated from partisan capture. These examples prove that
keeping courts away from manipulation by the executive is very much possible,
and practical even in developing democracies.
In Bangladesh, Chief Justice Syed
Refaat Ahmed has proposed a promising roadmap to address this democratic
deficit. His vision envisages an independent judicial secretariat working under
the Supreme Court to look into appointments, promotions, and disciplinary
cases. This body is supposed to work separately from the executive and is to be
staffed by judges and legal professionals—anybody but political appointees. The
idea is grounded on the old dictum—Justice must be done and must also be seen
to be done.
But judicial independence does not
stop at appointments. Four institutional pillars—Prosecutors, Pleaders
(lawyers), Police, and Penal Code (P4)—are critical in supporting a fair legal
system. At present, all four are compromised in Bangladesh.
The Attorney General's Office no
longer has the flip role of being an unbiased storehouse of the law; instead,
it acts at the pleasure of the executor. Prosecutors work under political
pressure most of the time, pressed for that very hurry of conviction-at the
cost of procedural justice. Contrast that with Tunisia where the public
prosecutor enjoys the same constitutional protections as those afforded judges;
thus shielding that office from political reprisals and focusing it on
upholding the rule of law.
In Bangladesh, the legal profession
has been an affair of politics as well. Lawyers are nowadays categorized as per
their political party allegiance, massive conflict occurring at every step in
the courtroom, thus destroying public faith in the judiciary. According to the
Basic Principles on the Role of Lawyers set forward by the UN, lawyers should
carry an ethical duty with a heavy accent on professional independence-very
little of which is respected in the adversarial setup of Bangladesh.
Furthering that, police power has
generally been accused of human rights violations and partisan enforcement.
Countries such as Sierra Leone and Indonesia have been proposing and in some
cases implementing judicial oversight or mixed judicial commissions, whose
mandate would be to maintain police accountability and guarantee the integrity
of investigations.
As a matter of fact, the penal code
of Bangladesh is obsolete. The Criminal Procedure Code, the residue of the
British era, dates from 1860 and still remains in force. Basically, this old
framework grants excessive powers to the police while curtailing fundamental
rights. Penal laws in Bangladesh, unlike those of India and Pakistan, continue
to be instruments of repression because
that side changed their codes in conformity with constitutional rights.
If Bangladesh wants to keep away
from recurring judicial subordination and political injustices, it needs to
embrace deep structural reforms. A roadmap by Justice Syed Refaat Ahmad, with
comparative global practices, would give such a pragmatic path. It needs to not
only affect laws but also the culture and institutions.
An independent judiciary is the
very essence of democracy. It works fairly and equitably against all, holds
governments to account, and provides recourse to aggrieved citizens. For
Bangladesh, hence, forging that foundation needs immediate priority, for delay
can only deepen the imbroglio of justice and weaken public confidence in a
sacrosanct institution-the Courts.