Empowering Judiciary in Bangladesh
By Nava Thakuria
January 14, 2008
Bangladesh, though it had witnessed an eventful 2007 amidst the emergency, postponement of general election, human rights violation and the arrest of some senior most political leader, had ended the year with some positive initiatives for empowering judiciary in the poverty stricken country. Waiting for the general election within this year, the South Asian country had attracted international media attention, while its interim government separated the judiciary from the administrative clutches.
In fact, it was a big leap in search of quality democracy for Bangladesh, which had emerged as a sovereign country in 1971. Amidst apprehension against the military backed caretaker government, which took control over the country on January 12, the great news broke from the land of Bengalis. The populous country, surrounded by India, Burma and the Bay of Bengal, was in global media on November 1, the day its interim government announced the formal separation of its judiciary. And the declaration came from none other than Dr Fakhruddin Ahmed, the chief adviser to the caretaker government in a function held in the capital city Dhaka.
Inaugurating the Dhaka District Judicial Magistracy and Dhaka Metropolitan Magistracy, the chief of the government flagged off the journey of an independent judiciary in Bangladesh. "It is a great day for the nation," said Dr Ahmed, a former World Bank official, turned the head of the interim government, adding, "The judiciary is fully independent of the executive from today and from now the courts and the judges will establish rule of law without the interference of the executives."
The ceremony in the capital city coincided with the celebrations in 64 district judicial magistracies and three metropolitan magistracies of Bangladesh as well. The government has already created a total of 4,273 posts for the judicial magistracy (including 655 posts of judicial magistrate) to facilitate an effective and independent judiciary system in the country.
The civil society, media and the political parties of Bangladesh welcome the development. Haroon Habib, a Dhaka based freedom fighter turned journalist said, "The separation of judiciary was an epoch-making step, and should be considered a major milestone in Bangladesh's judicial history despite the fact that it was done when there is no political government." Appreciations came from its development partner countries like the US, UK and Germany saying that was as an important step towards strengthening democracy in Bangladesh.
The Supreme Court of Bangladesh ruled in favour of separation of the judiciary (from the executive) eight years back, but it was implemented by neither the government of Sheikh Hasina (1996-2001) nor that of Begum Khaleda Zia (2001-2006). The Awami League government of Ms Hasina had reportedly initiated a few positive steps to honour the directives of the apex court (though failed to complete the process), but the Bangladesh Nationalist Party led government of Begum Zia did nothing in this direction.
Bangladesh has now two sets of magistrates namely judicial and executive. According to the amended criteria (Code of Criminal Procedure), the judicial magistrates, primarily the judicial officers will run the courts hereafter in the country. They will be appointed by the Supreme Court and also be liable to the apex court of the country. The executive magistrates, including the deputy commissioners have been stripped of judicial powers and will exercise only executive powers.
As Bangladesh does not have provinces (thus avoiding power sharing with the province chief ministers), the deputy commissioners emerge as the most powerful executives after the Prime Minister of Bangladesh. They were however overburdened and those executive magistrates had to perform their duties in a complex structure. While their primary responsibilities remain as revenue collectors, they have to play the role of administrators too. In addition, the executive magistrates had to deliver justice, though most of them lacked credible knowledge of law.
The challenges now lay ahead of the judges and other judicial officials. Barrister Mainul Hosein, the Adviser for Law, Justice and Parliamentary Affairs to the caretaker government described, "We (the government) have separated the judiciary from the interference of the executive not as a favour to the judges, but to assign them with the heavy responsibility of upholding justice and contributing to good governance as contemplated by the Constitution."
The initiative to get the judiciary separated in Bangladesh received momentum following the Supreme Court directive that came after a writ petition filed by Masder Hossain (who was then a sub-judge in Dhaka) with hundreds of other colleagues in 1995. The High Court on May 7, 1997 delivered the verdict in favour of the separation of judicial services from other services in Bangladesh. The country's finance ministry appealed against the verdict in the Supreme Court. But the apex court dismissed the appeal and pronounced its judgment on December 2, 1999 detailing a 12-point directive.
The British during their colonial rule in the Indian sub continent (comprising today's India, Pakistan, Bangladesh and parts of Burma) introduced the magistracy, where collectors were empowered with judiciary authority. It was in fact with an inherent aim to maintain direct control over the magistracy by the colonial government.
The demand for separation of judiciary started gaining momentum in the time of colonial rule itself. Awami League, since its inception in 1949 raised a voice for separation of power and it continued even after Bangladesh was created. The provision for separation of judiciary was introduced in Bangladesh's constitution saying, "The state shall ensure the separation of the judiciary from the executive organs of the state."
Soon after the government declaration (of separation of judiciary in Bangladesh), a satisfied Masder Hossain asserted that the initiative would prove a success in due course of time. Answering queries of local reporters, Masder Hossain (now a judge) added, "Oppressed people suffered a lot of harassment on way to get justice. I only wish with the separation of judiciary, justice seekers get fair justice swiftly without spending much."
But the suspicion and confusion about the new legal system are still paddling in the minds of the people. Mustafa Kamal Majumder, the editor of The New Nation, a Dhaka based daily says, "It is definitely a long felt demand met. But the question arises, how efficiently the sufficient number of judges (more precisely to talk about the quality) are appointed to fill the void left by administrative officers."
Statistics reveal that 484,832 cases (as of February 28) are pending with the courts of magistrates across Bangladesh that has a population of over 140 million. Moreover, for a layman, justice delayed is always understood as justice denied. The amazing trial of strength of the independent judiciary in Bangladesh will lie on how it deals with the trials of some very prominent politicians including the two former premiers (Begum Zia and Ms Hasina), who are presently serving jail terms for corruption and misuse of power during their respective reigns.