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Independence of judiciary: role of Supreme Court
By Justice Naimuddin Ahmed
I
A grave crisis
At a seminar on ‘judicial reforms and independence of judiciary’, recently held in the auditorium of the Supreme Court Bar Association, the chief justice, M Ruhul Amin, speaking as chief guest assured the nation, ‘The Supreme Court has always played its role in the past at any critical juncture of the nation. It is doing so now and will be doing so in future.’ (See New Age; August 11, 2007, p1).
His bold assertion that the Supreme Court has always played its proper role at all critical juncture facing the nation and ‘is doing so now’ clearly indicates that the nation is at the present moment passing through a critical juncture. At the same seminar, speaking as a special guest, former chief justice Mahmudul Amin Chowdhury ‘proposed that a committee, led by the chief justice, should be formed on the appointment of judges’. He also proposed that a seven-member committee should be formed and the committee ‘should also include two judges from the Appellate Division and the High Court Division each, the attorney general and the president of the Supreme Court Bar Association. (See New Age, August 11, 2007, p1)
Mr Amir-Ul-Islam, president of the Supreme Court Bar Association, echoed Justice Mahmudul Amin Chowdhury in questioning the dubious way of appointment of judges of the Supreme Court and supported Justice Chowdhury’s suggestion of selection of judges by a selection committee.
II
The genesis of judicial independence
After the French Revolution overthrew the French monarchy, the French National Assembly first of all adopted Declaration of the Rights of Man and of Citizens in 1879.
In 17 articles of this declaration all possible rights which the citizens of a free country must enjoy as free men have been embodied. In the history of the democratic world, this document for the first time specified the inviolable fundamental rights of each and every citizen without discrimination, and it inspired the constitution-makers of all democratic countries to embody those rights in their respective constitutions, In fact, the entire civilised world is indebted to the French National Assembly for adopting this declaration which is one of the greatest landmarks in the evolution of modern politics and modern democratic institutions, ‘We recognise,’ writes IK Gujral, former prime minister of India, ‘that one of the greatest landmarks in the evolution of modern politics was the adoption by the French National Assembly, in August 1789, of the Declaration of Man.’
The declaration inspired the makers of the US constitution not only to guarantee the basic and fundamental rights of all citizens of the United States by embodying them by Amendments I to X which are known as the Bill of Rights of the American citizens proposed by the US Congress on September 25, 1789 and ratified on December 15, 1791 but also ensured separation of powers between the three organs of the state – the executive, the legislative and the judicial – so that the judiciary in the United States may be completely independent of any interference by the other two organs. Although the US constitution has not specifically recognised the independent status of the judiciary, it is now well-settled by various pronouncement of the US Supreme Court that the judiciary is the only authority to apply the constitution and the laws without any overt or covert interference either by the executive or the legislature. The US Supreme Court played a significant role in establishing the principle of separation of powers and the respective jurisdictions of the three organs which in turn guaranteed complete judicial independence. Former Supreme Court Justice Evans Hughes once remarked, ‘We are under a Constitution, but the Constitution is what the judges say it is.’
Since the adoption of the first written constitution in the world by the United States, all the democratic countries around the world modelled their respective constitutions according to the principles laid down therein. The constitution of Bangladesh is no exception.
III
What is judicial independence
At the Tenth Commonwealth Magistrates’ and Judgers’ Conference at Victoria Falls, Zimbabwe, on August 22-26, 1994, Professor Anthony Allot presented an illuminating background paper on the independence of judiciary in Commonwealth countries. In this paper he indicated how even the most advanced countries, such as the United Kingdom, suffer from embarrassing obstacles against preserving and upholding the independence of the judiciary.
But what is meant by independence?
The dictionary meaning of ‘independence’ is ‘not subject to the control of any person, country, etc; free to act as one pleases; autonomous… not affected by others….’
To conceive that a judge must be allowed such absolute independence as is lexicographically defined above is simply absurd, because, judges are, first of all, ‘constrained by, and follow, existing rules and procedures;’ secondly, ‘by less tangible requirements, such as, those of courtesy, fairness (audi alteram partem, etc.), cultural traditions, the etiquette of the law court and the profession;’ thirdly, ‘a judge or magistrate is not free to act perversely, unfairly or for ulterior motives;’ fourthly, ‘the judge must rightly be influenced by others in performance of his/her judicial duties… there is no point in advocacy or pleading if it does not affect judicial decisions;’ and lastly, ‘the judge must be sensitive to guidance and directions reasonably given my those of superior rank to him/her, i.e. his/her appellate authorities or superintending authorities.’ Subject to the above constraints, judicial independence has been defined as ‘protection or immunity from unlawful or improper influences, direct or indirect, on the way in which the judicial officer carries out his/her judicial functions.’ It has also been argued that judicial independence can never be absolute but is relative and subject to the above constraints.
We have now to examine how far the judiciary in Bangladesh enjoys independence in terms outlined above.
IV
The extent of judicial independence in Bangladesh
In the seminar at the Supreme Court Bar Association, the chief justice described the present unfortunate condition prevailing in the judiciary as a whole and in the Superior Court, in particular.
Former chief justice Mahmudul Amin Chowdhury dealt with the appointment procedure of the judges of the Supreme Court and suggested remedial measures. He also suggested complete restoration of the original constitution of 1972, as it had been before the Constitution (Fourth Amendment) Act, 1974. But, in order to revert to the original constitution of 1972 constitutional amendment will be necessary and the constitution can be amended only by parliament by following a special procedure laid down in article 142 of the constitution. So, Bangladesh has to wait until the parliament is constituted if Justice Chowdhury’s suggestion relating to appointment of the Judges of the Supreme Court has to be adopted, because, in the constitution, the procedure of appointment is clearly laid down.
Appointment of judges in the judiciary is only one of the various aspects of securing independence of the judiciary. There are other aspects as well. It has already been observed above that judicial independence means ‘protection or immunity from unlawful or improper influences, direct or indirect, on the way in which the judicial officer carries out his/her judicial functions.’
So, first of all, it has to be found out whether the judiciary in our country suffers from any obstacles or undue influences in the discharge of its functions and if so, what are these obstacles or how undue influences are exercised; and then, ways and means have to devised to remove them.
The Supreme Court can play its role in restoring judicial independence in the country and protect and preserve it only after necessary amendment of the constitution by the parliament.
Justice Naimuddin Ahmed is a retired Supreme Court judge
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