Despite the lapses of six years since the separation of judiciary from executive, the government is yet to form a separate secretariat for the judiciary. The lower judiciary still remains on paper as well as the law regarding the appointment of the High Court judges is yet to be framed due to the lack of separate secretariat for judiciary. The Supreme Court could not play its due role over the lower judiciary for not establishing separate secretariat, according to a high official of the apex court.
Legal experts opined that the lower judiciary would not be independent of the executive until the secretariat was established.
In the absence of the secretariat, the government is carrying out the transfer, promotion and posting of judges without taking opinions from the apex court although there is a provision of consultation with the Supreme Court in this regard, they said.
The government in the past five years has taken no specific initiative in this regard although the ruling Awami League in its election manifesto pledged that the ‘genuine independence and impartiality of the judiciary will be ensured.’
The manifesto that the Awami League president, Sheikh Hasina, now the prime minister, released on December 12, 2008, before the general elections, also said that the responsibility for controlling and supervising the lower judiciary would be given to the Supreme Court.
The government has also kept missing deadlines the Supreme Court set for the implementation of its 12-point directives the court issued on December 2, 1999 in their entirety although the judicial magistracy was
made ‘independent of the executive branch’ of the state on November 1, 2007 in keeping with the directives.
The Supreme Court registrar, AKM Shamsul Islam, said, ‘The independence of the judiciary remains on paper and the lower judiciary will not come under the full control of the Supreme Court until Articles 115 and 116 of the constitution are amended.’ ‘We are, however, of the view that unless Article 115 and 116 are restored to their original position, the independence of the judiciary will not be fully achieved,’ the Appellate Division observed in its verdict declaring the fifth amendment to the constitution void, citing which the government made the fifteenth amendment.
The verdict also said: ‘It is our earnest hope that Article 115 and 116 of the constitution will be restored to their original position by the parliament as soon as possible.’
The fifteenth amendment, however, had brought about no change to Article 115, which empowers the president absolutely to appointment judges in the lower judiciary.
In 1999, the Appellate Division of the Supreme Court gave a landmark judgment in Secretary, Ministry of Finance v Masdar Hossain (20 BLD (2000) AD 141) re-affirming the constitutional mandate for independence of the judiciary and laid out a roadmap to achieve separation of the judiciary from the executive with respect to the lower courts, both civil and criminal.
The Bangladesh Judicial Service Commission since its establishment in 2007 has conducted five judicial service examinations, and accordingly recruited and appointed judges to the lower judiciary. However, no separate secretariat has been established for the judiciary, and thus appointment, transfer, promotion of the judges of lower judiciary are still administered by the executive through the Ministry of Law, Justice and Parliamentary Affairs, instead of the office of the Chief Justice.
-With The Independent input
