Staff Correspondent
The High Court on Wednesday came down heavily on the government for delaying the passage of two ordinances to make the judiciary independent of the executive.
The High Court bench of Justice ABM Khairul Haque and Justice Abdul Hye, in a rule issued suo moto, also asked the government to explain by March 19 the legality of the judicial functions done by the judicial magistrates and metropolitan magistrates after February 24 when the two ordinances ceased to be in force.
The court also asked the law secretary and the Supreme Court registrar to explain the authority of the judicial magistrates to conduct judicial activities after February 24.
The lower judiciary was made independent of the executive on November 1, 2008 with the establishment of judicial magistracy by the Code of Criminal Procedure (Amendment) Ordinance 2007 and the Code of Criminal Procedure (Second Amendment) Ordinance 2007, promulgated by the immediate-past interim government.
The ordinances, promulgated in accordance with the Supreme Court directives detailed in the Masder Hossain case, widely known as the separation of the judiciary case, brought about changes in the Code of Criminal Procedure.
The ordinances were placed in the parliament at its first sitting on January 25, but they were yet to be passed into laws.
As the ordinances were not passed by February 24, when a period of 30 days from their placement in the parliament expired, they ceased to be in force, according to constitutional provisions, the court said.
Before issuing the rule, the court solicited opinions of legal experts Mahmudul Islam, also a former attorney general, and M Zahir during the hearing in a writ petition on the appointment of staff to assist the judicial and metropolitan magistracies.
The lawyers were on the committee which reviewed the ordinances made by the interim government.
They told the court the expert panel had recommended passage of the ordinances into laws.
The rule was issued at a time when the parliamentary standing committee on the law ministry was reportedly facing difficulties in the preparation of its report on the Code of Criminal Procedure (Amendment) Bill 2009 due to pressure from the executive officials of the government to retain their judicial powers.
The government on March 2 placed in the parliament the Code of Criminal Procedure (Amendment) Bill 2009 proposing same amendments, the ordinances brought about, to the code, repealing the ordinances.
‘Once the bill is passed by the parliament, the judicial activities of the judicial magistrates after February 24 will be legitimised,’ the law minister, Shafique Ahmed, told reporters after the meeting of the committee held Monday night.
‘The bill has a “saving clause” to legitimise the judicial activities so far done by the judicial magistrates,’ he said.
Section 104(2) of the bill says the activities done under the ordinances, which have ceased to be in force, will be deemed to have been done under the bill.
The parliamentary standing committee on Monday also heard arguments of the Bangladesh Judicial Service Association, Administrative Service Association and the Police Association, who are now at loggerheads over the separation of the judiciary.
The Administrative Service Association, at the meeting, demanded retaining judicial powers for the executive officials, who had exercised judicial powers before November 1, 2007.
The association argued the judicial procedures in a criminal case should be conducted by executive magistrates before the case was ready for trial, said sources attending the meeting.
‘The parliament will decide whether the ordinance will be further amended to provide judicial powers for executive officers,’ Shafique said.
Most of the members on the committee, however, said the bill should be passed immediately and then, if necessary, the law might be amended further later, the sources said.
‘We have heard the leaders of the three associations and the parliament will finally decide the issue,’ Awami League lawmaker Abdul Matin Khasru, also a member on the committee and former law minister, told New Age.
Experts on law and the judiciary, however, said the re-empowerment of executive officials with judicial powers would be a violation of the directives of the Appellate Division of the Supreme Court and also constitutional provisions.
The constitution stipulates, ‘The state shall ensure the separation of the judiciary from the executive organs of the state.’
In accordance with the constitutional scheme and guideline, the judiciary has been made independent of the executive and that too in line with the directives of the highest court, the experts said.
Supreme Court lawyers M Amirul Islam, also the chief counsel for the petitioners in the Masder Hossain case, Khan Saifur Rahman, Sigma Huda, also a rights activist, Shahdeen Malik, Tanzib-ul Alam and Fawzia Karim expressed the similar views.
Abdul Matin Khasru also said the government could not go beyond the Appellate Division’s directives and the constitutional guideline.
The Appellate Division on December 2, 1999, in its judgement in the Masder Hossain case, detailed the 12-popint directive on the government to make the lower judiciary independent of the executive in six months.
The then incumbent and all the successive governments have had repeated extension to the timeframe for the implementation of the directives. The BNP-led alliance government, at the fag end of its tenure, made four sets of rules on judicial services and a bill for the amendment to the Code of Criminal Procedure.
The Appellate Division, however, on January 10, 2007 declared the rules and the draft bill for the amendment to the code contrary to its directives and ordered the government to make fresh rules and ordinance on the amendment to the code.
The interim government accordingly framed fresh rules on January 16 and promulgated the
Code of Criminal Procedure (Amendment) Ordinance on February 13. The ordinance came into effect on November 1, 2007 making the lower judiciary independent of the executive.
Courtesy of www.newagebd.com
