Let bureaucratic self-preservation not derail judiciary separation

Editorial, NewAge, October 22, 2007. Dhaka, Bangladesh

THE administration cadre appears to be serious about obstructing the implementation of the seven-year-old set of Supreme Court directives, issued to the government, to separate the judiciary from the executive branch of the state. While the government is legally obliged, by a Supreme Court order, to implement the directives by the first of November, a section of the administrative cadre is opposing the process, already set in motion, on the plea that the implementation of the directives would hamper governance. The members of the administration are right in that that it would be a difficult for the executive to govern the country the way, the undemocratic way to be precise, it has been for decades now. However, to initiate the process of genuine democratic governance, an independent judiciary, along with other things, of course, is a must.

In the modern political world, a democratic state is visualised as a machine consisting of three separate organs – legislature, executive and judiciary – with adequate checks and balance between them. The people being the source of power in a democratic dispensation, their elected representatives constitute the legislature, which makes law for the citizens, and the government as well, within the framework of a constitution, which, again, is nothing but the expression of the people’s will. The executive, the government in other words, is supposed to govern the country in accordance with the law formulated by the legislature, while the judiciary is to oversee whether or not the executive is governing in accordance with the dictates of law as well as the constitution of the state. It is also the responsibility of the judiciary to censure the executive, if and when the latter oversteps its legal and constitutional boundary. Understandably, the judiciary cannot play its democratically desired role to punish the executive for any violation of law, and thus put it back on the right track, if the former cannot function independently of the control of latter. And here comes the democratic importance of separating the judiciary completely from the executive.

Notably, the constitution of Bangladesh state exactly envisioned this legal scheme, which still remains unimplemented. The Supreme Court, which has not always maintained democratic norms, issued the directives in December 1999, understandably to implement the democratic constitutional scheme, which is now being obstructed by the administration cadre reluctant to the power of judicial magistracy, which is supposed to be the job of the judicial cadre. Bureaucratic self-preservation is the source of such undemocratic and un- constitutional obstruction by the administration officials. The administration cadre, however, is not the only group to be held responsible for obstructing the freedom of the judiciary; the political parties who ruled the country since 1999 – the Awami League and the Bangladesh Nationalist Party – also made all possible efforts to delay the process of implementation of the Supreme Court directives. The objective of such foot-dragging was nothing but using the judiciary for partisan political purposes, despite the fact that the parties in question had repeatedly made election pledges to facilitate the independence of the independence. The political parties almost completed the process, by way of enacting necessary laws and formulating rules, of implementing the court directives – thanks to sustained legal pressure of the Supreme Court and political pressure of civil society.

The ‘caretaker’ government of Fakhruddin Ahmed is now legally obliged to implement the court directives on November 1. In this circumstance, we only hope that the government would comply with the highest court of the country, braving the obstruction of the administration cadre, and thus contribute to the democratic growth of the state.


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