Archive for the ‘Separation of Judiciary’ Category

Military dealing with case assignments in the Supreme Court and the systematic smothering of the judiciary

October 14, 2008

A Statement by the Asian Human Rights Commission (AHRC)

October 14, 2008 

The media reports alleging that it is in fact a military officer who decides the case lists in the Supreme Court of Bangladesh is a shocking revelation which sharply brings to light the militarised political context in the country. Barrister Rafique-ul Haque who is defending two former prime ministers of Bangladesh in graft cases revealed to the Bar and the media that an army major is occupying a room on the second floor of the Supreme Court Building and deciding which judge should decide what case in the country.

It has also been revealed that three senior lawyers, Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M. Amir-Ul Islam have received letters from anonymous sources stating that they are national betrayers and threatening the lawyers and the members of the judiciary with cross fire, which in the local context means assassination.

The Asian Human Rights Commission (AHRC) and several other national and international civil society organisations have reported that the current administration in the country is trying to smother judicial independence in Bangladesh by all possible means. The incidents cited above are the latest in a series of revealing acts where the army has infiltrated the judiciary to an alarming level. The recent reconstitution of High Court judges at the behest of the army is yet another example of this increasing interference.

Interference of any nature, however minor it may be, with the administrative and adjudicating function of the judiciary is a major setback for any country. Bangladesh need not look anywhere else to find shocking examples of how bad such interference could be. Pakistan, Burma, Nepal and Sri Lanka are immediate South Asian neighbours that have suffered severely from such interference with the function of their judiciaries. In Pakistan, however, the Bar was bold enough to challenge this interference when the independence of the judiciary and that of the lawyers was threatened by General Musharraf’s military regime.

The recent history of the administration of justice in these illustrates the fact that the judiciary is weak, subjected to executive control and sometimes even corrupt. The situation of Bangladesh in this regard is no different.

It is obvious that the judiciary in Bangladesh is fully aware of such interference by the executive and the military. In the context of the widespread fear psychosis in the country and the practice of impunity the judiciary may be unwilling to want to put up resistance against such interference. However, there is a widespread feeling among the lawyers and the people that executive and military interference must be resisted.

Threats received by lawyers and senior judges and even the recovery of explosives and explosions in the residences of sitting judges who challenge the current administration is proof that the current administration is bent upon silencing all opposing voices. Even the Bangladeshi media has fallen victim to this tragedy. Unfortunately some senior jurists within Bangladesh rally along with the administration, condemning anyone who opposes the current government and even directly and indirectly support the administration.

It appears that as of now the armed forces of Bangladesh is in absolute control of the government. The armed forces have literally transformed the administration into a puppet that dances to their tune.

So many of the important government posts are occupied by members of the armed forces that demilitarizing the country’s administration will take years. It is unfortunate that most of the country’s politicians are facing graft charges or have such tainted backgrounds that none of them dare to challenge this new status quo that is pulling the country into deeper corruption and nepotism. The support given by the World Bank and some other European countries to the military regime strengthens the militarization process in the country and makes the transformation into democracy and rule of law even more difficult.

The present situation can easily degenerate and the whole country may come under the grip of the military as has happened in countries such as Burma. It is the duty of all to prevent such a situation and it is particularly the duty of all civil society organisations and the international community to ensure that the militarization process should be brought to an end. In this context it is most important that the military presence in the Supreme Court office and other offices such as Sessions judges office, the Special Tribunal on Anti Corruption and the Judicial Magistrate’s Court should be brought to an end immediately.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Let bureaucratic self-preservation not derail judiciary separation

October 22, 2007

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.