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LOOKING BACK: 5 YEARS OF AL GOVT

Judiciary: not fully independent yet

M Moneruzzaman

The government has neither restored the original provisions on the judiciary through the 15th amendment to the constitution nor established a separate secretariat under the Supreme Court to fulfil its 2008 election pledge that the ‘genuine independence and impartiality of the judiciary will be ensured.’
The election manifesto that the Awami League president, Sheikh Hasina, now the prime minister, released on December 12, 2008 before the general elections had also said that the responsibility for controlling and supervising the lower judiciary would be given to the Supreme Court.
Legal experts said that the government had failed to frame rules that set out the necessary qualifications a lawyer to be appointed a Supreme Court judge, establish a Supreme Court secretariat and a permanent ‘attorney general’ service of the government, or amend the constitution to restore Supreme Court’s full control over the lower judiciary.
As a result the transfer, promotion and posting of judges are still being carried out by the law ministry, though in consultation with the Supreme Court, affecting the independence of the judiciary, they said.
Former adviser to the military-backed interim government AF Hassan Ariff, also former attorney general, said that the Supreme Judicial Commission Ordinance was promulgated in 2008 on appointment of Supreme Court judges but the government had not ratified it, although controversies over such appointments caused chaos in
the highest judiciary throughout its five-year tenure.
‘If this had been ratified, an appointment would be made in accordance with the recommendations of the commission consisting of the chief justice as chair, the law minister, three senior most Appellate Division judges, two senior most High Court judges, the attorney general and the Supreme Court Bar Association president,’ said Ariff referring to the ordinance. 
He said that an ordinance for the establishment of a separate secretariat for the Supreme Court had also not been approved by government.
‘The lawyers think that the independence of the judiciary might be further strengthened if both the ordinances were in place,’ Ariff said.
Supreme Court lawyer Shahdeen Malik, also BRAC University school of law chief, pointed to Article 95(2)(c) of the constitution that stipulated that a judge must have ‘such qualifications as may be prescribed by law for appointment as a judge of the Supreme Court.’
‘The last caretaker government had promulgated an ordinance which was not suitable but the government could make or enact a suitable law to ensure appointment of qualified persons as Supreme Court judges,’ he added.
‘The influence of the executive branch on the lower judiciary continues as the full control of the Supreme Court over the appointment, posting, transfer and promotion of lower court judges is yet to be established,’ he said.
A senior government secretary said that there was a move to establish a permanent attorney service of the government but it could not be done as a minister opposed it. 
Supreme Court registrar AKM Shamsul Islam, however, said that the Supreme Court was yet to receive any response from the prime minister’s office to the letter issued in November 2012 for inauguration of a separate secretariat for the judiciary.
He said that the independence of judiciary remained just on paper and the lower judiciary would not come under the full control of the Supreme Court until Articles 115 and 116 of the constitution [dealing with the subordinate courts] were amended.
The existing Article 115 reads: ‘Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the president in accordance with rules made by him in that behalf.’
The government enacted the fifteenth amendment to the constitution on June 30, 2011, without heeding to an observation made by the Supreme Court.
‘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 judgement declaring the fifth amendment to the constitution void which was cited by the government as a reason for the fifteenth amendment.
The judgement had 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 original article 115 stated, ‘Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the president — (a) in the case of district judges, on the recommendation of the Supreme Court; and (b) in the case of any other person, in accordance with rules made by the president in that behalf after consulting the appropriate public service commission and the Supreme Court.’
Although the 15th amendment replaced Article 116 by a new one, the text of the article was not changed.
The existing Article 116 says, ‘The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the president and shall be exercised by him in consultation with the Supreme Court.’
The original Article, however, vested the power in the Supreme Court: ‘The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the Supreme Court.’
In its election manifesto released on December 28, 2013 for the January 5 elections, the party, however, pledged again to ensure the dignity and independence of judiciary.




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