Make the judiciary apolitical and enact a new Police Act
The Business Standard reached out to two experts and asked what reforms are necessary for the police force – which has been used as a killing squad by the Hasina regime – and the judiciary system
In the last 15 years, institutions such as the judiciary and the police fell prey to the excessive politicisation by the Hasina government for partisan interests.
In the case of the police, "pervasive interference in the functions of the force" by the Sheikh Hasina regime was all too evident. The proof lay in the recruitment of the police members, for a start, which was marred by either bribe or nepotism rather than merit.
Evidenced by the unchecked rise of Benazir Ahmed, ex-IGP and Rab chief, and some other top officials such as DB Harun.
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Meanwhile, the judges and magistrate courts in Dhaka began to function amid security concerns after Hasina's ousting on 5 August. And, the lower courts at the district level have been left largely dysfunctional, as law officers failed to show up – again – for security concerns.
The Attorney General and some senior officials of the AG office also resigned, being accused of playing a partisan role – to name a few of the latest developments in the judiciary system in the post-Hasina era. This tells of how the judiciary system was under complete control of the toppled Hasina government and denied the ability to work independently.
Against this background, The Business Standard reached out to two experts and asked what reforms are necessary for the police force – which has been used as a killing squad by the Hasina regime – and the judiciary system.
'Under no circumstances should political affiliations influence the judiciary appointments'
Tabarak Hussain
Senior Advocate, Bangladesh Supreme Court
Before we discuss the specific reforms we are seeking, it's important to first understand why we want judicial reform.
Over the past 15 years or more, the judicial system has been tainted by partisan politics. Unqualified individuals have been appointed to various positions, including public prosecutors and even High Court and Supreme Court judges, based solely on political considerations. This has been happening for a long time, and we want to address these issues.
Our first demand in this regard is related to the appointment of Supreme Court judges.
The Constitution mentions certain qualifications for judges, and it also states that judges must have any other qualifications required by law. Unfortunately, even 53 years later, our country has yet to draft the law regarding the appointment of judges, let alone enforce it.
Our 1972 Constitution had provisions to ensure the independence of the judiciary. However, this was altered by the Fourth Amendment, which created a chaotic system and placed the judiciary largely under the control of the administration.
By "chaotic," we refer to the President's power to appoint judges.
Previously, the Supreme Court had a significant role in this process and functioned independently. For instance, when Mr Shahabuddin was Chief Justice, he once remarked, "The Chief Justice of Bangladesh is Mr Nobody," referring to the appointment of several judges without consulting him.
Before our independence, the Chief Justice of the Supreme Court was always consulted during the appointment of High Court judges. Although this was not mandated by the Constitution at the time, this practice was upheld; it was followed as a tradition.
During the first caretaker government, there was a proposal to restore the 1972 constitutional provision to make the Supreme Court fully independent, which involved amending Article 116. The government elected at that time promised to amend this upon assuming power. As a result, the caretaker government did not make the amendment, nor did subsequent governments.
Now that we have an opportunity, we do not want it to be missed. Therefore, we demand a constitutional amendment to grant full independence to the judiciary, which is our primary demand.
Our second demand is to implement the constitutional provision on judicial appointments by drafting a law. This law should ensure that those appointed have a strong understanding of the law and a good reputation in the legal field.
Additionally, for those coming from judicial service, appointments to the High Court should go to judges whose rulings reflect the wisdom and proper legal interpretation.
Furthermore, appointments under the Judicial Service Commission, especially in the lower courts, must be conducted properly, with examination questions designed to ensure that selected judges possess both merit and practical knowledge.
To that end, we propose that those appointed as assistant judges or magistrates in the lower courts should have at least two years of experience practising law alongside a High Court judge. This should be one of the criteria for eligibility, allowing them to understand the traditional and procedural aspects of court operations.
Nowadays, many individuals enter the legal field solely with advanced degrees. While having a good degree is valuable, practical knowledge is even more crucial in the legal field. We emphasise that those entering the lower courts as judges or magistrates should have both practical knowledge and strong educational qualifications.
Thirdly, under no circumstances should political affiliations influence the appointment of judges, justices and magistrates. This must be ensured, even when political parties are in power.
There was also another practice in the past – appointing experienced lawyers as judges. For example, the late Mahmudul Amin Chowdhury was appointed as an Additional District Judge in 1972 due to his skills and experience as a lawyer in the Sylhet Court.
This provision should also be retained, as it would be beneficial to utilise the experience of seasoned professionals. If not appointed to positions like assistant judge, they could be appointed to roles such as Joint District Judge, which would improve the judiciary.
These are our current thoughts, and we are working accordingly. We are trying to present these proposals in various forums.
'A new Police Act should be the first order of business'
Nurul Huda
Former Inspector General of Police (IGP)
The first order of business should be the enactment of a new Police Act to replace the present archaic legislation enacted in 1861.
The [existing] act makes it easier for others to abuse and misuse the police organisation because it gives the government the authority to exercise superintendence over the police, without defining the word superintendence or prescribing some guidelines to ensure that the use of power will be legitimate. The law is antiquated in its charter of duties, which is narrow and limited, and does not mandate the police to function as a professional and service-oriented organisation.
Police accountability is a crucial issue today. The advanced coercive, scientific and technical tools available to police necessitate stricter accountability measures. The current system is not only ineffective but also lacks public trust.
A gender-sensitive training strategy for police personnel on how to handle the growing number of cases of domestic violence, harassment at workplaces and sexual assaults is also integral to the police reform agenda.
The three areas that need urgent attention if police were to be credibly transformed into a public-friendly, service-delivery organisation are corruption, inefficiency and misbehaviour with the public.
Policies and strategies seeking to reduce corruption in the police are needed although enhancing police efficiency through true professionalism and transforming public-frightening police into a public-friendly outfit have not been very successful in South Asia.
Any police reform strategy will have to consider several other key variables such as the structure of the government, the role of the judiciary and political parties in the administrative affairs of the country.
