A crucial call for setting up judicial secretariat
A strong and independent judiciary, free from all forms of interference, is an important step to make the institution pro-people. For this, an independent judicial secretariat is needed
With the solemn spirit of the July Revolution, the people of Bangladesh are envisioning reforms in key institutions, including the judiciary, public administration, police, Anti-Corruption Commission, Election Commission, financial institutions, and health institutions.
Citizens are incessantly demanding that these institutions become pro-people, ensuring the delivery of services promptly, free of cost, and without harassment.
Responding to public demand, the interim government has already formed various commissions. Among these reforms, establishing the rule of law remains the highest concern for experts and citizens alike.
For too long, people have been deprived of fundamental human rights, freedom of speech, and justice. Their aspiration is to build a strong and independent judiciary, free from all forms of interference.
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Echoing the people's aspirations, Chief Justice of Bangladesh Dr Syed Refaat Ahmed addressed the district judiciary judges and the nation, outlining a roadmap for judicial reform. This notable programme was attended by judges from both divisions of the Supreme Court, the Law Adviser, the Attorney General, the Chairman of the Judicial Reforms Commission, the President and General Secretary of the Supreme Court Bar Association, and other dignitaries.
In his reform plan, the Chief Justice (CJ) emphasised the need for an independent judicial secretariat to ensure actual separation of powers, accountability, and transparency in delivering justice. He also declared a zero-tolerance policy against corruption in the judiciary.
While such declarations often remain unfulfilled, this time, the CJ launched a helpline for legal services and complaints about corruption in the judiciary. Notably, some actions have already been taken against allegations of corruption, marking a commendable initiative by the Chief Justice.
The government has already passed law on the appointment of Supreme Court judges following CJ's proposal. Additionally, the Supreme Court administration, under his leadership, made a draft rule regarding posting and transfer policies for district judiciary members. Earlier, the government also amended legal aid policy following CJ's proposal to ensure legal aid support for everyone considering socio-political circumstances.
Aligning with public demand, the CJ has submitted a comprehensive proposal to establish an independent judicial secretariat. This long-overdue proposal is currently under review by the Law Ministry. The Supreme Court has also submitted a concept paper highlighting the significance of such a secretariat, which is now being considered by the government.
In 1999, the landmark judgement in the Masdar Hossain case provided a complete guideline for the effective separation and institutional autonomy of the judiciary. Article 22 of the Constitution mandates the separation of the judiciary from the executive. However, no political government took concrete steps to implement this separation until 2007.
That year, the caretaker government led by Dr Fakhruddin Ahmed, despite bureaucratic resistance, took significant steps to separate the judicial magistracy from the executive branch. The government established a judicial service commission and framed regulations for the meaningful separation of the judiciary. Despite these efforts, they could not accomplish complete separation due to various challenges.
After one and a half decades, the call for fulfilling the mandate of the Masdar Hossain judgment is being renewed. The CJ is urging the government to ensure the separation and institutional autonomy of the judiciary, as declared in that landmark judgment. The judgment specified essential conditions for judicial independence, as outlined in Article 116A of the Constitution. These include security of tenure, salary, benefits, pensions, and institutional independence from the Parliament and the Executive. Institutional independence entails a separate body with full control and superintendence over its jurisdiction, free from all external interference.
In the Masdar Hossain case, Barristers Syed Ishtiaq Ahmed and Amirul Islam argued that the term "control" in Articles 109 and 116 must be reconciled. Barrister Ahmed contended that Article 116, in practice, vests control in the Prime Minister, as stipulated by Article 48(3) and Article 55(2) of the Constitution. These provisions state that the President must act on the advice of the Prime Minister, except in appointing the Prime Minister and the Chief Justice.
Originally, the 1972 Constitution granted the Supreme Court full control over subordinate courts. However, the controversial Fourth Amendment shifted control to the President, effectively placing it in the hands of the executive.
The Masdar Hossain judgment meticulously analysed these constitutional provisions and provided a complete guideline for effective judicial independence. After 25 years, the call for a judicial secretariat under the Supreme Court has gained traction among citizens, who have long suffered from executive interference in the judiciary, particularly during the last 15 years of political governance.
Legal experts believe that only an independent judicial secretariat can end government control over the district judiciary. Institutional control by an independent body is essential for effective separation, as mandated by Article 109 of the Constitution and the Masdar Hossain Judgment.
If established, the judicial secretariat would grant the Supreme Court authority over recruitment, transfers, and promotions of subordinate court judges, enabling the judiciary to independently ensure justice and equality. A strong and independent judiciary is indispensable for upholding the rule of law in any country.
In the aftermath of the unforgettable July Uprising, it is imperative for the interim government to heed the Chief Justice's proposal. Establishing an independent judicial secretariat would not only fulfil a constitutional mandate but also restore public faith in the judiciary.
Sayeed Shuvo is a judge and researcher of law. He can be reached at: [email protected].
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.
