1
The independence of Judiciary and
the necessity of the rule of law for
democratization in Bangladesh
Md.Azizur Rahman Dulu
Senior Assistant Judge
Nilphamari
Introduction: Bangladesh being a state of pledging
in the preamble of the constitution for
establishing a society free from exploitation has
the responsibility to work for this and it is of
course, necessary to find out the lacuna and taking
the measures so that no exploitation can be done
either by the persons appointed in the service of
this Republic or non appointed exploiters.
By instinct man is gregarious and lives in company
of his fellow beings. This has led to the emergence
of society and rules to regulate the conduct of the
members of the society. The association was not,
however, for mere companionship, but to achieve
various subjective matter and purposes. Dealings
between the individuals in the society invariably
resulted in disputes. The need to settle disputes
gave rise to leadership in the society and with the
problem of protection of life and property came the
concepts of allegiance and obedience.
2
By a slow and intermittent process of social,
economic and political evolution the State emerged
as an indispensable institution rub by an agency
called the government. Constitutional law is a set
of legal rules which regulate the structure of the
organs of government, their5 functions, and their
relationship with each other and with the citizens.
Power has to be conceded to the State for the sake
of ordered society, but every power given to the
State makes a corresponding inroad into the bundle
of rights and liberty of individuals. Gone is the
day of laissez-fair when the individuals hardly
felt the existence of the government. The vast
explosion of population, the momentous advancement
of technology and the resulting perceived welfare
needs of the complex modern society have mind
pervasive governmental control inevitable. In such
a situation the life of individuals is sure to
become intolerable if the State can exercise
unfettered or arbitrary power. Hence, the modern
emphasis is on constitutionalism and constitutional
government which not only recognize the need for
governmental power, but also insist on limitations
on the power of the government. Western
institutional theorists have concerned themselves
with the problems of ensuring that the exercise of
governmental power, which is essential to the
3
realization of the values of their societies,
should be controlled in order that it should no
itself be destructive of the values it was intended
to promote1
In believing a Greek old proverb the ignorant
judges are calamitous for the people I would like
to say simply that the judicial service of
Bangladesh and the rule of law for democratization
are inter connected. Without the proper function of
the judicial service of Bangladesh, the rule of law
cannot be established. Now the question comes to us
that whether the judiciary functions properly and
if not what reforms should be made for proper
function of the judiciary. Here I have pointed out
some bad scopes or sectors for which the judges or
the judicial magistrates of sub-ordinate courts of
Bangladesh cannot work independently like the
judges of the Supreme Court of Bangladesh. Of
course the judges of the apex Court are independent
except the formation of the benches time to time by
the Chief Justice of Bangladesh. There is no set
principle or guidelines like Iran for which the
benches of the apex Court shall be formed and there
will be no abuse of the discretionary power of the
Chief Justice of Bangladesh. I am not telling that
the Chief Justice of Bangladesh has or has not
4
abused his discretionary power in framing the
benches but focusing the point of law that is,
article 100 of the Constitution of the Peoples
Republic of Bangladesh, provides that 'The
permanent seat of the Supreme Court shall be in the capital,
but sessions of the High Court Division may be held at such
other place or places as the Chief Justice may, with the
approval of the President, from time to time appoint and for
which there is a scope of abusing the discretionary
power which is solely depended on the mentality of
the person holding the said authority. However,
besides this, I am telling here what the obstacles
are for the judges of the sub-ordinate courts of
Bangladesh for establishing the rule of law and
what reforms at least within the existing legal
framework should be made for ensuring the rule of
law and the democratization.
1.1 Legal framework
Article 137 of the Constitution deal with the term
legal framework of Judicial Service of Bangladesh
as the said article provides the scope of
establishing one or more public service commission
for Bangladesh. The Appellate Division of the
Supreme Court of Bangladesh in its judgment passed
in Civil Appeal no.79 of 1999 commonly known in the
Masder Hossains case that-
5
It is declared that the word appointments in
Article 115 means that it is the president who
under Article 115 can create and establish a
judicial service and also a magistracy exercising
judicial functions, make recruitment rules and all
pre-appointment rules in that behalf, make rules
regulating their suspension and dismissal but
Article 115 does not contain any rule-making
authority with regard to other terms and conditions
of service and that Article 133 and Article 136 of
the Constitution and the Services (Reorganization
and condition) Act, 1975 have no application to the
above matters in respect of the Judicial service
and magistrates exercising judicial functions and
for this declared law of the apex Court, the
establishment of judicial service commission of
Bangladesh was done.
Bangladesh Judicial Service Commission has been
established in 2007 by the rule
, i.e. Bangladesh Judicial
Service Commission Rule, 2007. According to rule
3(2) of the Bangladesh Judicial Service Commission
Rule, 2007, the Commission consists of 11 members
headed by its Chairman who is to be a Judge of the
Appellate Division of the Supreme Court nominated
by the Hon. President in consultation with Chief
6
Justice. Other members of the Commission includes-
(a) two judges of the High Court Division nominated
by the President in consultation with the Chief
Justice (b) a member of the Law Commission
nominated by the President (c) Attorney General as
ex-officio member (d) the Secretary of Ministry of
Establishment as ex-officio member (e) the
Secretary of Finance as ex-officio member (f) the
Secretary of the Ministry of Law, Justice and
Parliamentary Affairs as ex-officio member (f) the
Dean of the Law Faculty of any one of three leading
public university i.e. Dhaka or Rajshahi or
Chittagong University nominated by the President
(g) the Registrar, Supreme Court as ex-officio
member and (h) the District Judge, Dhaka as ex-
officio member. There is also a full fledged
Secretariat to assist the Commission. A District
Judge of the service functions on deputation as the
Secretary of the Commission Secretariat. 2
1.2 Recruitment procedure and
recommendation:
The recruitment of process Bangladesh Judicial
Service Commission is almost same of Bangladesh
Public Service Commission. It takes a preliminary
(multiple choice question formats) examination,
Written examination and then viva voice. According
7
to Rule 5 of ,
2007 Judicial Service Commission conducts the said
preliminary examination and the applicants having
45% marks in said examination will be qualified for
written examination and viva voice of 1100 marks.
Among these 1100 marks, 400 marks will be from the
compulsory general subjects and another 400 marks
will be from compulsory law subjects and 200 marks
will be from optional law subjects and 100 marks
will be from viva voice. According to rule 6 of the
said Order 2007, the said Commission can conduct
total 500 marks examination including viva voice.
On an average, one applicant will have to have 45%
marks of the written examination and separately he
will have to have 45% marks in the viva voice and
if any applicant gets below 25% marks in a subject,
it will be deemed that he has not got any marks in
that subject. The successful applicants in written
examination and viva voice will have to appear for
health test. Thus the recruitment process is
conducted by the said Commission.
Recommendations: Julian Paul Assange, an Australian
computer programmer, political/internet activist,
publisher, and journalist and founder of WikiLeaks,
supports the free dissemination of government
data.3 My recommendation for better recruitment is
8
to take the technological help in respect of
recording the recruitment procedure and to show the
recorded video particularly the viva voice phase so
that the people can understand at least that the
recruitment is fair and reasonable. Almost, all the
time, it is beyond the capacity of the common
citizens to understand as to the viva voice
procedure and their markings. I am telling to
remove the lacuna of not understanding the quality
assessment procedure. For example, when a Judge
presides his Court and after both the parties
delivers his judgment in a disputed matter, both
parties, their legal practitioners all other
connected and non connected persons being present
can observe the entire procedure and the judgment
based on the findings or reasons but the same is
not possible in a process of recruiting the persons
to be appointed in the Civil Service of Bangladesh.
Thats why, the entire recruiting procedure should
be recorded and viewed to the citizens of the
State. It is necessary to mention that, a Judge
holding a Court openly having the access to all to
know and observe can understand the weak points and
strong points as to the disputed matter and even
the correctness or the incorrectness of the
findings or reasons given by the said Judge. For
this open functioning of a Judge, it is very
9
ascertainable whether a Judge gives his judgment
either correctly or incorrectly and the word
incorrect includes also the corruption. According
to Transparency International the following things
should be done; (1). The mark sheet of the successful
candidates should be given to the examinees on
compulsory basis immediately after the result is
published ;(2). The result sheet of all examinees (both
successful and unsuccessful) must be published on the
website. (3). Existing restrictions against challenging
the result of examinations should be immediately
abolished.4
Besides these, quota system should be abolished as
our Constitution or any law has not given the
definition and the factors of opting backward
section of the citizens. Article 29(3)(a) of our
constitution though provides the quota system for
backward section of the citizens for the purpose
of securing their adequate representation in the
service of the Republic but there is no mechanism
or procedure for determining the necessity and time
frame of the said quota system. As for example, A
man in our village had seven sons and two of them
10
are freedom fighters and government servants and
financially solvent. If their children get the
benefit of quota system, how can we determine them
as backward section of the citizens while other
sons being poor are not getting the said benefit
and hence Professor M. Abdul Wahhab Dept. of Public
Administration, University of Chittagong,
Bangladesh has re uttered correctly that The quota
policy as enshrined in the constitution is an
exception for the advancement of backward sections
in the society. Hence quota in no way can supersede
the universal principle of merit for ensuring equal
employment opportunities for all citizens without
any discrimination. So quota of 40-55 percent as
practiced in Bangladesh with different executive
orders/rules is against the spirit of constitution.
Since after liberation in 1971 till date majority
posts of the civil services have reserved for the
people of preferred groups under quota. Moreover,
quota has always been implemented without
transparency. It is surprising that that the
appointments under quota have never made public
either by The Public Service Commission (PSC) or by
Ministry of Establishment (MOE) in official
document or gazette. The Public Service Commission
(PSC) annual reports do not provide adequate
information on the appointments under quota.
11
Quota may be necessary for the advancement of
backward sections in the society, but it
can never continue for indefinite period as is
going on in Bangladesh. Due to quota policy
relatively poor caliber officials get entry into
the civil service or judicial service and long term
bad impact of quota system is evident in the civil
service or judicial service of Bangladesh. So we
propose to abolish quota in civil service
recruitment excepting for tribal people (5%) but
not for Chakmas who on the average are financially
better off than the general people of Bangladesh;
and also their literacy is higher around 75 percent
and literacy in Bangladesh is 63 percent.
Thus Chakmas in no criterion belong to backward
section in Bangladesh. The 30 percent quota for the
wards of freedom fighters though sanctioned by a
wave of sympathy and gratitude has not a legal leg
to stand on unless the beneficiaries proved to be
disadvantageous (Khan and Kazi 2008: i).5
However, art. 29(3), does not, confer any right on
any one, nor impose any constitutional duty on the
State to make the reservation. In the face of
art.29 (1) &29(2), it merely confers an enabling
12
power. But as it an exception to the guarantee of
art.29 (1) &29(2) it should not be interpreted or
given effect to in such a way as to nullify the
guarantee under art.29 (1) &29(2). The Indian
Supreme Court held that reservation in excess of
50% would be unconstitutional.6
Another question comes generally whether all the
member citizens of a backward section of the entire
citizens are backward equally? The answer is of
course not and hence we are to consider the
meaning of backward section. Art. 29 is
comparable with art.16 of the Indian Constitution
which uses the expression backward class where as
the expression used in art. 29(3) is backward
section. The Indian Supreme Court has interpreted
the expression backward class in several
decisions. Those decisions may be helpful, but not
decisive, in interpreting backward section. This
expression has no reference to race, caste, and
there may be backward section within a race or
caste which as a whole may not be backward. 7
My ultimate recommendation is to abolish all kinds
of quota and to provide all kinds of facilities to
all kinds of backward citizens of the backward
section of the entire citizens so that they can
13
sharpen and enhance their abilities to make
competition and have success with equitable equity.
1.3. Transfer procedure and recommendations:
The transfer procedures of the Judges of the sub-
ordinate Courts of Bangladesh are not transparent
and there is no transparent guiding factor of this
transfer procedure. The statistics of the judicial
officers who gets transfer in Dhaka and around
Dhaka will make the question that under what
qualities or factors they have got their transfers
therein and thus we need to think and rethink as to
this matter.
Recommendation:
Without any more discussion, to my mind, the
lottery system of transfer is the only way to
remove any kind of unfair or unreasonable transfer.
However, having some exceptional measures, every
after, a particular period of time, that may be 3
years or any reasonable portion of time fixed by
law, an open lottery should be held which will be
viewed by all the civil servants or the judicial
service holders and the citizens of the State and
according to that lottery, their new stations will
be determined and if it is taken or done, there
14
will be no request or lobby for the transfer and
harassment.
1.4 Promotion procedure and recommendation:
The promotion of sub-ordinate Courts judges are in
fact, depended on the Annual Confidential Reports (ACRs).
There is no examination system for getting the promotion in the sub-
ordinate judiciary. Presently, the performance of subordinate court
judges is evaluated by way of Annual Confidential Reports (ACRs). It is
commonly held that the process has failed to encourage accountability
and is not considered to be an effective supervision mechanism. ACRs
encourage tadbir (lobbying) with subordinate judges being over-cautious
and meek in the hope of receiving glowing reviews from senior judges.
ACRs are also susceptible to political interference as subordinate court
judges feel that their ACRs would contain negative remarks if they fail to
tow a particular political line.8
In our sub-ordinate judiciary, the rule of Annual Confidential Reports is
not strictly followed. Particularly rule 420 of Criminal Rules and Orders-
2009 is not complied and sub-rule 5 of the said rule 420 provides that-
15
Confidential reports should set out distinctly and tersely sufficient
particulars and it is essential that they should be clear and definite so that
the High Court Division may form a correct opinion on the merits of the
officer. In the case of a very bad report, it is necessary that the
unfavorable traits should be briefly illustrated. No adverse remarks should
be made which cannot be supported by precise data, which are liable,
specially in the case of a very bad report of an officer who had hitherto a
good or average record, to be called for by the High Court Division. But
it is not seen that the precise data are called for by the High Court
Division in a case of a Judge who is closely known to me and this is
surprising that the rule made by the Supreme Court of Bangladesh is not
complied with by the General Administration Committee of the Supreme
Court of Bangladesh.
Recommendation:
1. Annual Confidential Report system should be
abolished and only merit through examination
16
should be the basis of promotion. Before
taking part in the examination, there must
have a time frame of working experience.
2. A Committee composed of well experience based persons concerned shall be formed for every
tire of sub-ordinate judiciary which will
review the aforesaid time frame based works
and give the report to the promotion giving
authority.
3. The committee may do mistake and hence there should have an opportunity that if a civil
servant or judicial service holder obtains
good marks in the examination and the
committee review report is against him, the
basis of the said review report must be
checked by another similar committee without
the identification of the report holder.
4. All the performance reviewed by the committee must be publicly viewed either by website with
their consideration.
1.5 Training and recommendation:
The Government of Bangladesh has established
the Judicial Administration Training Institute
(JATI) in accordance with the Judicial
17
Administration Training Institute Act 1995. Under
the current training policy, JATI runs a 60-day
basic course for newly appointed Assistant Judges,
21-day courses
(and at times, 3-day short courses) for Senior
Assistant Judges, Joint District Judges and
District Judges. However, the quality of training
is not satisfactory as it lacks dynamism and fails
to provide the judges with a broader outlook
including
Knowledge of contemporary international legal
issues and necessary social skills.9
Recommendation:
The quality of training provided by JATI should be
improved. A training need- assessment of the
subordinate court judges could be undertaken
immediately, which will identify the areas of laws
(such as, cyber space, money laundering, ethics,
arbitration and conciliation) for curriculum
development and training. JATI should also plan and
implement a continuous point-based training
programme for the subordinate court judges.
Another interesting and innovative mode of
orientation for the judges of the subordinate
courts could be a form of 'apprenticeship' for the
newly recruited by placing them with the judges of
18
the Supreme Court for a designated period of time.
Similar to the system of 'pupillage' for newly
qualified lawyers when they spend a period of time
with senior lawyers and the newly recruited
subordinate judges could be assigned to different
High Court judges. They could work as 'Research
Assistants' of the judges and help them with
academic research, drafting of legal instruments,
and writing of judgments. After this initial phase
of 'apprenticeship', they can then receive further
training at JATI. If this particular form of
training is allowed, the new recruits will get to
learn about the different legal issues and how
judgments are written and generally increase their
confidence and competence in matters related to
law. On the other hand, the judges of the High
Court Division, who are severely in need of skilled
human resource, could benefit tremendously from the
service of the newly recruited judges. This would
also develop a working relationship between the
judges of the Supreme and the subordinatecourts.10
1.6 Accountability
The accountability of the judges of the sub-
ordinate Courts depends upon for the first time
towards the law and conscience as embodied in rule
19
667 of the Criminal Rules and Orders-2009. The
function of the judges of the sub-ordinate Courts
are also accounted by their appellate Courts.
Way of maximum corruption free Bangladesh
Ethical education
Ethical education of the civil servants including
the judicial service holders of the State is very
much needed in respect of maintaining the standards
and values of them in serving the needs of the
people. Most modern Civil Service Ethics laws, and
Codes of Ethics for civil servants and public
officials, endorse the following minimum set of
principles:
Serving the Public Interest
Civil servants and public officials are expected to
maintain and strengthen the public's trust and
confidence in government, by demonstrating the
highest standards of professional competence,
efficiency and effectiveness, upholding the
Constitution and the laws, and seeking to advance
the public good at all times.
Transparency
Civil servants and public officials are expected to
use powers and resources for public good, under
20
government policy. They should be accountable for
the decisions they make, and prepared to justify
their actions.
Integrity
Civil servants and public officials are expected to
make decisions and act solely in the public
interest, without consideration of their private
interests. Public employment being a public trust,
the improper use of a public service position for
private advantage is regarded as a serious breach
of duty.
Legitimacy
Civil servants and public officials are required to
administer the laws, and to exercise administrative
power on behalf of the Government, or the
Parliament, or other such authority. That power and
authority should be exercised legitimately,
impartially and without fear or favour, for its
proper public purpose as determined by the
Parliament or their employer.
Fairness
Civil servants and public officials should make
decisions and act in a fair and equitable manner,
21
without bias or prejudice, taking into account only
the merits of the matter, and respecting the rights
of affected citizens.
Responsiveness
As agents and employees of the elected Government,
Civil servants and public officials are required to
serve the legitimate interests and needs of the
Government, other civil servants, and all citizens,
in a timely manner, with care, respect and
courtesy.
Efficiency and Effectiveness
Civil servants and public officials are required to
obtain best value for public assets deployed in or
through public management, and to avoid waste and
extravagance in expenditure and the use of public
assets.11 Besides these, the religious education
must be enlightened in both civil servants and the
judicial officers or the judges of the sub-ordinate
Courts so that they can control themselves from
doing any kind of corruption.
Use of technology
22
The technology is the best neutral witness or
evidence as I understand that a person may be
perverted at any time but there is no scope of any
perversion of technology unless it works
defectively. If the function of the civil servants
or the judges of the sub-ordinate Courts are
recorded and viewed to the people, there will be
the situation for which the society will be maximum
corruption free society. As for example, there are
peoples perception as to the corruption of the
staff of the Court and other persons connected to
the Court and sometimes even the judge himself.
This fact has been stated by Mr. Mahmudul Islam,
Senior Advocate of the Supreme Court of Bangladesh
and former attorney-general in his book The Law of
Civil Procedure first edition 2006, volume 1, page
iii that
For almost every act from instituting a case to
the delivery of the certified copy of the judgment
or order one has to grease the palm of the court
staff. Few of the judges make any effort to control
the diary as a result of which the bench officer
extracts substantial amount of money simply to
place a case in the daily cause list. Once there
was a row over the matter and there was serious
altercation between a bench officer and a concerned
lawyer, but learned Chief Justice without applying
23
his mind to the problem put the blame on the
lawyer. However, the corruption of the court staff
and the offices of the civil servants can be
controlled easily by using technology i.e. by
recording all the function of them and viewing to
the people. For example, a court of subordinate
judiciary has generally two or three rooms. One
room is for the judge, another one room or other
two rooms is for the staff of the said court and if
secret camera is set up and the judge can observe
all the functions of the court staff, he can easily
catch the corruption and take necessary steps and
the entire function including the function of the
judge should be recorded and viewed to the people.
There will be a screen on the road side of the
office of the civil servants and the court from
which any person of the State can see and observe
their function easily. There must have a link
through which the appellate or higher authority of
the office or court can also observe the entire
function and if it can be established, there will a
maximum corruption free society.
Check and balance
The theory of separation of powers was given by the
Charles-Louis de Secondat, baron de La Brde et de
24
Montesquieu, generally referred to as simply
Montesquieu, indicates that there must have the
check and balance between and among powers. The
said profounder of this theory stated clearly in
his famous book the spirit of laws that
I have not drawn my principles from my prejudices,
but from the nature of things. The things are
neutral and hence the use of technology must also
be neutral and hence by using the technology we can
get a neutral result which will establish a maximum
corruption free society.
Conclusion
In conclusion, it can be reminded that 3rd paragraph
of the preamble of our constitution provides that
Further pledging that it shall be a fundamental
aim of the State to realise through the democratic
process a socialist society, free from
exploitation-a society in which the rule of law,
fundamental human rights and freedom, equality and
justice, political, economic and social, will be
secured for all citizens.
We need to remove all kinds of exploitable scopes
from the office of the civil servants and the
judges of the sub-ordinate courts and the apex
25
court of Bangladesh by adopting the technology
which will work of course, as the best neutral
evidence so that we can see our society as a
society at least free from exploitation.
References:
1. M. J. Vile- Constitutionalism and separation of powers, p.1; see also Mahmudul Islam- Constitutional
law of Bangladesh, second edition, p.1
2. http://www.jscbd.org.bd/b_function.php 3. www.forbes.com/profile/julian-assange/ 4. http://www.ti-bangladesh.org/research/ES_PSC.pdf 5. http://www.napsipag.org/PDF/ABDUL_WAHHAB.pdf; see
also Khan, Akbar Ali and Kazi Rakibuddin Ahmad March
2008. Quota System for Civil Service Recruitment in
Bangladesh: An Exploratory Analysis 2008 available
at http:// www.bpsc,gov.bd/documents/ news/25906
news.doc
6. Mahmudul Islam- Constitutional law of Bangladesh, second edition, p.171; see also Devadason v. India,
AIR 1964 SC 179; In Indra Sawhney v. India AIR 1993
SC 477, it was held that a year should be taken as a
unit or basis for applying the rule of 50% and not
the entire cadre strength.
7. Mahmudul Islam- Constitutional law of Bangladesh, second edition, p.171; see also Indra Sawhney v.
India AIR 1993 SC 477
8. http://www.igsbracu.ac.bd/UserFiles/File/archive_file/Judiciary_Policy_Note.pdf 9. http://www.igsbracu.ac.bd/UserFiles/File/archive_file
/Judiciary_Policy_Note.pdf
10. http://www.igsbracu.ac.bd/UserFiles/File/archive_file/Judiciary_Policy_Note.pdf
11. http://www.oecd.org/dataoecd/62/57/35521740.pdf
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