While most established national institutions, including the parliament, have belied expectations of the people, the highest court of the country, the Supreme Court (SC), has been an exception. From time to time, it has asserted its constitutional power and issued orders asking the government to explain its actions. The image of the higher judiciary has been tainted, however, to some extent, by the alleged politicisation of the appointment of judges and rivalry among a section of lawyers along bipartisan political line. Yet some bold judgements in individual human rights and public interest litigation (PIL) cases have heightened the image of the SC.
The refusal by the full court comprising all six SC judges, including the chief justice, last Thursday to grant another extension of time to comply with the court directive in relation to the separation of the judiciary from the executive is yet another example of its assertiveness. The court did not only confine itself to turning down the government's prayer, but also expressed its deep annoyance over the government's foot-dragging on the issue. The court has genuine reasons to feel aggrieved. For, three successive governments, including the last caretaker government, sought time extensions for 22 times since the SC in its landmark verdict delivered on December 02, 1999 asked the government to implement a 12-step directive for the separation of the judiciary from the executive branch of the state. Among other steps, the court ordered the creation of a commission on judicial pay and establishment of a judicial service separate from the civil executive and administrative services. The incumbent government, reportedly, has completed the process relating to the creation of the judicial service and the judicial service commission. But those are yet to take effect due to the delay in making necessary rules.
The intention of the government behind its foot-dragging tactics is not very difficult to understand; it is not willing to give up its control over the lower courts which are constitutionally subordinate to the SC. The ministry of law, justice and parliamentary affairs exercises its authority over the appointment, promotion and transfer of the judicial officials of the lower courts. This particular authority has given enough scope to the government to interfere in the activities of the lower courts which runs counter to the independence of the judiciary. Examples are galore where the administration has, from time to time, tried to influence the decision of the lower courts. What is worse is that such interference in the absence of accountability has made the lower courts vulnerable to corruption and other irregularities. A section of the lawyers and court officials work hand in glove to prolong the process of litigation, thus, causing immense sufferings to the litigants. The higher courts would not have to admit so much of writ petitions and appeals, had the lower courts worked efficiently. Due to the lack of confidence in the working of the lower courts, many people, particularly those who can afford to pay costs, straightway take recourse to legal actions through higher courts. But the poor being unable to meet the expensive litigation process of higher courts are compelled to take the uncomfortable shelter of the lower courts and suffer. The speedy trial courts are an exception, however.
The parliament is unlikely to make itself a truly powerful organ that is capable of overseeing the executive. The SC has raised expectations. Yet it would not be always easy on its part to take an errant government to task in a country like Bangladesh where a particular group of self-serving people across the political divide, maintains their tight grip on power. Only an effective parliament and a judiciary, independent of the executive, can make genuine contribution to making the government accountable in the country.