THIS is unacceptable that the judiciary has not enjoyed effective separation from other state organs and has not been truly independent, even though the constitution declares in unambiguous terms that the state ‘shall ensure the separation of the judiciary from the executive organs of the state’. On November 1, 2007, the then caretaker government formally separated the judiciary from the two other organs of the state based on the 12-point directives that the Appellate Division issued in December 1999. But the separation and the independence of the judiciary have virtually remained on paper while the executive exercises substantial control over the trial courts. During the 15 and a half years of authoritarian rule of the Awami League, which was deposed on August 5 amidst a student-mass uprising, the government controlled the judiciary and used it for partisan gains. In such a situation, the chief justice coming to give a comprehensive proposal for an effective and meaningful separation of the judiciary from the executive and the legislative is welcome. The chief justice is reported to have submitted the proposal on October 27 to the ministry of law, justice, and parliamentary affairs. The proposal includes the establishment of the much-talked-about judicial secretariat under the Supreme Court to enhance the Supreme Court’s supervisory role.
The 1999 directive directed the government to establish a Supreme Court Secretariat to ensure the financial freedom of the judiciary and deal with issues related to the effective functioning of the judiciary in terms of judicial administration and budgetary allocation. The proposed secretariat, in line with Article 109 of the constitution, was expected to centralise oversight of all courts and tribunals. But successive governments have not established the secretariat critical to the independence of the judiciary, leaving the judiciary at the mercy of the executive for its pay scale, budget and funds and offering the executive a handle to control important affairs of the judiciary. The chief justice, earlier on September 21, while outlining a judiciary reform roadmap, duly remarked that a Supreme Court Secretariat would end the dual administration system currently seen by subordinate court judges, who are now being overseen by both the law ministry and the judiciary. The executive still controls the promotion, posting and transfer of judges in the subordinate courts and decides disciplinary action against errant judges, which is contrary to the spirit of the separation of the judiciary. The control of the executive and the legislative over the judiciary has been a decline in the rule of law and a huge backlog of cases.
A complete separation of the judiciary would also continue to remain on paper until Article 116 of the constitution that vests the authority of the control of lower court judges in the president is amended to restore the full authority over the lower judiciary to the Supreme Court. The government should realise that a complete independence of the judiciary is of utmost necessity for democratic governance and should, therefore, amend all the provisions that curtail the complete separation of the judiciary and establish a Supreme Court Secretariat.
