THE High Court verdict of September 2 that directed the government to establish a separate secretariat in the Supreme Court and to vest full disciplinary control over subordinate court judges in the apex court is a welcome development. The judgement came in response to a public interest litigation writ petition filed by a group of Supreme Court lawyers after the fall of the Awami League regime in the wake of the July uprising. The court, describing the lack of institutional autonomy as a violation of the constitution, has ordered the government to set up the secretariat for the Supreme Court in three months. A separate, independent judicial secretariat under the Supreme Court, with all powers regarding the affairs of lower courts, has for long been overdue for an effective separation of the judiciary from the executive. The absence of such a mechanism has for decades undermined the meaningful independence of the judiciary. That the judiciary has not been fully independent in the past 53 years despite the constitution鈥檚 clear declaration that the state will 鈥榚nsure the separation of the judiciary from the executive organs of the state鈥� remains a mark of weak democracy.
Executive control over the judiciary, especially in matters of promotion, posting and transfer of subordinate court judges as well as disciplinary action against errant judges, has for long been seen as eroding the rule of law and enabling the abuse of legal instruments for partisan ends. On November 1, 2007, the then caretaker government formally separated the judiciary from the other two organs of the state, acting on the 12-point directive that the Appellate Division had issued in December 1999. Yet, in practice, judicial independence has largely remained on paper as the executive retained substantial control over subordinate courts. The amended Article 116 of the constitution and the Bangladesh Judicial Services (Disciplinary) Rules 2017 effectively placed supervisory authority with the president and the executive. The High Court has now declared unconstitutional both the fourth amendment of 1975 and the 15th amendment of 2011, which altered Article 116, holding that these amendments violated the principle of the separation of powers enshrined in Article 22. The court has further struck down the Bangladesh Judicial Services (Disciplinary) Rules 2017, which had empowered the law ministry as the 鈥榓ppropriate authority鈥� over lower court judges.
The establishment of a Supreme Court Secretariat has, in fact, been proposed earlier by the judicial reforms commission, iterated in the judiciary reforms road map prepared by the chief justice and, even, endorsed in principle by political parties. The government has, therefore, no grounds to make delays. It must comply with the court鈥檚 directive and set up the secretariat under the Supreme Court without further procrastination, ensuring at last the complete separation and true independence of the judiciary.
