The New Nation - Internet Edition

Syed Mujtaba Quader

Recent events in the political environment of this country have impressed upon us that political parties operating under the present political set-up are incapable of carrying forward the aspirations of this nation on their own. In fact, one may even say that it was only through divine intervention that these shortcomings came to light. In fact, one shudders to think what would have happened if elections were held on time and we were once again subjected to the rule of political parties who are consumed by their own self-interests with no understanding or empathy for the real needs of the teeming millions. It is no denying that this nation faces momentous challenges in the next two decades, like the migration of millions from the villages to the cities each year, the need to face the calamities of climate change and the perennial need to educate, feed, shelter, clothe and medically treat the ever growing millions of citizens. What would happen, if corrupt politicians, on the wings of an inadequate political system, came to power with no understanding or concern for the real issues that confront us ?

However, hopefully, the opportunity still remains for making positive changes in our political and constitutional set up at a time when the people have shown great wisdom and sublime 'political receptivity'. It is the duty of all to see that this opportunity is not missed on any count. It is enervating to see that the Caretaker Government is trying to recalibrate some basic elements of our political set-up, which if done properly, may ultimately force the political parties to take the path of progress.

One such important step is the separation of the judiciary from the executive branch of the government. This is a huge step forward for this nation and we must show our gratitude to the present military backed Caretaker Government for paving the way for this to happen. At the same time we must also try to understand why this could not be done in the past sixteen years when three consecutively elected democratic governments belonging to both the AL and the BNP could not achieve this in spite of having ardently promised this in their election manifestos prior to all the three elections.

However, before we try to analyse the reasons behind the failure of the previous governments to separate the judiciary from the executive we must first get a grasp of the magnitude of the implications of taking this momentous step forward. Also, we must examine if mere separation of the judiciary will solve all problems in this regard ?

In our legal system, which has its roots in the British legal traditions, there are generally two kinds of disputes that have to be settled in the courts - the criminal cases and the civil cases. Criminal cases are instituted when citizens allegedly break aspects of the public law. Public law is that aspect of the law that deals with the upholding of the fundamental values that maintain peace and harmony among the citizens. The enforcement of these values is the primary duty of the modern nation state and therefore the state becomes a direct adversary if these laws are challenged. Public law includes within its ambit the constitutional laws, the administrative laws and the criminal laws. This is contrasted to the private laws under whose purview individual citizens enter into transactions with each other, of their own independent volition, and disputes arising out these do not affect the lives and interests of the citizenry in general. The important thing to remember is that in the case of public law disputes, the state in the form of the prosecution becomes the plaintiff (accuser) and the citizen becomes the defendant (accused). However, for all disputes concerning both the public and the private laws, the separate and independent judiciary, in the form of judges of the courts, should give binding decrees regarding the disputes. Since most of the actions of the judiciary are guided by the traditions of the modern nation state apparatus, the judiciary is also considered to be an organ of the state albeit a little independent of the other organs of the state i.e. the legislative branch and the executive branch. Therefore, to what degree the judiciary is independent of the other two braches of government is of paramount importance to the destiny of a nation. Because if the judiciary is not allowed to function in a suitably independent way then the very purpose of its existence, that is to preserve the rule of law in the land, becomes compromised, vitiated and brutalised. In Bangladesh so far, the judgements concerning the public law cases have been given by executive magistrates who are part of the executive branch. This created the situation of the executive becoming the accuser and the judge at the same time and this was the most repugnant aspect of the executive branch doing the job of the judiciary.

So why were the ruling parties and the people reluctant to allow the judiciary to act independently for so long ? For four reasons. Firstly, the ruling party used the executive branch as a tool and controlled the prosecution process for alleged breaches of the public laws. This gave immense power to the party in power to control the lives of rivals in the opposition parties and even to take financial advantage from this power. Cases could be started, dropped or kept in abeyance at the sweet will of the party in power. This stratagem was an excellent way to keep the opposition under their thumbs. Secondly, the various governments did not wish to share power with the judiciary because the judiciary had inherited their laws from colonial times. Since the political parties did not owe their allegiance to the colonial era and had earned their power through upheavals and revolutions, it was reluctant to share this power with the judiciary who were perceived to be the old uncaring colonial force. Thirdly, the civil administration, which inherited every aspect of its existence from the colonial days, was apprehensive and resentful about giving up its executive powers in the absence of any time relevant code of civil administrative procedures that should have been initiated long time ago. Fourthly, the judiciary, through their own inadequacies and lack of support from the legislative parliaments lost the confidence of the public when the public saw rampant delays in the courts and unparalleled rent seeking. However, in later years, the judiciary started to regain the support of the people when the elected governments were found to be incapable of enacting time relevant laws that could replace the colonial laws. In this situation, the elected governments themselves became irrelevant and the need to separate the judiciary from the executive became necessary in order to protect the already maligned judiciary from further abuses of the executive branch. One can only ponder and dream about how far this nation would have gone forward if only the previous parliaments cooperated with the judiciary and enacted time relevant laws to make this nation at par with countries like Malaysia, Singapore and Korea.

The keeper of justice, that is, the judiciary, by definition and by application of common sense logic, must provide two vitally important services. Firstly, it must have the knowledge and ability to distinguish between what is and what is not permissible in law, and secondly, it must have the power and strength to punish the wrong-doer and protect the weak. To what extent the judiciary can enforce its decisions is vitally important to the discharge of its duties. Court decisions that cannot not be enforced are like birds without wings. They cannot be considered decisions at all. Then, the next most vital question is, who gives the power to the judiciary to maintain its own independence, through which it can enforce its decisions? The judiciary itself, manned by judges, court officials, and a handful of security guards armed with batons, guns and sticks cannot be expected to physically enforce court decisions. However, no body can deny the physical aspect of enforcement of court decisions through the state security apparatus consisting of the police, the para-military, the detective agencies, the prison guards etc. So who will provide the judges of the courts with these enforcers ?

Modern democratic governments have three branches, the legislative, the executive and the judiciary. These three branches form the cornerstones of the foundation of government and may be thought of as three sides of a triangle. The legislative branch enacts laws. The executive branch applies the laws, collects taxes and runs the day-to-day affairs of the government. The judicial branch ensures that the laws are applied fairly. The legislative branch must nurture and support the judiciary from time to time by enacting and perfecting laws that are relevant to the time and the specific needs of the society. In turn, the judiciary must give guidance to the legislative involving matters that create confusion and contradict other laws. The executive must run the infrastructure, collect taxes, provide financial planning, etc among its many duties. The more equal the sides of the triangle are to each other in power and influence the more stable the triangle is. If one side becomes very small, the triangle becomes akin to a straight line and therefore becomes very unstable. The three sides should balance each other and no one side should ever be too much more powerful than the other two sides. It has been seen that in many developing countries, any one side or two sides together become too strong and the other side or sides become too weak. In these cases, the ruling class becomes too powerful and development as a whole suffers with large numbers of people lagging behind in development. However, in some developing democracies, the three sides of government are correctly balanced and these economies prosper eg. Singapore, Malaysia, Korea. It is surprising to note here that although India is a large country with long democratic traditions it has lagged behind China in development, which is still considered a command economy, because, among other things, the system of delivering judgement in China, no matter how unrefined it may be, is fast and efficient compared to that of India.

In most western democracies court decisions are enforced by the police force and other ancillary bodies. Although the police force is maintained and regulated by the executive branch of the state, it is oath bound to honour and enforce the dictates of the courts. Unlike most countries of the developing world, in these countries which have long traditions of democracy brought about by many years of evolution of peoples' rule, it is ingrained in the minds of the people to honour the courts. The concept of the three branches of government is entrenched and the whole populace is whole-heartedly given to the peaceful functioning of the government through the cooperation between the branches of government. No major political issues divide the branches of government and hence the only major areas of housekeeping are restricted to stopping ordinary criminals from committing theft, murder, rape, extortion etc, and, keeping order in the corporate world. The courts and the police force have a symbiotic relationship in which they depend on each other for their honour and their livelihood. The USA is an exception to this simple rule in some way. Although the country is wholly committed to democracy, the heritage of a fierce sense of independence fostered by waves upon waves of European settlers surging out into the North American wilderness for over four centuries have created an intense psychological need for personal freedom and a enduring distrust of the authority that be.

This is exemplified by the ' Second Amendment to "The Bill of Rights" ' of the American Constitution, also known simply as the 'Second Amendment ' which states that 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed '. The implications of the true meaning of this are immense. Not only does it allow individual citizens to keep and bear arms, it allows each of the fifty states and other groups of people to maintain organised militias which can theoretically confront and oppose the authority of the central state apparatus. Examples of these 'militias' are the State Police, the National Guard, the State Guard and numerous other private security agencies each of which are aware and zealous of protecting the rights of those that they represent through the use of arms if necessary. It is therefore no wonder that the rights of individual citizens are so well protected in the USA. Although irresponsible use of firearms by some delinquent citizens become absorbing dramas on US television from time to time, an overall time tested sense of security has prevailed in the country for over 300 years from the presence of these militias and the right of the general public to bear arms. Although the bearing of arms by the public may not be condoned any more in modern times, ensuring the physical independence of the judiciary is still of paramount importance for the growth of a nation.

Securing the loyalty of the executive towards enforcing the independent decisions of the judiciary is therefore of great importance for maintaining the balance between the three branches of government. Although this aspect is taken for granted in developed democracies, it is easier said than done in less developed democracies as can be seen in the recent events in Pakistan where the military backed executive branch is coercing the decisions of the judiciary at every opportunity. In Bangladesh it has been the same with the Masder Hossain case. In reality, among officers of the executive establishment, the borderline between duty, formalised by the taking of an oath, and the compulsions of organisational hierarchical accountability becomes vague, and officers of the police and other forces become more prone to carrying out the orders of the executive rather than carrying out moral obligations that ensue from taking ceremonial oaths.

The argument has been made that the judiciary is also oath bound to deliver judgement based on the law and according to what it considers to be justice and therefore it is the duty of the judges to just pronounce the words of justice without taking into consideration whether the judgements are enforceable or not. When one considers this in greater depth, one realises the emptiness of this argument. This is because if the judgements of the court are perceived as being unenforceable then soon the very foundations of the judiciary become questionable. The judges and officers of the court being normal human beings made of flesh and blood cannot take this upon their honour and upon the means of their livelihood. 'Enforceability' being a fundamental question, the judges must give their judgements in consonance with the power that prevails albeit with a veneer of judicial neutrality, as is being witnessed in Pakistan.

So, if the case has been made so far that the judiciary has to be made independent by giving it its own enforcement ability or 'teeth' which would allow it to function separately from the executive, then, the question is, how can this be done ? One simple suggestion is to form a separate 'judicial police force' along the same lines as the present day RAB which could possibly also contain elements of the defence forces. This force would be entrusted with enforcement of court judgements only and not general enforcement of the rule of law which would still be done by the executive, and its accountability in terms of pay, promotion etc would be to the judiciary. Since it would be a relatively small force, it could also be put exclusively under the command of the defence forces, which would give it more 'teeth'. Another suggestion, of possibly lesser implication, would be to include members of the defence establishments within the ' National Constitutional Council ' that is being presently considered by the Caretaker Government for giving appointments to constitutional posts. In the absence of a higher house of parliament in Bangladesh, the formation of a ' National Security Council ' consisting possibly of members of the defence establishment can also be considered to ensure parliamentary accountability which seems to have gone completely haywire with the insertion of Article 70 in the constitution.

It must be noted by all that the role being presently played by the political parties in this environment of 'political reform' is not conducive to the fundamental changes that this nation demands. The parties are reluctant about taking initiatives about reforms and are playing their time tested political card of attrition by out-waiting the patience of the people. They think that the patience of the people will run out at some point and that they can re-start their activities at some opportune time. In fact, it may not be entirely unfounded to say that they are waiting for the time when the air clears up under an elected government and they will unravel all that is being done by the present government, and, also conduct a witch-hunt of their own and take revenge on the main functionaries of the present government. If the present government is seriously committed to the holding of elections by the end of 2008 common sense dictates that they should also try to protect themselves when one day they may be at the receiving end of a vindictive elected regime. One way to do so would be to give 'teeth' to the judiciary, which would ensure that no unjust harm can be done at the whims of the executive or the legislative branches of government in the future. Another suggestion would be to abrogate Article 70 of the constitution whereby it would be necessary to get the support of the majority of the MPs to pass unreasonable laws. Abrogating Article 70 would make it impossible for party chiefs to impose their autocratic wills on the rest of the MPs of the party.

Opportunity does not knock twice. When it does, it must be taken advantage of. This is how wise men should behave. Hindsight tells us that the people of this nation have shown great wisdom in the past in matters of national interest in spite of a severe lack of vision and leadership on the part of the political establishment. It is now time for the present stakeholders to prove that they are worthy of the trust bestowed upon them by the people and by providence.