The New Nation - Internet Edition

Barrister Mainul Hosein

I am very pleased and thankful to you all for joining us this morning on this momentous occasion. It is indeed, a great honour and privilege for me to address such a distinguished gathering. The much awaited gigantic step has finally been taken for the fulfilment of the constitutional obligation of separating the judiciary from the executive 35 years after such demand was made of the state. From today the judiciary starts functioning as a fully separate organ from the executive paving the way for a new era in the constitutional development of our country.

This caretaker government takes great satisfaction and pride for its success in achieving the important milestone essential for good governance. The judiciary is now assured of the dignity of being independent of the control of the executive. By recognising the importance of the judiciary's independence we are upholding the importance of human rights for a civilised existence in a free country.

We fought for the country's freedom so that we can live with our rights and liberty protected under democratic dispensation. The rights and liberty guaranteed by our Constitution are useless if the judiciary is not free and independent to protect such rights and liberty. An independent judiciary has to be bold and responsible because the cause of justice is far from easy to serve. We have separated the judiciary from the interference of the executive not as a favour to the judges, but to assign them with the heavy responsibility of upholding justice and contributing to good governance as contemplated by the Constitution.

Because the judiciary was not allowed the importance envisaged in our Constitution the system of checks and balances failed to work and the government degenerated into an arbitrary and corrupt machinery in every way possible. Corruption and abuse of power prevailed over the rule of law and justice.

The present caretaker government assumed responsibility with the expressed commitment to salvage democracy and the rule of law. With that end in view, from the beginning, we gave our urgent attention to the issue of separation of the judiciary, Prompt cooperation was extended all the way for completion of the process of separating the judiciary from the influence of partisan politics and executive interference. A giant step has been taken boldly and yet we have no hesitation in admitting that much more has to be done to make separation of the judiciary work harmoniously in the system of governance. The main goal of making justice accessible and affordable to the poor much more has to be realised sooner than later. The judges have to ensure that people's high expectation about getting speedy justice the easy way does not remain illusive.

I am specially thankful to the Hon'ble Chief Adviser of the caretaker government, Dr Fakhruddin Ahmed who had most anxiously handled the process for allaying the apprehensions and removing the difficulties every step of the way. But for his deft intervention from time to time it would not have been possible to make it happen in such a short time. Others in the government, including my colleagues, were also of great help.

I must gratefully acknowledge the very prudent guidance patiently but bravely provided by his Lordship Chief Justice Justice Md Ruhul Amin and his companion Justices of the Supreme Court. The landmark judgement that gave momentum to the whole exercise, was delivered by the then Chief Justice Mr Justice Mustafa Kamal sitting with Mr Justice Latifur Rahman, late Mr Justice B.B. Roy Choudhury and Mr Justice Mahmudul Amin Choudhury in the now famous Masdar Hossain case filed by some 441 judicial officers.

In the nation's struggle for democracy it is the lawyers who resisted with extraordinary courage and unity every assault on the judiciary to diminish, even to disintegrate its authority. Against the audacious attempt to destroy the unitary character of the judiciary our brave judges of the Supreme Court, despite all the risks, handed down another landmark judgement in the case of Anwar Hossain Vs. Government of Bangladesh and others in 1989.

Let me pay my special tribute to my lawyer friends who extended full support to this initiative of the government. Their solidarity with the cause will be constantly necessary to reinforce and strengthen the purpose of separation of the judiciary. I am grateful to the leaders of the political parties for their praise of the government's role in securing separation of the Judiciary. I must express our government's indebtedness to the media, both electronic and print, for their positive attitude and extensive cooperation.

All concerned agree that the very special situation now prevailing in the country has proved most conducive to the complex task found unattainable for so long. The executive and the judiciary have realised that they cannot go their separate ways. They need to maintain unity of the government through the separation of powers. That is the best way to prove the efficiency of each of the organs.

As a lawyer and as the Adviser for Law, Justice and Parliamentary Affairs, let me share with your Lordships, Excellencies and the distinguished guests my utmost happiness for being at the right place at the right moment to provide the necessary impetus. But, at the same time, I cherish the fulfilment of a goal every man holds high, i.e. the judiciary has been freed to protect the freedom of a free nation.

Now it is for the judges to make the judiciary strong and just to serve the cause of justice and win people's full and clear confidence. It is only through personal integrity and good conscience that the judges can ensure people's confidence in the judiciary. I have noticed strong determination among the judges to take the challenge most seriously.

The judges have taken upon themselves consequentially, the task of sharing, at this critical time, the onerous responsibility of steering the country towards the goal of restoring democratic good governance. Together we must be successful in establishing stable democracy in the absence of which all our efforts to make the judiciary independent and work successfully will go in vain. In the past the judiciary was not allowed independence for the simple reason of not allowing democracy to function.

In the present critical situation of the country, there is no room for partisan bias for fully appreciating the hurdles we have to cross so that we do not fail the nation in securing peace, security and justice of good governance.

It is not right to think that the judges have no accountability. The judges have their accountability to society and their accountability must be judged by their conscience and the oath of their office. It has been well recognised by the famous judges that if the judges decay, the power of contempt of court will not save them. The other side of the coin is that they must be above suspicion. Thus independence of the judiciary must also mean cleansing of the judiciary by judges themselves independently without outside intervention.

What is most important for the effectiveness of the judiciary is not the arrogance of power but the moral compulsion of doing justice honestly. The faith of the people in the judiciary gives the judiciary the real power and overriding moral authority. Some of our eminent judges have proved their judicial activism and calm courage whenever the nation faced a crisis in the field of the rule of law or the constitutional process.

Judicial activism for justice and good governance is well recognised in all democracies. So, let us move ahead together to establish true democracy for building a just society. The change that has taken place has given us all a unique opportunity to rethink and rededicate ourselves to serve the higher goals of a free nation honestly and to the best of our ability.

I thank you all once again and pray for the strength to redeem our pledge fully by installing democracy, good governance in the country for the good of the people.

Speech delivered by Barrister Mainul Hosein, Adviser, Law, Justice and Parliamentary Affairs at the Bangladesh-China Friendship Conference Centre on the occasion of Separation of Judiciary on Thursday.