The New Nation - Internet Edition

M I Farooqui

Bangladesh judiciary has attained "collective independence" vis-a-vis the Executive, which include "personal and substantive independence" of the 'judges as well. This we achieved in December 1999 in Masdar Hossain's Case (20 BLD AD 104) that has been substantially implemented by the present Caretaker Government headed by Dr. Fakhruddin Ahmed.

'What we have achieved is the terms and conditions of judicial service of lower tiers having adequately secured to ensure that individual judges are not subject to executive control and that in the discharge of their judicial functions a judge is subject to the law and his conscience. We have achieved what the International Bar Association (IBA) had formulated in 1982 under the title "Personal and substantive independence" of the judges to 'attain the "collective independence".

In the "hierarchy of the judiciary in Bangladesh the "personal and substantive independence" of the judges of the Supreme Court is secured under Part VI of the Constitution of the Republic. The tenure of offices of the judges is fully ensured until they attain the age of sixty-seven; they cannot be removed from office except through the legal process of Supreme Judicial Council under Article 96. On reference from the President the Council has constitutional authority to enquire into the capacity or conduct of a judge or of any other functionary who is not removable from office except in like manner as a judge. The President may direct the Council to enquire into the conduct of a judge if he apprehends that a judge has ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity; or has been guilty of gross' misconduct. If, after making the inquiry, the Council reports to the President that in its' opinion the judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the judge from office.

The IBA's minimum standard of judicial independence also requires that "the ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements, which adversely affect the independence of individual judges or of judiciary as a whole." To malign a judge or the judiciary in the name of "irregular appointment" by the past Government with spectre of twenty years to bear them is derogatory to the concept of independence of the judiciary. There judges of the superior court are unwittingly made laughing stocks by un-thought-of comments. The might be irregular and incapable judges on the bench. But who is the best judge amongst the judges? There is constitutional way to judge them in the interest of a constitutional way of life that we still claim. Basic Principles on the Independence of Judiciary were endorsed by the General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The basic principles also endorse that judges shall be subjected to suspension or removal only for reasons of incapacity or behaviour, that renders them unfit to discharge their duties and all disciplinary suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

'Why should we bear this burden of wrongs of the past for the next twenty years?" .

This was a question raised by a senior member of the Bar in reply to the apprehension of the honourable Chief Justice Md.. Ruhul Amin that irregularities in 'the appointment of judges in the past would require twenty years to correct. Another former Chief Justice Mr. Justice Mustafa Kamal who is Chairman of the Law Commission has suggested forming of a 'council of elders' to look into the allegations against and conduct of the judges. He further said that the idea to form 'council of elders' is accepted in different Countries to institutionalise such councils. Some national dailies in their scoops had apprehended that the President would soon invite some of the judges over cups of tea to show them the door.

Let us examine how the advanced countries have acted to resolve similar issues.

Disciplinary actions in USA:

All federal judges appointed under the provisions of Article III of the Constitution hold office "during good behavior", which means in effect for life or until they choose to step down. The only way they can be removed from the bench is by impeachment (indictment by the House of Representatives) and conviction, by the Senate. In accordance with constitutional requirements (for Supreme Court justices), impeachment may occur for "treason, bribery, or other high crimes and misdemeanors. Since 1789 the House of Representatives has initiated impeachment proceedings against only 13 jurists, although about an equal number of judges resigned just before formal action was taken against them. Of these 13 cases, only seven resulted 'in a. conviction, which removed them from office. In USA also retirement and removal of judges is difficult. Retirement plans, no matter how effective in getting the older judge to resign, are of little use against the younger jurist who is incompetent, corrupt, or unethical. Throughout American history the states have used procedures such as impeachment, recall elections, and concurrent resolutions of the legislature to dismiss these judges. These methods were only minimally effective, however, either because they proved to be politically difficult to put into operation or because of their time-consuming cumbersome nature. Judges often time their resignations to occur when their party controls the presidency so that they will be replaced by a jurist of similar political and judicial orientation. A 1990 study found that especially since 1954, "judicial retirement/resignation rates have been strongly influenced by political/ideological consideration, and infused with partisanship" thus indicating that many jurists view themselves as part of policy link between the people, the judicial appointment process, and the subsequent decisions of the judges and justices. See www.usinfo.state.gov

Disciplinary action in India:

Judges in India are protected in the way the USA judges are protected till they attain the age of 65 years. They cannot be removed unless they are impeached by the Parliament. Mr. Ram Jethmalani in his article, Judiciary and Corruption (composed in December 1991) printed in his book "Conscience of a Maverick" has vividly described misconducts of some Indian judges:

Serious allegations of misconduct were widely aired in June 1990. Justice Mr. S K Desai, the senior most puisne Judge of the Bombay High Court had to resign as he was transferred following an allegation that he had attempted to influence Justice Mr. M P Konia in a case that was pending before the two of them. Some years ago, Rs. 32 lakh were discovered from the house of Chief Justice Mr. Veeraswamy. The CBI registered a case involving this recovery which is still pending. Former Chief Justice' of India Mr. Venkataramaiah publicly stated that out of a total of about 450 High Court Judges all over the country, as many as 90 'were out practically every evening, wining and dining either at a lawyer's house or at a foreign embassy'. He said that there were charges of corruption against at least 88 High Court Judges. And several Judges had their sons and close relatives practise in all the High Courts. Because of these reasons, several years ago the Bar Council of Panjab and Haryana High Court adopted a resolution requesting the 'President and the Chief Justice of India to ensure that Judges domiciled in Punjab and Haryana, especially those whose family members are advocates and practicing in the same High Court are not allowed to occupy the benches of the Punjab and Haryana High Court."

Neither has USA nor India resorted to or has ever thought of doing the thing in a summary way over a cup of tea ignoring the constitutional mandate. They have strictly followed the Constitution. The present Caretaker Government, there might be some deviation though, is a dejure Government as it has come into power through the safe passage of 13th Amendment to the Constitution.

The President, the Chief Adviser, the Law Adviser and the Chief Justice of the country are under oath to protect the Constitution. The judges are protected under the Constitution and they cannot be removed by any other means. I am afraid that it would be the end of the Constitution and independence of the Judiciary if the judges were removed by any other means other than what the Constitution had provided.

(The writer is Senior Advocate of the Supreme Court of Bangladesh.)