The New Nation - Internet Edition

Renaissance of the judiciary: Challenges and recommendations

K.M Mukta

Judiciary is one of the indispensable organs of an independent sovereign nation state. The judiciary is viewed as the last resort of justice from time immemorial from pole to pole. In the first decade of 19th century the U.S Supreme Court launched the classical dogma of 'Judicial Review' in Murbury vs. Madison 1804 to uphold the constitutional rights and to perish the arrogance of the executive organ. In the Constitution of Bangladesh, we discover, preamble, Articles 7, 26, 102, etc. explicitly enshrined the provisions of judicial hegemony as watchdog to uphold constitution and rights of all the strata including the downtrodden minority nationals and other vulnerable groups. But ironically the judiciary was caused to sink for multi-dimensional causes like corruption, naked encroachment by the executive, muscle power, bureaucracy, colonial legacy, backdated laws, lack of intellectual human resource in the Bar and Bench, lack of logistic support, etc. which Justice lyer inducted by four pathological factors-(a) Colonial judicial backwardness, (b) medieval management methods promotive of docket and stagnation, (c) functional non-accountability to the people, and (d) a careerist hedonism ready to negotiate judicial independence. As a result, there are many corners which whispered "the court is dead .Rest in peace!"

Outline of renaissance in Judiciary:

Within that dark gamut of judiciary, we mark a miraculous holistic and comprehensive pronouncement by the Supreme Court in Masdar Hossain case which echoed separation and independence of judiciary by letters and in spirit that is a constitutional guarantee. In pursuance of 12 point directives of Masdar Hossain case, there is a formal and official separation of judiciary on 01/11/2007. This historical and epoch making neo journey of judiciary is a partial renaissance for the whole nation with the oath of qualitative and quantitative justice.

But the question is whether we have minimum preparation to congratulate and retain the prolific of this renaissance in judiciary. Intellectuality is the very basic edifice of sustainability of any renaissance as it is axiomatically inferred from the saga of various renaissance and human civilisation. The judicial service commission has already appointed 396 assistant judges who are comparatively young, determined, committed and intellectual with brilliant academic results. These young pusine judges just achieved their graduate or postgraduate on jurisprudence.

There are multifaceted options of lucrative professional opportunities for them. At the time of appointment all of them heard the promise of the concerned to ameliorate the salary and other logistic support in accordance with the financial crisis of inflation and soaring prices of daily commodities. But those were the fake and murky promises as the judicial service pay commission's recommendations to enhance the salary of the judges are turned down by the government and begets another bad precedent where all over the world we envisage the high degree of respect towards the apex court's recommendations. In these milieus, the newly appointed judges who are the active force of sustainability of the judicial renaissance are in hilly frustration as the poet stated 'Khuder Rajya Pridivi Ghadyamoy.' If a judge can not afford minimum basic emolument for his family, it is neither possible nor desirable to materialise the dreams of the renaissance of the judiciary. Meantime some of the newly appointed assist judges are stated to quit and many others are pondering over to quit for better options.

Problems in lower Judiciary:

The colossal impediments of lower judiciary are highly visual and interwoven. It is a highly indecent for the state and wisdom would not support that the judicial officers and their family members would suffer from malnutrition. The whole nation has expectation upto to the sky from the judiciary without basic investment as statistics demonstrate the national budget never allocates more than Taka 200 crore for the judiciary which is a remarkable revenue earning sector for Bangladesh.

In the District level courts, there is no minimum opportunities of enriched library, modern information technology, residence and other ancillary opportunities in contrasting with South Asian countries like, India,Nepal, Pakistan and Sri Lanka where judicial officers are endowed with higher degree of opportunities culminated in feeding back of seeming justice to the citizens. There is no scope of intellectual development as the judicial officers cannot publish any articles, research papers unless and until pursuance of complex bureaucratic manoeuver of consent from the authority. There are a few numbers of judicial officers who have PhD degree in comparison with other cadre service as the judicial officers do not have the access to various scholarships of foreign government/ agencies which are now destined to the BCS officers.

This has already created and will enlarge the intellectual barenness in the realm of judiciary. There is a great frustration as per the rank and protocol whereof a judicial officer at the end of his service retired as District Judge but with the same/ less calibre his friends/ classmate retired as secretary. There is a mammoth communication gap between the Bar and the Bench where there is no formal and informal steps to minimise the miss understandings. The new comer judges do not have any training but they are functioning as plenipotentiary judge which might create further bitterness and resulted in substantial distrust towards the whole institution.

The training opportunity accommodated by JATI is embedded with multidimensional lacunae including selection of qualified trainer. Intra and inter judicial conflict and discrimination, as for instance, assistant judges enjoy one month vacation which is not available to the judicial magistrates though all of them entered into the service as assistant judge. The lower judiciary is left like an orphan as if there is no stakeholder/ platform to negotiate for them. Actually, there is a gulf of communication gap between the lower and higher judiciary on the various issues regarding service where lower judiciary is like a skylark without any say.

Recommendations:

Finally, if the real flavour of independence and separation of judiciary is to anchor to the fates of commonalty proper logistic support should be available to the judges. There should be reshuffling of the status through amendment of the present 'warrant of precedent' system. The proloned meagre tradition of isolation of judicial officers should be eliminated with self sanction of judgeship, ethics and morality. The horizontal and vertical avenue of higher education, various training, scholarship, intellectual publications, participation in workshop, seminar etc. should be ventilated for the judicial officers.

There should be a paradigm shift for prognosis from bugaboo of lackadaisical vapoury of meaningless prohibitions, as for example, 'maintain the veil like a new bride', etc. which ultimately ostracized judicial officers from mainstream and hinders judicial activism. After all, Patriotism, self sanction and accountability of the judicial officers to the citizens are condition precedent to retain the prolific of renaissance of the judiciary. Higher degree of value system should be invented through the combined endeavours of the decision makers of the higher judiciary where the lower judiciary should be consulted as a matter of right.

Quashment of proceedings when trial has begun

Appellate Division

(Criminal)

Md. Ruhul Amin-J.

Syed J. R. Mudassir Husain-J

Abu Sayeed Ahamed-J

CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 151 of 2001.

(From the judgment and order dated 4th July, 2001 passed by the High Court Division in Criminal Miscellaneous Case No. 1493 of 1995)

Golam Sarwar Hiru tt.Petitioner.

Vs.

The State and anothertt.Respondents.

For the Petitioner : Mr. Syed Ziaul Karim, Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on- Record.

Respondents : Not represented.

Judgment: 10 July, 2002

Code of Criminal Procedure, 1898-

Section 561At,. Quashment of the proceedings at the stage when trial already begun and prosecution witnesses are examined, is not permissible-

When after the framing of the charge under section 420 of the Penal Code the prosecution witnesses were examined and cross examined, the High Court Division refused to quash the proceedings at this stage which the apex court found perfectly justified.

We have heard the learned Advocate appearing for the petitioner and perused the judgment of the High Court Division. It appears that the High Court Division found that the trial of the said case has already been started and witnesses were examined on behalf of the prosecution. Having considered this aspect, the High Court Division refused to quash the proceeding (Para 4)

JUDGMENT

SYED J. R. MUDASSIR HUSAIN-J:

This petition for leave to appeal is directed against the judgment and order dated 4th July, 2001 passed by a Single Bench of the High Court Division in Criminal Miscellaneous Case No. 1493 of 1995 discharging the Rule arising out of the proceedings of the Criminal Case No.561 of 1993 under Section 420 of the Penal Code pending in the' Court of Magistrate First Class, Court No.1, Bagerhat,

2. The respondent No.1 as complainant on 6-11-1993 filed a petition of complaint in the Court of Thana Magistrate, Bagerhat Sadar, Bagerhat against the accused petitioner alleging, inter alia, that the complainant has a business transaction with the other business man; that on 8-9-1992 the accused petitioner by executing relevant papers received Tk. 93,380/ - as advance for supplying fish to the complainant; that the accused did not supply the fish in time, on query the complainant came to know that the trawler for catching fish of the accused was disordered, thereafter the complainant again paid Tk.30,000/- to the accused; thereafter the accused without supplying fish denied the entire transaction; that on receipt of the petition of complaint the learned Magistrate examined the complainant and took cognisance of the offence under Sections 406 and 420 of the Penal Code and issued warrant of arrest against the petitioner and subsequently the petitioner was granted bail. It is further stated that the charge under Section 420 of the Penal Code was framed against the petitioner and the case is pending for trial and in the meantime 4 (four) witnesses have been examined.

3. Challenging the aforesaid proceeding, the petitioner moved the High Court Division by filing an application under Section 561A of the Code of Criminal Procedure and the Rule obtained in aforesaid Criminal Miscellaneous Case was discharged. Hence, this leave-petition.

4. We have heard the learned Advocate appearing for the petitioner and perused the judgment of the High Court Division. It appears that the High Court Division found that the trial of the said case has already been started and witnesses were examined on behalf of the prosecution. Having considered this aspect, the High Court Division refused to quash the proceeding.

5. For this reason, we do not find any legal infirmity for our interference with the impugned judgment of the High Court Division. Accordingly this petition is dismissed.

Order relieving petitioner from service held unlawful

(From previous issue)

On 11-11-2007, respondent No. 6 issued a notice to the petitioner for showing cause within three working days as to why he should not be relieved form service of the BSMMU for working without submitting an order of resignation prior to joining. By an application dated 18-11-2007, the petitioner prayed for some time to obtain the release order from Government. In spite of that, the petitioner was illegally relieved from service by the letter dated 6-12-2007.

3. Challenging the order relieving him from service, the petitioner obtained this Rule Nisi from this Court.

4. The case of respondent Nos, 3 to 6, in short, is that the BSMMU authority followed the University Act, 1998, Ordinance, Rules, etc. for the appointment and the relieving of the petitioner from service who completely failed to meet condition No. 2 of his letter of appointment in spite of several opportunities given to him to submit order releasing him from Government service. The BSMMU authority provisionally accepted the joining letter but because of utter failure of the petitioner to submit the release order from Government service, the authority had no other alternative beyond the fulfillment of the condition No.2 of the letter of appointment.

5. Mr TH Khan, learned Advocate for the petitioner, submits that the petitioner applied for two years lien to the Government through proper channel to join his post and the application for lien was pending for approval of the Government and that in spite of his best effort, he could not obtain release order for no fault of his and the refore, he cannot be penalised. The learned Advocate further submits that when the petitioner failed to obtain any reply to his prayer for lien, he tendered resignation from service on 17-10-2005 to be effective from the 'date'-of his applying for lien and that no order was passed on the letter of resignation submitted by him through proper channel. He further submits that there are instances where lien was given to some of the candidates. He lastly submits that the University Authority should have taken the view that as soon as the. petitioner tendered letter of resignations he was no longer in Government service.

6. Mr Md Saidur Rahman, learned Advocate appearing on behalf of respondent Nos. 3-6, on the other hand, submits that the BSMMU authority had no other alternative but to enforce clause 2 of the letter of appointment as the petitioner failed to submit the order according lien or accepting resignation from service before relieving him from service by the impugned memo. He further submits that the Government should explain why no such order was passed. He then submits that unless the stand of the Ministry of Health is known in respect of the prayer of the petitioner for lien or for resignation from service made to the concerned authority, this matter should not be disposed of. He lastly submits that the University Authority had no fault at all in relieving the petitioner from service.

7. We have perused the Writ Petition, its annexure, the affidavit-in-opposition and its annexures. Admittedly, the petitioner was selected by the Selection Committee on 28-8-2003 and as per the recommendation and approval of the concerned authorities, the petitioner received letter of appointment on 10-9-2003 as evident in Annexure' C to the Writ Petition. Annexure-'D' revealed that the petitioner prayed for two years lien to the Secretary, Ministry of Health and Family Welfare though proper channel on 24-9-2003 to join BSMMU. Annexure-'E' to the Writ Petition shows that the Principal of Dhaka Medical College forwarded the application for lien to the Director General of Health by memo dated 28-9-2003. On 6-10-2003 the petitioner, however, joined as Associate Professor of Oncology in BSMMU as evident in Annexure-'F' to the Writ Petition. Record shows that the Ministry of Health and Family Welfare sat on the prayer for lien of the petitioner without passing any order whatsoever. Since the petitioner failed to obtain any order of lien, he 'submitted a letter of resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2005. Even then no final order was passed on the letter tendering resignation. Ultimately, the University Authority relieved him from service on 6-12-2007 for not complying with clause. 2 of his letter of appointment.

8. Annexure-'R', the letter of the Registrar, Chittagong University shows that lien was given to Md Siddiqur Rahman Bhuiyan for one year to join BSMMU. Annuxure-'R (2)', the notification reveals that||the resignation tendered by Dr Nurun Nahar Khanam was accepted by the Ministry of Health and Family Welfare, on 6-4-2009 pursuant to an application dated 25-9-2004. Therefore, there are instances where the Government accepted resignation.

9. In the instant case, the Ministry sat over the prayer for lien of the petitioner for an indefinite period. The Ministry could have intimated the petitioner that his prayer for lien was not accepted. Since no order was passed on the prayer for lien, the petitioner had to tender resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2003. The Ministry, however, did not pass any final order either accepting or rejecting the prayer for resignation tendered by the petitioner. Consequently, it can be concluded that the inaction of the Ministry was the product of individual discrimination. In such state of affairs, the petitioner has nothing to do in this regard because of dismal failure of the Ministry, the petitioner cannot be penalised.

10. The University Authority had to wait for a long time because the petitioner could neither obtain an order according lien or accepting his resignation from service. Consequently, the University relieved the petitioner from service because of non-compliance of clause 2 of the letter of appointment. It is contended on behalf of the respondent Nos. 3 to 6 that until the position of the Ministry of Health and Family Welfare is known, this matter should not be disposed of.

11. It appears that on the date of issuance of the Rule Nisi, this Division directed the petitioner to serve notices upon the respondents by a special messenger of the Court at his own cost. Accordingly, notices were served upon all the respondents including the Government of Bangladesh represented by the Secretary Ministry of Health and Family Welfare. But the Secretary, Ministry of Health and Family Welfare did not enter appearance by filling affidavit-in-opposition. Therefore, the statements made in the Writ Petition should be deemed to be true. This Court cannot wait for indefinite period to know the stand of the Ministry of Health and Family Welfare, exacerbating the miseries of the petitioner. We have already found that the petitioner had no hand in delaying the matter for obtaining lien or an order accepting his resignation from service. In the background of the facts, it appears that the petition is a victim of circumstances. We are of the view that since the Ministry did not pass any order on the petitioner's prayer for lien, he shall be deemed to have resigned his post as soon as he tendered resignation on 17-10-2005. As the petitioner shall be deemed to have resigned on 17-10-2005, the impugned Annexure relieving the petitioner from service should be declared to have been issued without lawful authority.

In the result, the Rule is made absolute and the impugned Annexure-P(1) (the memo dated 6-12-2007) is declared to have been issued without lawful authority having no legal effect. The respondents are directed to allow the petitioner to joint his post. There is no order as to cost.

(Concluded)