Separation of judiciary: The journey continues

Reviewing the views

Separation of judiciary: The journey continues

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, December 26, 2009; Available Online: http://thedailystar.net/law/2009/12/04/views.htm

1. In Bangladesh Masder Hossain episode of the till-birth struggle for separation of judiciary is over, theoretically at least. And I see a sort of complacency in all fronts with the fact that by now we've got a Judicial Service Commission which so far have done excellent in injecting a herd of promising young minds in the Judiciary. The overall performance of these fresh bloods has created a good reason to be hopeful. The rate of disposal, efficiency and quality of judicial activism is rather excellent. However complacency may seem to be indifference, if you have noticed the 'grudging' acknowledgment of the fait accompli of 'Independent Judiciary' on the part of the executive. What has the Executive not done so far to make the separation a meaningless one?

2. Just take the example of the Secretary of the Ministry of Law, Justice and Parliamentary Affaires. A meeting of the Secretaries of the Ministry of Finance and Law, Additional Secretary and Joint Secretary of the Cabinet Division and Joint Secretary of the Ministry of Law was held on January 6, 1997. The meeting recommended for creation of a separate Legislative Drafting Wing in the Ministry of Law to enhance the quality of legal drafting. The meeting observed that an officer of the Legislative Drafting Wing, if found to be otherwise qualified, may be eligible for the appointment in the post of Secretary of the Ministry of Law.
This, however, was not included in the Legislative Drafting Officer (Ministry of Law, Justice and Parliamentary Affaires) Recruitment Rules, 1998 promulgated by the President in exercise of the power granted under Article 133 of the Constitution in consultation with Public Service Commission as is required by Article 140(2). The rules clearly specified that the highest post in the Wing shall be Additional Secretary (Drafting) and lowest being the Assistant Secretary (Drafting).
An officer from the Judicial Service Cadre was given option to join the Legislative Drafting wing on condition that once the option is taken for a post it cannot be revoked. Mr Habibul Awal exercised the option, left the judicial service, got early promotion, gained seniority over his contemporary colleagues and enjoyed an uninterrupted stay in Dhaka. Ultimately by way of promotion he reached the position of Additional Secretary of Legislative Drafting Wing.

3. The Senior Service Pool Order 1979 reserved 50% of the posts of Deputy Secretary or above in the Ministry of Law for the Judicial Officers, which was subsequently enhanced to 75% in 1983. In 1989 the Senior Service Pool Order, 1979 was repealed. The 75% rule however was retained.
Later on the President in consultation with the Supreme Court promulgated a Policy (Nitimala) in 2001 providing guidelines for and eligibility of officers from the Judicial Service to be appointed as Joint Secretary or Additional Secretary or Secretary-in-charge or Secretary. Rule 3 of that Nitimala again confirmed the 75% rule. It provided that the appointment to these posts shall made from the officers belonging to the 'Judicial Wing' of the Ministry.
Thereafter on 11/6/2002 another notification was issued by the Government promulgating Rules for Promotion of the Deputy Secretary, Joint Secretary, Additional Secretary and the Secretary of the Government, 2002. Rule 5 of it also confirmed the 75% rule. Rules of 2002, however, did not expressly mention that Secretary of the Ministry of Law should be from the Judicial Wing.
In 2007 Dr. Shahdin Malik moved the High Court Division challenging the 75% rule on the basis of a doctrinaire view of separation of power [12 MLR (HC) 368]. He challenged the practice of deputation of Judicial Service officers in the Ministry of Law. In light of the change of plot after November 1, 2007, the judges, the officers belonging to the independent judicial service must not serve the Executive in the Ministry in any form whatsoever. This, to him, will be tempering with the spirit of Separation of power, Masdser Hossain verdict as well as the Constitution. So any Nitimala or Bidhimala permitting the deputation should be considered void after the separation of Judiciary in 2007.
Interesting to note that this was a challenge to the Nithimala 2001 which the Government depended with full force and success [Para 73 12 MLR (HC) 368]. Justice A B M Khairul Huq unequivocally confirmed that still the Nitimala 2001 has the 'force of law' specially when the Judicial Service (Posting, Promotion, Leave, Control, Discipline and other terms of services) Rules 2006 and its amended version of 2007 have kept the scope of deputation alive. The Appellate Division also has confirmed this.

4. Md. Ashraf Ali Khan Lodi was a District and Sessions Judge of Chittagong. He was appointed as Joint Secretary on deputation to the Judicial Wing of the Ministry of Law in consultation with the Supreme Court in 2002. By June 2007, he was about to retire from the Secretary of the Ministry. Now the Caretaker government appointed Mr. Habibul Awal, Additional Secretary of the Drafting Wing, as the Secretary-in-Charge. Mr. Aftab Uddin, an Advocate of the Supreme Court challenged the appointment being contrary to all the rules and policies of appointment to that post. What the government did was rather thundering.
The Nitimala 2001 was repealed during the hearing of the Rule before the court of Justice Shah Abu Nayeem Mominur Rahman. Now the Government claims that the Nitimala 2001 is violative of the Constitution and against the judgment passed in Masder Hossain case [13 MLR (HC) 105, Para 15]. The Court declared the appointment void which is ultimately upheld by the Appellate Division.

5. You shall see some pious arguments against Judges holding executive posts like Secretary of the Ministry of Law especially when the Judiciary is 'separate'. What is overlooked in those arguments is that the lower judiciary is still a ward in the hands of the Ministry of Law, the 'appropriate authority' now-a-days. A Secretary of the Ministry has the Damocles' Sword which affords enough both in terms of will and power to dictate over the judges and the judiciary. The Supreme Court is given a consultative status at best. You can easily contemplate the fate of a 'consultation' outcome, while the Executive can lavishly afford flouting a judgment of the Highest Court.
At this stage of the write-up Bangabandhu knocks at the door of our memory. While propagating the historic Six-point in 1966, Bangabandhu once asked the Pakistani junta: 'Does it not put you to shame that every bit of reasonable demand of East Pakistan has got to be secured from you at tremendous cost and after bitter struggle as if snatched from unwilling foreign rulers as reluctant concessions?'

The separation of judiciary, if you call it a separation at all, has become a 'reluctant concession' on the part of the 'unwilling' executive, which we attained after a 'bitter struggle'. Probably we need to pay a 'tremendous cost' to purchase true judicial independence. Bangabandhu is fortune bound to remain at the heart of every just struggle for freedom.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.