Execution of Judicial Verdict

A Duty or Option for the Executive?

M Jashim Ali Chowdhury,

LL.M., Department of Law, University of Chittagong

Published in the Law Vision, Law Vision (An annual publication of Chittagong University Department of Law), Issue No 9, 2004-2005, pp. 32-35.

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The simplest organic analysis of the state mechanism tracs out the three basic pillars — the executive, the legislature and the judiciary, each definitely identified by the celebrated doctrine of 'separation of power' expounded by Montesquieu. All the three organs have their own sphere of action and are not allowed to transgress the boundary they are assigned. But question may arise as to their relative strength or bluntly speaking, can one organ work in such a way that obstructs the functioning of another organ or affects its efficacy? Alexander Hamilton, one of the founding father of US constitution, answers about their relative strength as follows:

"The executive not only dispenses the honours but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse no direction either of the strength or of the wealth of the society: and can take no active resolution whatever. It may truly be said to have neither force nor will but merely Judgment arm even for the efficacy of its judgement.”

So, what may happen, if the ‘judgement arm’ of the judiciary doesn't work or speaking otherwise, is not allowed to work even for the efficacy of its judgement? Such an interesting but unexpected question now hunts the constitutional researchers, academicians, students and practicing lawyers in the context of some newspaper reports in recent time.

Genesis of Concern

The daily Prothom Alo came out with a front-page lead story on October 12, 2005, regarding this. It reports that the executive prefers its sweet will in discharging its constitutional obligation of implementing the orders and directions of the apex court. The executive either ignores or weakens the efficacy of any order of the apex court, if such order seems not to be in correspondence with the governmental policy or will. The report also points out some striking examples of flouting the judicial orders by Executive regarding-

1. The Separation of Judiciary
2. Constituting local government body by the elected representatives of the people.
3. Amendment of section 54 (arrest without warrant) and 167 (regarding remand) of Cr. P.C.
4. Conversion of all public vehicles running in Dhaka into CNG operated vehicles.
5. Framing a code of conduct for discipline forces.

Fact Analysis

1. As regards separation of judiciary:

The Appellate Division finding the article 22 or the constitution to be fundamental in proper and fair administration of justice, issued 12-point directives to the government to ensure the separation of the judiciary from the executive organ of the state, on the 2nd December 1999 in the celebrated Mazder Hossein case. Ort so called complicated and time-consuming journey towards the implementation the government, both the present and the previous, one, made as many as 21 successful steps before the Appellate Division till 20th October 2005 and procured their petition granted with the result of six years' delay in the implementation. It is on the 20th October 2005 when the patience and rejected a new time petition for further four months. The Court fixed a date for hearing the charge of contempt of court against

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the government on 1^st February, 2006. The charge of contempt of court against 9 public officials for misinterpretation of the court's judgment will be heard simultaneously on that day. In fact. applying for time, granting the petition and criticizing the government at times by the court became the common scenario of this case during the last six years. More interesting is the comment made by the learned Attorney General before the Full Bench marking the order of the Appellate Division as directory, not being mandatory upon the executive and consequently not being capable of implementation within a framework of time. But the court rejected the argument and observed that it might be a good argument in an earlier stage and not now. This shows, prima facie, an unwillingness in the executive to implement the Appellate Division verdict. The executive seems to face a confrontation with the judiciary which may result into something really unexpected.

2. As regards elected local govt.:

In Kudrat-E-Elahi Vs. Bangladesh 44 DLR (AD) the Appellate Division by a process of interpretation with reference to the principles enumerated in arts. 9 and 11 held that the government cannot refrain from designating an area as administrative unit and through that device constitute a local government body with nominated persons in place of elected representatives of the people. The court ordered for holding elections in all local Government authorities including Upazila Parishad. Ironically the government failed to implement the verdict till today and almost 50 time petitions have been granted! by the Appellate Division and such a Petition is pending before the Appellate Division now.

3. As regards Amendment of sec 54 & 167 Cr. PC:

On 7th April. 2003 a Division Bench of the High of Justice Salma Masud Chowdhury and Justice Hamidul Hoque ordered the amendment of sections 54 and 167 of the Code of Criminal Procedure within 6 months and prohibited arrest under section $4 Cr. PC in the famous BLAST case. On 2nd August, 2005 the Appellate Division granted further 6 months for implementing the order. Yet no

progress is found in this regard.

4. Conversion of Govt. administered vehicles into CNG operated one:

On 27th March 2005, a Division Bench of the High Court Division comprising Justice M.M Ruhul Amin and Justice Khademul Islam Chowdhury issued 7 point directives regarding the environmental degradation of Dhaka. Among them, orders relating to hydrolic horn and CNG conversion of public vehicles remain unimplemented.

5. As regards Code of Conduct for police:

Again, on 18th April, 1999 the High Court Division ordered the government to promulgate a Code of Conduct for the discipline forces of Bangladesh in the context of increasing involvement of police members in various crimes. Unfortunately, last wo governments showed a gross negligence to implement such order.

Execution of Judgment: Mandatory or Directory?

Article 112 of the Constitution of the People’s Republic of Bangladesh provides: “All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court”. The essence of the article 112 is explained by the High Court Division in Tahera Nargis Vs. Shamsur Rahman, DIG (Prison) Dhaka Central Jail 41 DLR 508 512 where the husband of the petitioner was kept detained in violation of two consecutive release order of the High Court Division. The Court held:

“We must make it clear that under Article 112 of the constitution all authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court. It means in the facts and circumstance of the case that if any order is issued by the Supreme Court directing an immediate release of

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any detente, then that order is to be treated as an order from the highest authority of the country. If the order is passed by the High Court Division, then that order can be set aside or stayed only by the Appellate Division and by nobody else. If the order is passed by the Appellate Division, this is final. No other authority can delay, stay or set it aside. No instruction, circular. direction, notification, advice or other instrument of any kind issued by any ministry or any department of the Government which has the effect of staying, postponing, delaying, thwarting or superceding an order of the Supreme Court is binding on any functionary in the country. Unless this observation of ours is followed strictly in letter and spirit it will be the end of rule of law in this country".

Article 108 of the Constitution declares the Supreme Court to be a court of record-

"The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself'''.

Apparently, the power and jurisdiction of the Supreme Court to punish its contempt is the sword without which the provision of art. 112 would turn into some words adorning the constitution without any significant bearing on the supremacy of the court's authority. Much depend on how the term contempt of court is defined. Law of contempt of court is a concept highly developed by judicial precedents. It can be defined as an act that lowers down the image, status or authority of the court in estimation of the public or an act that interferes with or tends to interfere with the administration of justice. The essence of the contempt is an action or inaction amounting to an interference with or obstruction to due administration of justice.

Lord Hardwick in St. James Post case [1744 2th 269] laid down "Prejudicial fair trial" test. The component criteria of prejudicing fair trail are “tendency to prejudice”, “real prejudice” and “substantial interference with the administration of justice”.

Contempt may be civil or criminal. Civil contempt is wilful disobedience to any judgment, direction, order, writ or any other process of the court or wilful breach of an undertaking given by the court. On the other hand, criminal contempt is an obstruction with the administration of justice committed by scandalizing, prejudicing or intimidating the court or otherwise. Contempt may be even conduct of the contemner. Given the above facts, readers will decide whether the mental attitude analysed above covers both the civil or criminal contempt.

In Tahera Nargis, the Court explained that in contempt matters the intention of the contemner is not relevant. It is the effect of the contemner's action which is to be taken into consideration in deciding whether a contempt was committed or not. The effect of the contemner's action that the sanctity of the Court's order has been flouted is enough.

Supreme Court: The core of confidence

The courts of justice are the creation of the sovereign authority, but their mainstay rests in the public confidence. Anything, which is calculated to withdraw the public confidence from them, has the character of a lidder.

What is the philosophy behind the judicial whip upon other organs of the state may be found in the celebrated observation of the Supreme Court in Abdul Hague Deputy Commissioner Vs.. District Judgeship 51 DLR 1990 (AD) 15.

"Not only a government official, high or low, but everybody should try to uphold the image of the Court, not for the sake of the Court but for the sake of society, for their own sake".

It is necessary the position which the to arm the courts with powers to defend themselves against every attack upon the position which they occupy in the administration of justice. Confidence in the capacity as such can be allowed to be affected only at the risk of dissolution of the entire system of court.

The ultimate result may be that fear of judiciary may give place to a mere formal respect. An Indian

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incident which occurred in Gujrat on 25th September 1989 reveals the depth of the evil.

The Chief Judicial Magistrate (CJM), Nadiad (Gujrat) was upset by the non-cooperation of the police in the matter of trial. He complained against the local police to the higher police officials. The Police Inspector, annoyed by the action taken by the Chief Judicial Magistrate, withdrew constables posted in his court. The CJM filed two complaints against the Police Inspector and other police officials delaying the process of the courts. The Police Inspector displeased by the actions taken by the CJM made a complaint to the Registrar of the High Court through proper channel. While hostility between the two had reached that point, the Police Inspector met the CJM in his chamber, assuaged him and invited him to visit the police station to see registers by himself and further added that such visit would have a mollifying effect on the sentiments of the police officials. The CJM accepted. What happened exactly in the chamber of the Police Inspector is not yet clear, but the CJM was arrested, handcuffed, tied with ropes. The photograph in such a state was given wide publicity. The CJM was sent for medical examination and at the hospital he was made to It on the bench in the Verandah exposing him to public gaze in the start described above. Criminal action against the CJM was also maned for offence of violation of the Prohibition Act and acts of violence. This had created a great commotion in the Bench and the Bar. The Supreme Court was asked to step in. Six police officers were found guilty of contempt of court, convicted thereunder and sentenced to imprisonment varying from one month to six months and fines varying from Its. 2000/- to Rs. 5000/-. The Supreme Court of India in this case has given some guidelines to be followed for preserving the Independence of judiciary and ensuring that offences are properly investigated. But the police officials in Gujrat have taken a serious exception to the Supreme Court decision and submitted to the Governor a two-page memorandum in which they asked the government to move an application for the revision of the Supreme Court order by a Constitution Bench.

This incident should be an eye opener and lead to redefining clearly the relationship between the judiciary and the executive and to restoring the former enabling it to act in full independence and authority unhampered by the executive.

Recommendations

The unexpected and harsh reality has reached to the crux. It is the high time we retrieved and redefined the whole area of executive-judiciary relation. The following may go a long way to find out a viable solution-

1.       Immediate steps should be taken by appointing Ombudsman or by forming a Law Commission with special duty of reviewing the law of the related area.

2.       New law resembling to Order 21 of C.P.C. may be framed for the enforcement of orders in PIL cases as is recommended by Justice Gulam Robbani.

3.       Even more effective device may be the creation of special monitoring agencies who will report back to the courts on the effectiveness of the ordered enforcement procedure. Although it appears in the first glance that this amounts to encroachment by the judiciary in the domain of the executive, it is not so in practice when applied judiciously and only in appropriate cases.

Though new and unprecedented to as such attempt has been made in India in few earlier instances like Sheela Barse Vs. Union of India (1988), Bandhua Mulai Morcha Vs. Union of India (1989), Melua Vs. India (1986).

Finally, we can conclude that Judiciary should render only well-judged, logically justified, and circumstantially realistic judgment, and once it gives a valid verdict, it is the duty of the executive to implement it. Procrastination is the thief of time, the executive should check this thief and should honour the judgment of the judiciary at least as much as it deserves.