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.
P. 32
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-
- The Separation of Judiciary
- Constituting local government
body by the elected representatives of the people.
- Amendment of section 54 (arrest
without warrant) and 167 (regarding remand) of Cr. P.C.
- Conversion of all public
vehicles running in Dhaka into CNG operated vehicles.
- 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
p. 33
the government
on 1st 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
p. 34
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
p. 35
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.
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