Bangladesh: Judicial Independence

Published: Wed 5 Aug 2009 03:55 PM
August 04, 2009
A Statement by the Asian Human Rights Commission
Bangladesh: Bangladesh Should Be Careful About The Judiciary's Independence
The Government of Bangladesh issued a notification on July 30, 2009 that the country's President had forced the retirement of two Judges -- Mr. Abdul Gafur, the District and Sessions Judge of Dhaka district, and Mr. Md. Shahjahan Shaju, Judge of the Women and Children Repression Prevention Tribunal of Gazipur district -- for "violating service rules". The two judges as the President and General Secretary of the Bangladesh Judicial Service Association respectively led a demonstration on July 27 at the Bangladesh Secretariat, the administrative headquarters of the country.
According to reports, around 100 judges of the country arrived at the Bangladesh Secretariat on July 27 to demonstrate against some decisions made by the government regarding the exercise of power by the administrative officials over the judiciary, which undermines its independence. The Bangladesh Judicial Service Association, a professional organization of the judicial officers of the country, organised the demonstration. The leaders of the Association met the Law, Justice and Parliamentary Affairs Minister Barrister Shafique Ahmed to press their demands. The Minister told the media that the judicial officers met him to "express their opinion on the decision to divide the Law Ministry into two divisions – the Legislative and Parliamentary Affairs and the Law and Justice Affairs" – as the government was planning to do. Responding to a question asked by a journalist the minister stated that the issue relating to the judges retirement, the reason for participatin g in the demonstration, i
During the course of the demonstration, the Deputy Secretary (Security) of the Ministry of Home Affairs allegedly directed a group of armed police to search the bodies of the judges, which was taken as an insult to the judicial officers. The bureaucrats accused the judges of unlawful access to the ministry. On the other hand, the judicial officers claimed that they attended in order to prevent the government from a "pre-planned" subjugation of the Judiciary at the hands of the bureaucrats. They also demanded the removal of the Secretary, the bureaucratic head of the Law Ministry, Mr. Habibul Awal, whose controversial recruitment in the office is pending before the Supreme Court and who was also accused of pro-executive actions which undermines judicial independence.
On July 30, the Government issued a notification that the country's President forced two judges into retirement. These two judges are President and General Secretary of the Bangladesh Judicial Service Association respectively. The notification said that "in order to maintain discipline in the public service, the Government sent the two judges into retirement in accordance with Section 9(2) of the Public Servants (Retirement) Act-1974.
After the Presidential order, the judicial officers declared that they would challenge the governmental decision of forced retirement before the higher judiciary. They termed the decision illegal. The decision required "consultation with the Supreme Court", according to Article 116 of the Constitution of Bangladesh and Section 6 of the Judicial Service (Constitution, Recruitment, Suspension, Dismissal and Removal) Rules-2007.
On August 3, the government, in a separate notification, cancelled its previous decision of forced retirement of the two judges. The notification said that there was a procedural mistake regarding the previous decision.
The factual instances clearly show that there was abuse of government powers regarding the forcible retirement of the two judges. The violations are as follows:
Firstly, forcible retirement is deemed to be a punishment. According to the law nobody is authorized to inflict punishment to anybody without a competent and fair trial, which did not happen in this case.
Secondly, the Judiciary of Bangladesh has been officially separated since 1 November 2007 and the way in which the current Parliament ratified the law was executed without much priority. Independence of the Judiciary clearly means that the Government should not have any authority to intervene into the judicial matters as it has practiced in the past as part of the executive branch. Instead, the Supreme Court of Bangladesh should have all power to deal with the issues of the judiciary and matters relating to the judges’ services.
Thirdly, the decision of forcing the two judges into retirement without consulting the Supreme Court is a violation as per Article 116 of the Constitution of Bangladesh, which reads: "The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court." In reality, the Government did not consult with the Supreme Court on this regard and thus clearly violated the constitutional provision. Also, the government’s claim regarding the "procedural mistake" was a fictitious excuse.
The Asian Human Rights Commission (AHRC) urges the executive authorities of Bangladesh not to infringe on the independence of the judiciary of the country. Instead, their responsibility is to support the process of judicial separation through ensuring its financial autonomy and enriching its logistic and infrastructural needs for the sake of the Rule of Law, which is the ultimate goal of the nation. The AHRC also urges civil society of Bangladesh to increase debates constantly within the country and pressure the government by exposing the defects and loopholes of the judicial process that remain an obstacle to the independence of the judiciary and the implementation of the Rule of Law. The nation should explore the reasons why the judges have to demonstrate for their demands and how rational their claims are in terms of judicial independence.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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