The lower judiciary is still in the hand of the executive. The government did not set up a separate judicial secretariat vesting the control of the subordinate judiciary in the Supreme Court.
Appointment of judges in the High Court Division and the Appellate Division of the Supreme Court is frequently drawing flacks. Millions of cases have remained pending with both the lower judiciary and the upper judiciary for over the years.
The lawyers in the Supreme Court are now and then engaged in bitter rivalry on narrow political issues much to the frustration of people. Poor budget for the judiciary is also hindering its development.
The legislative has brought big changes in the constitution through the Fifteenth Amendment bypassing a SC?s recommendation which was essential for establishing an independent judiciary.
The SC in its judgment on the Fifth Amendment says, ?It is our earnest hope that Articles 115 and 116 of the constitution will be restored to their original position by parliament as soon as possible.?
But the parliament did not restore these articles to free the lower judiciary from the control of the executive.
Article 116 of the original constitution of 1972 says, ?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 Supreme Court.?
But now the president who acts as per suggestions of the prime minister has the control over the lower judiciary. However the provision of ?consultation with the SC? has been inserted.
One of the 12 directives given in Masdar Hossain case says that the effect that parliament will, in its wisdom, take necessary steps regarding this aspect of independence of judiciary,? the SC said.
Until and unless the unamended Articles 115 and 116 of the constitution are restored to their original position vesting the control of the subordinate judiciary in the SC the separation of judiciary will remain a distant cry.
In this situation reputed jurists are awaiting a positive change in the mindset of the politicians and also the legal professionals which can ensure independence of the judiciary and also institutionalise democracy.
Former adviser to the caretaker government Barrister Mainul Husein said though they had separated the judiciary from the executive during their rule, the independence of judiciary is yet to be established in real sense.
He blamed the mindset of politicians and also the politicisation of legal professionals for this.
?Judges should be appointed transparently to run the judiciary independently and impartially. We passed a law to set up the judicial commission for such appointment of judges independently,? he said.
?But the law was rejected by the political government when it came to power. Unfortunately even the lawyers did not protest it because of their political affiliation,? he added.
Mainul said, ?We made a draft for Attorney Service Law. As per the law Attorneys should be appointed independently. The attorneys will not be liable to change with the changes of the government. But the political government did not materialize it.?
He said: ?A separate secretariat for the SC, independent of law ministry, is a must. Now judges are appointed on political ground. Politicisation of judiciary is contrary to the concept of independence of judiciary.?
Justice Syed Amirul Islam said independence of judiciary is guaranteed under the constitution.
But hundred percent separation of judiciary from the executive is not possible due to some reality.
He said about the appointment of judges in the HC the appellate division in a verdict said that the chief justice will make the list of judges to be appointed in both the divisions of the SC in consultation with the senior judges on the basis of their skill and qualification.
If the ministry, after inquiring into the antecedents of the recommended persons, has any different opinion regarding anyone of the listed persons, they may inform the chief justice citing reason. These should be done in a transparent manner.
He said, ?It needed seven years to implement the directions of the SC in Masdar Hossain case. But the political government has retained some control in its hand while separating the judiciary. They have done it logically.?
Justice Amirul said, ?Magistrates are now absolutely independent in delivering justice. We have observed a remarkable progress in the judiciary after separation of judiciary. Rate of disposal of cases have increased. But that is not up to expectation.?
?When all organs of the state are ill-managed you cannot expect a sea change in the judiciary overnight. It will take time,? he said adding that politicians needed to be more responsible in their manners and conducts and the democracy need to be institutionalised further.
Source: daily-sun.com
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