High hopes, hurdles as judiciary to start new era

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The country tomorrow sees the much-awaited implementation of the constitutional provision for separation of the judiciary from the executive, which has been ignored by political and military governments over the last 36 years.

From tomorrow all magistrate courts across the country will come out of the executive control and continue operating under the authority of the Supreme Court (SC).

The separation nourishes big hopes of ensuring smooth functioning and absolute independence of the judiciary but also faces a few problems initially.

According to the constitution, “The state shall ensure the separation of the judiciary from the executive organs of the state.” But, the provision has remained neglected since formulation of the constitution in 1972.

The SC gave a directive in 1999 for the separation, but successive governments deliberately delayed fulfilling the constitutional demand.

The present non-party caretaker government started initiatives for separating the judiciary in January after assuming power.

Chief Adviser Fakhruddin Ahmed will inaugurate the historic event at the China-Bangladesh Friendship Conference Centre at 10:30am tomorrow by declaring the Dhaka District Judicial Magistracy and the Dhaka District Metropolitan Magistracy.

Chief Justice M Ruhul Amin will attend the programme as special guest while Law, Justice and Parliamentary Affairs Adviser Mainul Hosein will preside over the ceremony.

Around 600 executive magistrates entrusted by the administration with judicial job will return to their administrative duties tomorrow.

The SC has already appointed 202 judicial magistrates to carry out the duties at the magistrate courts.

Meanwhile, the existing backlog of around five lakh cases pending with the magistrate courts is feared to worsen further due to the insufficient number of judicial magistrates.

The surfeit of cases at the sessions judge’s courts is also feared to deteriorate as the judicial magistrates have been selected from different ranks at the sessions judge’s courts.

SC Registrar Ikteder Ahmed, however, expressed a different view yesterday to The Daily Star: “The judicial magistrates will be carrying out judicial duties round the clock. So, the cases [at magistrate's courts] will be disposed of quickly.”

He said more judicial magistrates will be appointed in the next three months.

The executive magistrates could not spend their full time dealing with cases at their courts as they also had a number of other duties to perform.

Ikteder said, “The executive magistrates do not have adequate judicial knowledge as they do not have any degree in law. The separation of the judiciary will be helpful to ensure quick justice.”

It is widely believed that ministers or administrators used to largely influence the judicial processes, particularly granting bail and passing orders, as the executive magistrates worked under their control. In cases of non-compliance with the superiors’ directives, the magistrates would mostly be stripped of their magistracy power and transferred to other administrative jobs.

Different political governments even used the magistrate courts to get political purposes served or gain other interest.

SC Registrar Ikteder said, “Separation of the judiciary is a constitutional mandate and a demand of the people for the welfare of the people. We hope judicial magistrates will be able to carry out duties independently once the separation is implemented.”

Meanwhile, many expressed doubts about how much the SC will be able to manage the huge administrative task efficiently and properly after the separation.

Eminent jurist Dr Shahdeen Malik told The Daily Star, “This is a big step in maturing of state organ and democracy. Our expectations are high, but it will not be a smooth process as the Supreme Court will have to shoulder a lot of administrative and management responsibilities about which it has hardly any experience. Nevertheless, the Supreme Court will usher in a new era of justice.”

The SC has already formed a committee to monitor the activities of the magistrate courts. But experts said the committee will not do any management work; it will rather guide the magistrates and gear up the activities of the magistrate courts.

Ikteder said, “As article 116 of the constitution has not been amended, the Supreme Court will not be doing the management job independently. It will share the work with the law ministry.”

Article 116 of the constitution 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 rest in the [President] [and shall be exercised by him in consultation with the Supreme Court].”

The SC registrar said, “The Supreme Court will not be able to perform the duties of posting, transfer and promotions of the magistrates without consulting with the government authorities concerned.”

Many experts observed that the absolute independence of the judiciary cannot be ensured unless the article is amended.

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