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Wednesday, September 26, 2018 07:53:56 AM
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Human factor of independent judiciary has to be bolstered

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By MAINUL HOSEIN
02nd-Nov-2016       
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Judiciary has to show the strength of its independence, otherwise it is bound to erode. The constitutional protection of independence of the judiciary has been fully ensured by fulfilling the legal requirement by the army backed caretaker government in 2007. The landmark process of separating the judiciary structurally from the executive was then done in terms of the direction of the Supreme Court.

The judges and lawyers together constitute the functional human force of the independent judiciary. If the courts can show their constitutional backbone of independence in dispensing justice the administrative hindrances will not be found so difficult.

Now the constitutional and legal structure of independence for the judiciary is strongly in place. It is for the courts to assume and exercise the core power of an independent judiciary.

Surprisingly, our democratic Constitution faced anti-democracy assaults from the beginning. In less than two years the fourth amendment was passed which totally made it a one party authoritarian Constitution. All powers were vested in the President. And accordingly there was no scope for an independent judiciary.

It was through successive martial law changes that the one party Constitution was democratised step by step but not yet fully. Once again dismantling of the democratic character of the Constitution has begun.

A law has been passed to punish the Supreme Court justices by the one chamber parliament which means the Prime Minister will judge the conduct of Supreme Court justices. This law is under challenge before the Supreme Court.

But it will be right to say that constitutionally the judiciary is fully independent for dealing with justice and every democratic minded person in position of influence must make best use of the present position so that judiciary works independently in doing justice. Administrative and other hurdles are different matters to be dealt with differently.

There is no denying that as because of the clash between democracy and authoritarianism continues, the threat to judiciary also continues. If the government can undermine democracy and rule of law there will be greater conflict with the judiciary. The problem is that independent judiciary and autocracy cannot survive together. 

The hurdles exist in the way of administration of the judiciary are separable from the issue of independence of the judiciary.  On the strength of the constitutional guarantee of independence of the judiciary we have to fight to overcome these hurdles in the field of administration of the judiciary.

We must have a separate secretariat for the Supreme Court to end administrative hurdle caused for its dependence on the Law Ministry for secretarial work. The previous government was working on it; but job remained to be completed by the elected governments that came after.

But in dispensing justice independently there is no constitutional or legal hurdle especially when the Chief Justice himself assured the other day that there is no interference from the government.

We have to admit with the Chief Justice that dualism in administration of the judiciary is undoubtedly hindering the judicial process. The power of transfer, promotion and punishment has to be with the Supreme Court to ensure the lower courts to function independently of the government.

He mentioned Article 116 of the Constitution. Before amendment power of transfer, posting etc. of the judicial officers were vested in the Supreme Court. President will do all these now in consultation with the Chief Justice. After amendment the power of the Chief Justice over the judicial officers has become restricted affecting the independence of the judiciary effectively.

Here comes the basic consideration that is if democracy remains in crisis the independence of the judiciary cannot remain out of that crisis. The present dualism in respect of administration of justice is the cause conflict with democracy.
 
The judiciary is not a state within a state but it is responsible for performing the two most essential functions of the state, such as dispensing justice and ensuring good governance. It is not easy for the power blinds to understand how important a role the judiciary plays in helping the government to govern well.

The courts have to be strict in protecting individual's rights guaranteed under the Constitution. Insisting on speedy disposal of cases is not everything about justice. Refusal of bail is not to be seen as an easy matter. To suffer imprisonment before one is found guilty is not justice.

It is our belief that if bail is not easily denied there will be no encouragement to false and frivolous cases. False and baseless cases are filed for harassing innocent people, to make them suffer in jail.

Police remand is not rule of law and unconstitutional. This is helping police to file any case knowing bail will not be granted easily. To be completely helpless in the hands of police, is not the protection of law. That inhuman treatment or torture frequently meted out to helpless person taken into police remand not unknown but the courts have not stopped doing favour to the police.

In most cases the accused persons are not afraid to face the criminal cases, but they are frightened of refusal of bail and punishment in police remand.

The independence of the judiciary is for enjoying rights by the people against injustices and not to suffer abuse of law. We have been insisting that persons must not be sent into police remand. The Supreme Court also has laid down guidelines for interrogation by police without requiring a person to be sent in police custody.

Killing of anybody by police does not prove anybody's guilt as a dacoit or a terrorist just because police say so. Justice is seriously hindered by such extra-judicial killings.

The administrative hurdles will have to be overcome by doing justice without fear or favourite. The judiciary is not helpless to come out firmly in protection of life without trial.

Let us not politicise justice. That will not helpful for good politics or fair justice. The judiciary is independent enough to save people from abuse of laws in the name of judicial process.

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