(Continued from the last week)

^T^HERE is a misgiving in nbl" the minds M-n)atiy .rihat

JL the judicial organ 5fil.the a State means 'the Suprert* Court ■ atone and »Me 'BUbbMIihate courts do nW town ^aw'of ihe judicial organ of the State exercising sovereign judicial power. This idea had its birth at the very inception of the present judicial system in the Indian Sub-continent when more than two hundred years ago the British were establishing their colonies in India and along with the colonies were setting up the courts. From the very beginning the British treated the Judges of the subordinate courts as civil servants like all other civil servants and they were always equated with the administrative executives. The same idea and the same system persisted long after the British left and still persist, at least in Bangladesh. This is absolutely wrong and when reiterated in the Constitution, an abuse of the concept of judicial independence. It must be understood that the independence of the Judiciary means independence of the Judiciary as a whole and the judiciary indisputably consists of the superior court and the subordinate courts.

The State has been enjoined to ensure the separation of the judiciary from the executive organs of the State." (Article 22). But this wholesome provision has been hedged in by including it as one of the "Fundamental Principles of State Policies", thereby making it unenforceable through the Courts (Clause 2 of Article 8). The Supreme Court is. however, unaffected by this hurdle against the concept of the separation of powers and has all along been enforcing it in practice expect during extra -constitutional regimes. The picture is Just the reverse so far as the subordinate courts are concerned.

Like Clause (4) of Article 94, Article 116A guarantees that all

persons employed in the Judicial service, i e, the Judges from the rank of District Judge to the rank of Assistant Judge and Magistrates exercising Judicial functions shall be independent. That is all. It will be readily apparent that in the very constitutional set-up it self the pious wish expressed by the constitution-makers in Article 116A had been rendered nugatory.

Article 115 empowers the President to appoint persons to offices in the judicial service and as Magistrates. This is at present done on the basis of competitive examination conducted by the Public Service Commission. There is no separate Judicial Service Commission for recruitment of Judges and Magistrates in the subordinate Judiciary and the Supreme Court or the Chief Justice is in no way associated with their recruitment and appointment. The part played by political clout In appointment of judges and magistrates in the subordinate judiciary now-a-days is often talked about — and often not without reasonable basis. The present method of recruitment and appointment is at least the sworn enemy of the noble principle. “Justice should not only be done, but must also appear to have been done." The lamentation of a US President that after appointing an intimate friend as a Judge of the US Supreme Court he lost his friend for all time to come may be often inapplicable here. As such, the method of recruitment and appointment in the subordinate judiciary has to be placed in the hands of a body of persons who are not amenable to any consideration other than merit and suitability of the candidates.

Article 116 (which ironically proceeds Article 116A

guaranteeing independence of the Judges and Magistrates) vests the control (which includes the power of posting, promotion, and grant of leave) and discipline of persons employed in the Judicial service and Magistrates exercising judicial functions in the President and requires the President to exercise it in consultation with the Supreme Court. Originally. Article 116 provided that the power would vest completely in the Supreme Court but instead of implementing it this power was transferred to the executive organ of the Government by a subsequent constitutional amendment secured not through martial law dls-Ensation but through a popu-

ly elected Westminster type of Parliament. The requirement of “consultation" with the Supreme Court by the President was. however, a subsequent innovation under martial law dispensation — an obvious attempt to exhibit respectfulness of the military to the concept of independence of the Judiciary. The impact of Article 116. as it stands today, on the independence of the subordinate courts will be illustrated by a single concrete instance. During the latest military regime, a district Judge was transferred from the capital within twenty-four hours after he had passed an order which was not liked by the Government. Cases of serious misdemeanour by Judges and the supporting staff of the subordinate courts detected by the Judges of the Supreme Court while inspecting their courts and reported to the Government with recommendations for taking drastic action were some-

times overlooked and ‘sometimes treated with paternal indulgence.

In some cases even the "formality" of consultation with the Supreme Court before promoting some judges of the subordinate judiciary was avoided by the Government. And. in this context, the Supreme Court observed in a case. "There is no dispute that the original Article 116 enacted in the Constitution of 1972 was perfectly in con formity with the independence of the Judiciary and the concept of the separation of the judiciary from the executive as enshrined in Article 22 of the Constitution and also the pledge of the people of Bangladesh embodied in the third Paragraph of the preamble to the Constitution. It is clear that all these concepts including the concept of independence of the Judiciary and the separation of the Judiciary from the executive organ of the State were done away with by enacting Section 20 of Act II of 1975. It also appears that by a further amendment of Article 116 of the Constitution, al though by a Martial Law dispensation. the concept of independence of the Judiciary and the concept of the separation of powers as enshrined in Article 22 of the Constitution as well as the pledge embodied in the third Paragraph of the Preamble thereof were partially restored."

Yes. the restoration was only partial, and. as we have already seen, has been largely ineffec tive in securing independence of the subordinate Judiciary in Bangladesh, because, the retention by the executive organ of the State of the power of promo

tion. transfer and discipline ot Judges of the subordinate Judiciary and Magistrates exercising Judicial functions has exposed them to an expectation of favour, or. a gnawing fear of victimisation and in such situation, they can not be expected to discharge their Judicial functions without fear or favour. Moreover, without commenting on the genuineness of the allegations of interference, at least, it must be said that the constitutional provision empowering the executive organ to control the judges of the subordinate courts has lowered the image of the subordinate judiciary and loss of image of the judges can never be conducive to the basic principle of administration of justice. "Justice should not only be done but people must also fell that Justice is being done". To achieve public acceptance of judicial decisions, the judges' functions must both be and be perceived to be carried out impartially vis-a-vis the parties and the executive and legislatives branches of the state." (Emphasis added) So far as the constitutional requirement of "consultation" is concerned, apart from the omission to consult the Supreme Court, the Government often feels that the constitutional requirement of "consultation" Is fully met as soon as "consultation* is made and no further. In many cases in the past "consultation" had been in the literal sense of the term. As such, promotions and postings are resorted to by the Government, not infrequently, bestowing undue favour and withholding legitimate due. against the opinion of the Supreme Court. The net result is strangulation of the Judicial independence of the subordi nate courts followed by erosion

of the.very foundation on which the upper edifice of the judicial organ of the country is based having been built-up through thecMrtiirfes.'1 '

"O'w’the? abdve ebntext-, the "tirhe hak ‘arrived for all se-'riafis-'nHnd^d people To Consider what is the implication of "consultation" with the Supreme Court under Article 116 of the Constitution. Does it merely mean "consultation" in the literal sense of the term? Does the word carry merely lexicographic and pedantic ■ meaning? In order to find an answer to these questions it is necessary to refer to one or two other Articles of the Constitution.

Article 109 provides that the Supreme Court shall have superintendence and control over all courts subordinate to it.

Article 94 (4) and article 116A guaranteeing independence of the Judge of the Supreme Court and the subordinate courts respectively have already been referred to.

The literal, lexicographic and pedantic interpretation of the word, "consultation" according in Article 116 renders the effect of Articles 109 and 116A absolutely nugatory, because. Without control over the presiding judges there cannot be any effective superintendence and control by the Supreme Court over the courts subordinate to it and executive control of the Judges of the subordinate courts by the Government cannot. we have already said, ensure their independence Article 116 must, therefore, be read alongwlth the other provisions of the Constitution, particularly. Articles 109 and 116A. So, the world, "consultation" occurring in Article 116 means "fruitful and effective consultation" and does not mean merely "formal, empty or unproductive consultation, as literally un derstood. The lexicographic and pedantic interpretation of the word, "consultation" occurring in Article 116 is. therefore, an interpretative error and virtually means that the opinion of

Supreme Court obtained by the Government under the said Article cannot be arbitrarily and readily disregarded an in case of disagreement the matter must be referred back to the Supreme Court with reasons for disagreement for further consideration. In that case also the question as to whose opinion shall ultimately prevail in case disagreement persists shall remain an open question for a long time in Bangladesh, if the original Article 116 is not restored.

I shall now refer to two of the numerous cases in which the Supreme Court of India authoritatively interpreted the word, "consultation", in similar context. Article 233 of the Indian Constitution provides that appointment of persons to be. and posting and promotion of District Judges (which is, as in Bangladesh, the highest tier in the subordinate judiciary in India) shall be made by the Governor of the state (who is the Chief Executive of the state) in consultation with the High Court of the state concerned. In state of Kerala Vs Laksh-mikutty. the Supreme Court of India having been called upon to interpret the word, "consultation". occurring in the above Article said. "As well settled, the duty of the Governor to consult the High Court in the mat-

ter of appointment of district judges is so integrated with the exercise of his power that the power can only be exercised in the manner provided in Article 233 (1). Normally, as a matter of rule, the recommendations of the High Court for appointment of a district judge should be accepted by the State Government and the Governor should act on the same. If. in any particular case, the State Government for "good and weighty reasons" finds it difficult to accept the recommendations of the High Court, the State Government should communicate its views to the High Court and must have complete and effective consultation with the High Court in the matter." (Emphasis added).

Yet. in a later case, the Supreme Court of India went further and said that in case of appointment of Judges of the Supreme Court the provision for mandatory "consultation" with the Chief Justice of India by the President of India as required by Article 124 of the Indian Constitution, means that the opinion of the Chief Justice must have primacy and in case of unresolved disagreement the views of the Chief Justice must prevail.

The writer, a retired judge of the Supreme Court, is a member of the Law Reform Commission.