& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

LAW alter views

Rule of law and independence of judiciary

NAJMUL HASAN
To ensure absolute independence of the Judiciary England had to fight a long and sustained battle and it was not until 1701 that she was able to achieve that object.
Sir Winston Churchill said of the judges, "There is nothing like them at all in our England. They are appointed for life. They cannot be dismissed by the Executive Government. They have to interpret the law according to their learning and conscience".
About the salary of judges it is recognised in England that it should be such that they would be able to maintain a way of life befitting the gravity of the duties they have to discharge. They are at present the highest paid officials in England except the Prime Minister and a few others.
Lord Denning said, "Such is the price which England readily pays so as to ensure that the Bench shall command the finest character and the best brains, that we can produce".
In the words of Sydney Smith, "Nation fall when the judges are unjust because there is nothing which the multitude think worth defending; but nation do not fall which are treated as we are treated".
If we cherish the independence, efficiency and impartiality of our judiciary as the people do in England, we should see to it that the judges are better paid, that they are able to work so long as they are fit, that their salary and pension are increased and that they have nothing to look forward to at the hand of the government either in the course of their service or after their retirement. The service promotion and appointment of the judges should be made immune from the action of the government and their service promotion, salary etc. should not be in the hand of the Executive and the Government, so that the government or any other quarters cannot exert any influence upon the judges.
All political parties, especially while in the opposition shouts, for rule of law and independence of the judiciary. In all political movements the demand for rule of law and independence of the judiciary was one of the main slogans in our country and yet the "Rule of Law and complete independence of the judiciary" could not be achieved. One of the main slogans of the political party now in power was "Rule of law and for the independence of judiciary" and still the same has not been fully achieved and established even after passing of the 33 years of independence.
The parties now in opposition with full throat are "shouting for rule of law and for independence of the judiciary" but while they were in power they did exactly the opposite. They did not make any efforts for establishing "Rule of law and independence of the judiciary" rather they tried to make judiciary subservient to the Executive and the Government and to that end they did not hesitate to amend the Constitution from time to time to suit their purpose. The first major encroachment upon the independence of the judiciary and to make it subservient to the executive was made by the 4th amendment of the constitution. The power of impeachment of the judges was taken away from Parliament, and the President was vested with the sole authority to remove, suspend and dismiss judge of the Supreme Court without any charge, notice or show cause.
That was the first blow upon the 'Rule of Law and the Independence of the Judiciary" immediately after independence.
Thereafter, during the last regime from 1982 to 1990, attempts were made to weaken the judiciary further and to make it subservient to the Executive by 8th amendment and bifurcation of the High Court Division of the Supreme Court of Bangladesh.
In 1982 during the last regime and the government perhaps the cruelest blow was inflicted upon the judiciary when four senior most eminent judges of the Supreme Court of Bangladesh were removed arbitrarily.
The aforesaid removal of the 4 senior most judges of the Supreme Court including the Chief Justice shall always remain as the most naked and barbaric act and encroachment upon the "Rule of Law and the Independence of the Judiciary."
Even under those unfavourable conditions judges of the Supreme Court of Bangladesh, made their utmost to uphold the dignity and independence of the judiciary. (And in doing so the as far noted 4 eminent judges lost their jobs.) Subsequently it was the Supreme Court of Bangladesh which restored back its power, authority, jurisdiction and independence to a great extent by its unparalleled historic judgement declaring the 8th Amendment to the Constitution in relation to the bifurcation of the High Court Division and curtailing of the overall jurisdiction of the High Court Division over all the territorial jurisdiction of Bangladesh as illegal, unconditional and void.
Till date, the reasons, for the removal of the aforenoted senior eminent judges of the Supreme Court from their office are not known. These eminent judges were not only removed from service most illegally and arbitrarily in flagrant violation of all norms, forms ethics and principles. They were as well restrained from practising law for their livelihood and as well they were refused any compensation or pension whatsoever. Except Chief Justice Kemaluddin Hossain who was given pension.
One of the 4 judges, Mr. Justice SM Hussain, could not absorb the shock of his illegal removal from service and died of cardiac failure. It is shocking that till today nothing worthwhile has been done by the present democratic government to compensate and redress the family of that eminent, dedicated judge and the other three judges of the Supreme Court of Bangladesh.
Mr Justice SM Hussain became a victim of the past regime along with other three eminent judges, for their uncompromising and unflinching judicial temperament and their relentless endeavour and efforts to establish rule of law and to safeguard independence of the judiciary. Many years have passed since Justice SM Hussain has died, with all his pain, agony and helplessness in his tormented mind but we the lawyers and officers of Court
will never forget him nor his name will ever be forgotten in the history of the judiciary of Bangladesh.
It is now quite evident that the political parties always shout for the "Rule of Law and for Independence of the Judiciary" not for the sake of the judiciary but rather to achieve their political objective and to give impetus and momentum to their criticism and movement against the party in power.
The major political parties including the party now in power and the parties who had been in power and are now in the opposition seem to have used their slogan for "Rule of Law and Independence of the Judiciary" for achieving their political aims and objective rather than for the sole interest of the judiciary and the nation. Activities in the past as referred to above show that they exactly did the opposite things and 4th and 8th amendments brought about by the past two political parties then in power, as quoted above, bear, testimony to the same.
Under the present circumstances it seems that no more reliance can be given upon the slogan for "Rule of Law and for Independence of the Judiciary" when it is being raised by any political party.
Now it is high time that the slogan needs to be raised by all lawyers irrespective of cast, creed and political affiliation unanimously to achieve "Rule of Law and Independence of the Judiciary" in the country.
As referred to in the historic 8th Amendment case Judgement that independence of judiciary is not an abstract conception. The reference given therein where Bhagwai, J said "If there is one principle which runs through the entire fabric of the constitution, it is the principle of the rule of law and under the constitution it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective." He said that the judges must uphold the core principal of the Rule of Law, which says "be you ever so high, the law is above you." This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy and maintenance of the rule of law as dynamic concept and delivery of social justice of the vulnerable section of the community. It is this principle of independence of the judiciary which must be kept in mind while interpreting the relevant provisions of the constitution."
In the said historic 8th Amendment Judgement words of Justice Krishnaiyer was quoted "Independence of the Judiciary is not genuflection; nor is it opposition to every proposition of government, it is neither judiciary made to opposition measures nor government pleasure."
The author is an Advocate, Supreme Court.