108

CHAPTER 9
EPILOGUE
9.1) Introduction:
The foregoing chapters of the assignment present an evaluation of the existing conditions of
judicial independence and judicial accountability in Bangladesh. The concepts of judicial
independence and accountability involve numerous aspects including the appointment , posting ,
promotion and transfer of Judges, tenure and other terms and conditions of judicial service,
discipline and other forms of informal scrutiny of judges. Not all the aspects of judicial
independence and accountability are examined in this study. As discussed in chapter one, this
book concentrates on (1) the appointment of judges, (2) the tenure of judges, (3) discipline of
judges, (4) media scrutiny of judges and (5) the scrutiny of judges by the legal profession.
This final chapter summarises the major findings of the work. In doing so, it identifies the
strengths and weaknesses of the system of constitutional and judicial administration relating to
the independence and accountability of the judiciary. It also outlines the possible solutions to
strengthens judicial independence and to ensure judicial accountability in Bangladesh.

9.2) Strengths:
The Constitution of Bangladesh guarantees that judges shall be independent in the exercise of
their functions. In addition, there are some other features of the judiciary which strengthen
judicial independence and ensure judicial accountability and overview of these features is as
follows:

As discussed in chapter five judges in Bangladesh enjoy a fixed tenure of office until a
mandatory age of retirement. Supreme Court judges and subordinate court judges hold
office until the attainment of 65 and 67 years of age respectively, under the constitution
and the public servant(Retirement) Act 1974.

109
Judges are subject to removal for specific causes and under a specified procedure through
during the material law period some judges were removed from office without assigning any
reason or following the specified procedure. Supreme court judges are removable for gross
misconduct and physical or mental incapacity. They may be removed by the order of the
president of Bangladesh following an enquiry conducted by the supreme judicial council
composed of the Chief Justice and the two next senior judges.
Subordinate court judges in Bangladesh are subject to disciplinary action for inefficiency,
misconduct, desertion, corruption subversive activities. The disciplinary proceeding against,
subordinate court judges, are initiated, investigated and adjudicated by the executive through
the Ministry of law, Justice and Parliamentary Affairs, however, in this respect the executive
consults in the supreme court under Article 116 of the Constitution.
Thus the power of removal of discipline of judges is not passed exclusively in the executive.
The Supreme Court has a role in disciplining judges.

There is a well-Organised legal profession which plays a significant role in maintaining

judicial independence and accountability in Bangladesh. Members of the profession
actively protest any act of interference with the independence of the judiciary and there
are some instances where they have successfully restrained such interference. The
incident of the appointment of the nine additional judges in 1994, as mentioned in chapter
four, is an important example of the effective role of the bar.

The bar also plays an effective role in scrutinizing the conduct and performance of individual
judges. As discussed in chapter eight, members of the bar individually and collectively
protest or criticize the misconduct of judges. This role of the bar ensures that judges are
careful in exercising judicial function and maintaining judicial conduct. It is an effective
informal mechanism of ensuring judicial accountability.

The media in Bangladesh plays an important role in preserving judicial independence and
ensuring judicial accountability. It conveys information to the public about the judiciary
and criticize matters which may be crucial to the independence and accountability of
judges. For example, the midnight sitting of the judiciary discussed in chapter seven, for
granting bail to an accused in a sedition case was extensively covered by the media.

110
Another example as discussed in chapter six is the publication of the cassette scandal
which forced a High Court Division judge to resign from the office for a telephone
conversion with a former president convicted in a corruption case.

9.3) Weaknesses:
Although judicial independence is guaranteed by the constitution of Bangladesh, there ere
numerous important weaknesses which undermine te independence and accountability of
judges. Some of the weaknesses are summarised below.

The criteria for appointment of judges in Bangladesh, as discussed in chapter four, are not
explicitly published. Only some specific eligibility criteria have been stated in the
constitution and in the statutory instruments. In some cases, principles of seniority and
quota are followed, but other criteria or qualities considered in making judicial
appointment are not made explicit or publicly known. Moreover, magistrates exercising
judicial functions are appointed from among public servants and a qualification in law is
not a requirement for them.

The executive enjoys almost exclusive power in appointing judges at all levels. In
appointing Supreme Court Judges there is a constitutional convention to consult the Chief
Justice, but there are instances, as discussed in chapter four, where this convention has
not been followed. In appointing judges at entry level to the subordinate judiciary there is
no role for the Supreme Court, even by way of consultation. In making appointments by
promotion of subordinate court judges, the executive is under a constitutional obligation
to consult the Supreme Court. In practice, this constitutional obligation is maintained in
the case of persons employed in the judicial service, but not in the case of magistrates
exercising judicial function.

The process of judicial appointment is very secretive and there is no scope for public
scrutiny. Furthermore, there is no participation of members of the legal profession or lay
persons in making judicial appointments.

Although judges have a fixed tenure of office, in some cases their scrutiny of tenure is not
adequate. While Art 95 of the constitution empowers the president to appoint Supreme

111
Court Judges, Art 98 provides for the appointment of additional judges for a period of not
more than two years, if the president thinks that the number of judges needs to be
increased for the time being. In practice, as discussed in chapter five, all judges of the
High Court Division are initially appointed as additional judges for a period of two years
and on the expiry of the terms of their office they are appointed as permanent judges
under Art 95. In some cases, after the expiry of the term of two years additional judges
are not appointed to permanent judicial officer. Consequently, the tenure of additional
judges is not consistent with the concept of security of judicial tenure.
In respect of the tenure of subordinate court judges, as discussed in chapter five, although the
Public Servants (Retirement) Act 1974 fixes a mandatory retirement age for subordinate
court judges, they hold office during the pleasure of the president under Art 134 of the
constitution. Moreover, under s 9(2) of the Public Servants (Retirement) Act 1974, after
completion of 25 years of service they may be forced to retire from office at any time before
attaining the mandatory retirement age, simply by reason of public interest.
Another drawback is that magistrates exercising judicial functions are not appointed full
time, and being public servants entrusted with the administrative functions, they exercise
judicial power in criminal cases as a subsidiary power. As public servants they are subject to
mandatory retirement age of 57 years, and they have no fixed term of office as magistrates.

In respect of judicial discipline, as discussed in chapter Six, there is no specific system of

making complaints against judges and it is almost impossible for a member of the general
public to make a complaint against a judge. In addition, the system of discipline is not
open to public scrutiny and there is no participation of members of the legal profession or
lay persons.

As discussed in chapter seven, the media plays a significant role in the context of judicial
independence and judicial accountability, but does not have adequate access to
information about the activities of the courts. In fact there is no effective system to
provide accurate and adequate information to the media. Another problem is the law of
contempt of court which is barrier to the role of the media. The Contempt of Court Act
1926 is a very old, vague and insufficient law. There is no specific provision regarding

112
liability for contempt, even contempt of court is not defined in the Act. In this respect
the courts powers depend on the vague and uncertain common law.

Although members of the legal profession play a crucial role in maintaining judicial
independence and ensuring judicial accountability, they do not have any formal role in
the affairs of the judiciary, including in the appointment and discipline of judges.

As mentioned in chapter three judicial corruption is a serious problem for the judiciary in
Bangladesh. In most cases that occur court self are involved in the corruption and they
receive bribes directly from the parties or through lawyers. In some cases, judges are
involved in corruption, but it is very difficult to prove their involvement. This problem
seriously undermines public confidence in the judiciary.

Delay in the disposal of cases, as mentioned in chapter three, is a significant weakness of

the justice system in Bangladesh. After filing a case nobody knows when it will be
disposed of. There are several causes for delay, including the role of court staff, lawyers
and judges, and the poor system of court management and case management. In criminal
cases, however, investigating officers may also be responsible for the delays.

9.4) SOLUTIONS:
This Assignment does not deal with all the weaknesses mentioned above. It concentrates on the
issues related to the criteria and mechanisms of judicial appointment, security of tenure, judicial
discipline, media scrutiny of judges and the role of the bar. Although the issues of the delay in
disposal of cases and corruption may impinge on judicial independence and accountability, they
are beyond the scope of this work. However, they are discussed as relevant aspects of chapters
six and seven.
In respect of the issues of appointment, tenure and discipline of judges, media scrutiny and the
scrutiny of judges by the bar the assignment identifies some solutions which can be considered to
strengthen judicial independence and to ensure judicial accountability in Bangladesh. The
solutions are outlined below.

113

As argued in chapter four, judges should be appointed on the basis of explicit and
publicly known criteria. In some countries, for example Canada and England, the criteria
for appointment of judges are explicitly defined and made public which may be
acceptable models.

Chapter four argues that judges should be appointed through a mechanism which is
transparent and open to public scrutiny. It further argues that an independent commission
consisting of members of the executive legislature, judiciary, legal profession and lay
persons may be useful to maintain public confidence in the judiciary. In this regard, South
African model of judicial service commission may be considered as an acceptable model.
The South African commission consists of judges, the Minister of justice, practicing and
academic lawyers, members of National Assembly including a substantial number of
opposition members, members of provincial parliaments, persons nominated by the
president of South Africa after consulting the leaders of all political parties represented in
National Assembly and in some cases the premier of province or premiers nominee.
Consequently, the South African commission is representative in composition and is not
under the exclusive control of any one branch of the government.

Chapter four mentions as well that the South African commission uses an open system of
making judicial appointments. After advertising judicial vacancies it selects a list of
meritorious candidates by interviews held in public.

In the context of security of tenure, as argued in chapter five, judges should have
permanent tenure until a mandatory age of retirement. It also argued that part-time,
temporary or acting judges may be appointed in special circumstances particularly to
reduce backlogs of cases or for solving a temporary shortage of judges, but such
appointments should not be made as a regular practice.

As argued in Chapter six, an independent commission should be invested with the power
of discipline or removal of judges. In this respect, the work of the judicial commission of
New South Wales and the commission on judicial performance of California is

114
considered. An important common feature of both commissions is that any person can
file a complaint against a judge. The Californian commission is invested with the power
of discipline or removal of judges whereas the New South Wales Commission is not
empowered to discipline judges; its Conduct Division can only report to the Governor.
Moreover, the composition of the Californian Commission is more representative than
that of the New South Wales Commission.
In this context, it is to be noted that the composition of the South African Commission is
more acceptable than the Californian Commission. However, in disciplining judges its
power is limited only to investigation and recommendation. It has been mentioned above
that the South African Commission may be an acceptable model in appointing judges. In
fact, for the appointment, promotion and discipline of judges an independent commission
should be established following the model of the South African Commission, but in
disciplining judges it should be invested with the power of discipline following the model
of the Californian Commission.

In respect of the media role in scrutinizing judges chapter seven argues that by providing
information to the public about the activities of the courts the media plays an important
role in maintaining public confidence in the judiciary. Therefore, for its own interest of
maintaining public confidence, the judiciary has a responsibility for providing accurate
and adequate information to the media. In this respect, the appointment of media liaison
or public information officers as in some jurisdictions of Australia and the United States
may be followed.

Chapters seven and eight reveal that the law of contempt of court is an important factor
affecting the roles of the media and bar in scrutinizing judges. It is argued that although
the law of contempt of court is useful to check dishonestly and unfairness in media
reporting or the improper role of the bar in scrutinizing judges, it should be used
sparingly. The judiciary should not use the contempt law to restrain the media or the bar
from responsible scrutiny or justified criticism of judges. In addition, in defining liability
for contempt of court there should not be any ambiguity in the law.

115
Given the above solutions this assignment recommends that proper measures should be
taken to strengthen judicial independence and to ensure judicial accountability in
Bangladesh. In summary, it is recommended that:

The criteria for appointment of judges should be made explicit and publicly
known and in this regard the criteria for appointment of judges in Canada and
England can be followed.

The mechanisms for judicial appointment should be transparent and open to

public scrutiny. In this respect the working procedure employed by the Judicial
Service Commission of South Africa can be followed.

For the appointment, promotion, transfer and discipline of judges at all levels an
independent an independent commission should be established with members
from the executive, legislature, judiciary, legal profession and lay persons. In this
respect, the models of the Judicial Service Commission of South Africa and the
Commission on Judicial performance of Californian can be followed.

Judicial vacancies should be advertised and all appointments should be made by

open competition as in South Africa.

Appointment of additional judges of the Supreme Court should not be made as a

regular practice. Additional judges may be appointed to meet urgent necessity,
particularly to reduce backlogs of cases or to solve temporary shortages of
judges.

The judiciary, particularly the subordinate criminal judiciary should be separated

from the executive branch of the government. For the sake of security of tenure
of magistrates of the subordinate criminal judiciary, full-time judicial magistrates
should be appointed to exercise judicial functions instead of investing magisterial
powers in public servants.

Provision should be made to ensure that until the attainment of the mandatory
retirement age subordinate judges should hold office during good behavior and

116
competence instead of the pleasure of the president and without being subject to
forced retirement.

Media liaison officers should be appointed to provide adequate information about

the judiciary to the media. In this respect, the models of Australia or United
States can be followed.

The law of contempt of court should be amended to specify clearly the liability
for contempt.

*****