Judicial Freedom in Bangladesh

Bangladesh, whose military leaders took over the country last January and threw hundreds of squabbling politicians into jail on corruption charges, has created the mechanism for an independent judiciary, removing it from control of the administration for the first time in the country’s short, faction-plagued history.

It is a curiously positive development for a government set up by the military, and civil rights and reform organizations welcomed the move by the interim government headed by Fakhruddin Ahmed, a former World Bank official who made the announcement last week. To some extent the development allays growing worries in Dhaka, the country’s capital, over when democracy will return to the country. The interim government has promised elections by December 2008.

Barrister Mainul Hosein, the Adviser for Law, Justice and Parliamentary Affairs to the caretaker government, said in a speech, "We (the government) have separated the judiciary from the interference of the executive not as a favour to the judges, but to assign them with the heavy responsibility of upholding justice and contributing to good governance as contemplated by the Constitution."

However, Amnesty International continues to express a broader concern about human rights, most recently over the arrest of Jahangir Alam Akash, the local head of two NGOs, the Task Force against Torture and the Bangladesh Institute of Human Rights and a journalist with the independent TV station CBS News. Akash was arrested on rape charges, but Amnesty International in a press release quoted family members and friends as saying the charges are false, politically motivated and a pretext to detain him for opposing human rights violations.

The Bangladesh military’s seizure of power was initially applauded by many relieved citizens who hoped it would end the internecine squabbling between the country’s two strong political women, Sheikh Hasina Wajed, and her bitter rival, Begum Khaleda Zia. However, as the interim government appointed by the military has worn on, relief has begun to turn to dismay both inside and outside Bangladesh that the takeover has spawned widespread human rights violations including scores of extrajudicial killings and mass arrests.

Nonetheless, the decision to grant independence to the courts, for instance, stands in dramatic contrast to two other Asian countries. In Pakistan, against which Bangladesh revolted to pave the way for its creation in 1971, President General Pervez Musharraf declared martial law earlier this week and ousted Chief Justice Iftikhar Muhammad Chaudhry. Malaysia is in the grip of a growing standoff between the government of Prime Minister Abdullah Ahmad Badawi and the country’s nine sultans over independence of the judiciary. The publication of videotape of a politically connected lawyer discussing judicial appointments of malleable judges with the then chief judge of the Federal Court has contributed to the scandal.

Inaugurating the Dhaka District Judicial Magistracy and Dhaka Metropolitan Magistracy, Fakhruddin Ahmed told the crowd, "The judiciary is fully independent of the executive from today and from now the courts and the judges will establish rule of law without the interference of the executives."

The ceremony coincided with celebrations in 64 district judicial magistracies and three metropolitan magistracies of Bangladesh. The government has created nearly 4,300 new judicial magistracy posts, Ahmed said, to facilitate an independent judiciary.

The change can’t come too soon for a desperately overburdened system. There are 4.85 million cases pending in magistrates’ courts across Bangladesh, which has a population of 140 million people. The real test, though, for an independent judiciary will lie in how it deals with the trials of some very senior political leaders, including the two former prime ministers, Begum Khaleda and Sheikh Hasina, who are presently serving jail terms for corruption and misuse of power during their respective reigns.

"The separation of the judiciary should be considered a major milestone in Bangladesh's judicial history despite the fact that it was done when there is no political (elected) government," said Haroon Habib, a Dhaka-based journalist and former independence activist.

In fact, the two previous democratically elected governments didn’t try. Although the Supreme Court of Bangladesh ruled to separate the judiciary from the executive branch in 1999, neither Sheikh Hasina’s Awami League government (1996-2001) nor Begum Khaleda Zia’s Bangladesh Nationalist Party which followed it (2001-2006) complied.

The immediate past government, led by the Awami League, openly interfered with the judiciary, says a Dhaka-based social activist who told Asia Sentinel that executive magistrates were pressured into granting bail and passing other orders for the ruling party. The magistracy, he said, was almost synonymous with corruption.

Bangladesh has two sets of magistrates, judicial and executive. According to the amended Code of Criminal Procedure, the judicial magistrates will run the courts. They will be appointed and supervised by the Supreme Court.

Executive magistrates, including the previously powerful deputy commissioners, have been stripped of judicial powers and will exercise only executive power, which removes a burden from the system. Most of the executive magistrates lacked credible knowledge of the law despite their power to deliver justice.

As Bangladesh has no provinces (and thus no provincial chief ministers demanding a share of power), the deputy commissioners locally wielded the most clout after the prime minister. Often overburdened, they had to perform their duties in a complex structure in which their primary responsibilities were administration and revenue collection, both of which provide ample opportunity for graft.

Indeed, some officials are unhappy with the separation of powers, with one magistrate declaring in a public meeting that the government had humiliated him by scrapping his judicial power and calling vainly on his colleagues to strike.