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
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
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
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
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.