Freedom of judiciary: A collective responsibility

The autonomy of the judiciary plays a crucial role in ensuring the seamless functioning of a democratic system. Moreover, the future of democracy hinges upon the independence of the judiciary. In nations where democracy has taken root, the judiciary is typically granted the necessary independence to carry out its duties. Currently, the judicial system in Bangladesh can be considered relatively independent. Nevertheless, certain shortcomings persist in specific cases, necessitating collaborative efforts between the Law Ministry and the Supreme Court to address them.

In 2007, the Judiciary of Bangladesh underwent a legal process that resulted in its separation from the Executive. This significant development led to the establishment of the Supreme Court as an independent institution responsible for overseeing the judiciary. The primary objective behind this separation was to ensure that the judiciary operates without any political or external influences. Notably, in 1994, Masdar Hossain, who held the position of General Secretary of the District Judge and Judicial Association at the time, took the initiative to file a writ petition advocating for the separation of the judiciary from the executive branch.

The case, commonly referred to as the 'Masdar Hossain case', reached its final resolution in 1999 when it was decided by the Appellate Division of the Supreme Court. Subsequently, in 2007, the judiciary underwent desegregation as per the original directive, marking a significant milestone eight years after the verdict. Over the past 16 years, notable advancements have been made within the legal sphere and judiciary, which stands as a remarkable achievement for the government. This accomplishment serves as compelling evidence that the judiciary operates independently. By promptly addressing any raised complaints through the establishment of a committee comprising judges to conduct investigations and ensuring the accused judge is given an opportunity to defend themselves, both parties can be assured that dissatisfaction will be minimized.

The decision to repeal the Sixteenth Amendment of the Constitution, granting the Parliament the authority to dismiss High Court judges, will undergo a review hearing in the Supreme Court. The outcome of this ruling will greatly impact the level of autonomy enjoyed by the judiciary. Having served as the law minister for a duration of five years, I can attest to the numerous measures we have implemented to safeguard the independence of the judiciary. These initiatives have been instrumental in enabling the judiciary to function autonomously, and their positive effects continue to be experienced by the citizens of our nation.

I have consistently emphasized that the independence of the judiciary is paramount in ensuring a fair trial and establishing the rule of law within our country. However, it is important to acknowledge that this freedom cannot be solely guaranteed by the government. All stakeholders, including governments, judges, and lawyers, must actively contribute to safeguarding this fundamental principle. Above all, judges must possess competence and an unwavering commitment to combating injustice. This is of utmost importance in upholding justice for all.

Lawyers play a crucial role in upholding the principles of an independent and impartial judiciary. It is essential to prioritize the protection of innocent individuals, even if it means allowing a few criminals to escape justice. This fundamental concept embodies the essence of a fair legal system. Likewise, it is unethical for any lawyer to manipulate the truth and attempt to acquit a genuine criminal, especially one who has openly confessed their guilt. Such actions undermine the uprightness and independence of the judiciary.

In numerous instances, we witness undeniable evidence from investigations that clearly implicates an individual in a serious crime, such as a brazen murder committed in broad daylight. However, despite being aware of the facts, some lawyers choose to defend these criminals. They argue that, just as a doctor treats a patient regardless of their condition, a lawyer must represent any litigant who seeks their assistance. This argument is fundamentally flawed. Equating the treatment of a sick person with the deliberate attempt to shield a genuine criminal from punishment by presenting false information is both deceitful and unreasonable.

Lawyers are obligated to adhere to their own moral compass. It is expected that every lawyer possesses a clear understanding of what is morally right and wrong. However, it is unfortunate that not all lawyers demonstrate this beneficial knowledge consistently. Hence, it is essential for every lawyer to engage in legal battles with both integrity and wisdom. I firmly believe that the judicial system of Bangladesh can only progress and evolve through the collaborative effort of all stakeholders. The establishment of justice necessitates collective and concerted efforts. Therefore, it is crucial for everyone involved in the justice system, starting from the judges, to work harmoniously and cooperatively.

To ensure fairness and justice, it is imperative for the judiciary to remain united, from the lowest-ranking officials to the highest-ranking ones. Although the judiciary is currently constitutionally independent, the extent of its independence in reality is widely acknowledged. The constitution clearly defines the boundaries of the three branches of the state - executive, legislative, and judicial - and emphasizes the need for collaboration among them. By delineating the responsibilities of each branch, the constitution prevents any encroachment on their respective domains. The judicial system operates at its own pace, impervious to any attempts to impede its progress.

Regardless of the obstacles or setbacks that may arise, the judiciary's speed cannot be halted by individual or collective efforts. It is through our unified endeavors that we can ensure the judiciary's unstoppable momentum. It is not uncommon for the judiciary's interpretation of the law to face criticism. However, we must remember that judges are also human beings susceptible to error. It is crucial to bear in mind that the pristine symbol of justice, the white building, should never be tarnished by any actions from those associated with the judiciary. Only then can we truly achieve an independent judiciary and establish justice.

Author: Senior Advocate, Supreme Court of Bangladesh