‘Legislative reforms needed to limit executive’s influence over judicial decisions’

Judicial independence is crucial for upholding the rule of law and ensuring a fair and impartial justice system. The doctrine of separation of powers divides government responsibilities among the executive, legislature, and judiciary to prevent concentration of power and safeguard individual liberties. An independent judiciary is fundamental to this framework, as it ensures that legal decisions are made free from external pressures, particularly political interference.

Constitutional guarantees play a pivotal role in this regard. For instance, the Bangladesh Constitution provides a framework for judicial independence by enshrining the separation of powers and protecting judges from undue influence. International human rights standards, such as those outlined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, also emphasise the importance of an independent judiciary for ensuring justice and human rights protection.

Some practical measures to ensure judicial independence are as follows:

1. The judiciary should have control over its budget to prevent financial constraints from affecting its independence. This could involve legislative reforms to ensure that the judiciary’s budget is separate from the executive’s control and allocated transparently.
2. Protecting judges from threats and harassment is essential for maintaining their independence. This includes providing physical security and ensuring that judges can perform their duties without fear of retaliation.
3. Establishing transparent and merit-based processes for judicial appointments and removals can prevent political interference. This might involve creating an independent judicial commission responsible for these processes.
4. Legal and institutional measures should be implemented to shield the judiciary from political pressures. This includes legislative reforms to limit the executive’s influence over judicial decisions and ensure that judicial rulings are based on legal principles rather than political considerations.
5. Educating the public about the importance of judicial independence can foster a culture of respect for the judiciary. Awareness campaigns can highlight how judicial independence benefits society by ensuring fair and impartial justice.

Is the colonial legacy of the legal system, influenced by British rule, the root cause of executive interference, leading to oppressive and exploitative bureaucratic systems in both the colonial and postcolonial periods? Has our legal system deteriorated more significantly compared to the colonial era?

The British colonial legal system undoubtedly shaped the legal framework in many postcolonial countries, including Bangladesh. Colonial rule introduced legal structures and administrative practices that often served the interests of the colonisers, which can still influence contemporary systems. However, while this legacy may contribute to certain issues, it is not the sole cause of the current problems.

Postcolonial factors, such as political instability, corruption and inadequate reforms, have played significant roles in shaping the legal system. These factors often exacerbate issues of executive interference and bureaucratic inefficiencies. For instance, political instability and lack of institutional reform can perpetuate systems that are unresponsive to the needs of the people.

Comparing the colonial and postcolonial legal systems reveals both improvements and areas of decline. During the colonial era, legal structures were often more rigid and exploitative, but postcolonial reforms aimed to address these issues. However, some postcolonial systems have struggled with implementing effective reforms and maintaining rule of law standards. Assessing specific problems in the current system, such as corruption and inefficiencies, can help develop targeted solutions to address these issues.

Why have judges become increasingly politicised in favour of the government, and why has the government relied on the judiciary to resolve its issues rather than addressing them through political means in recent years?

Several factors contribute to the increasing politicisation of judges. Career aspirations and fear of reprisals can lead judges to align with government interests. Inadequate protection for judges also makes them vulnerable to external pressures. This politicisation can compromise the impartiality of judicial decisions and undermine public trust in the judiciary.

Governments may rely on the judiciary to resolve issues to avoid direct political accountability. This reliance can be a strategic move to shift blame or suppress dissent. By using the judiciary to address contentious issues, the government may seek to avoid taking direct responsibility for unpopular decisions or policies.

The judiciary in Bangladesh is heavily influenced by the legislature, and the executive exerts overwhelming pressure on it. How can we ensure a balanced relationship among the executive, judiciary and legislature to foster a functioning democracy?

A balanced relationship among the executive, judiciary and legislature is essential for a functioning democracy. Mechanisms such as judicial review allow the judiciary to assess the constitutionality of legislative and executive actions, while legislative oversight ensures that the executive branch is held accountable. Establishing robust systems for each branch to check the others helps prevent the abuse of power.

Some institutional reforms in this regard are needed: i) enhancing the capacity of the legislature to perform its oversight role effectively can improve the balance of power. This includes providing adequate resources and training for legislators; ii) building public trust through transparency, accountability, and effective communication can support judicial independence; and iii) clear delineation of authority among the branches can prevent encroachments and conflicts. Reforms should establish clear limits on the powers of each branch and mechanisms to resolve disputes.

How can citizens access the justice guaranteed by the constitution, particularly regarding human rights?

Challenges such as poverty, illiteracy, and lack of awareness often hinder citizens’ access to justice. To address these issues, measures should be taken to improve legal aid services, simplify legal procedures, and empower marginalised groups. Legal aid programmes can provide the necessary support to those who cannot afford legal representation, while simplifying procedures can make the legal system more accessible.

The judiciary plays a critical role in protecting human rights by enforcing judgments and providing remedies to victims. Strengthening mechanisms for human rights enforcement, such as ensuring the effective implementation of court decisions and providing support services to victims, is essential for upholding human rights.

What are the most pressing issues regarding the restoration of judicial independence that require urgent reform? How can meaningful and lasting reforms be implemented to make sure that judicial independence is not easily undermined by future amendments?

Key challenges to judicial independence include political interference, inadequate resources, corruption, and delays in justice delivery. These issues erode public confidence in the judiciary and hinder its effectiveness. To solve this, i) implementing mechanisms for holding judges accountable for misconduct while protecting their independence can improve the system’s integrity; ii) ensuring transparency in the appointment and promotion of judges can help prevent political influence and promote merit-based selection; iii) allocating sufficient resources to the judiciary can ensure that it can function effectively and independently; iv) campaigns to educate the public about the importance of judicial independence can foster support for reforms and reinforce the judiciary’s role, and v) strengthening constitutional protections for judicial independence and adopting international best practices can provide lasting safeguards against future encroachments.

What should be the appropriate method for selecting judges, and how can the independence of the lower courts be maintained?

The method of selecting judges can significantly impact judicial independence. Merit-based systems, where judges are chosen based on qualifications and experience, tend to support impartiality. Electoral or politically influenced systems may compromise independence. A hybrid approach that incorporates both merit-based selection and some degree of public input can ensure both quality and accountability.

Lower courts face challenges such as resource limitations, political pressure, and interference from higher courts. To strengthen lower court independence, measures such as providing adequate training, resources, and protections are crucial. Ensuring that lower courts are shielded from political pressures and interference can help maintain their impartiality and effectiveness.

Given that the current interim government emerged from a popular uprising, do you see the possibility of forming a new constituent assembly to draft or amend the constitution? Could such a movement address the ongoing democratic crisis, particularly the imbalance among the executive, judiciary and legislature?

Forming a new constituent assembly could offer a comprehensive approach to addressing the democratic crisis and restoring balance among the executive, judiciary and legislature. Considering Bangladesh’s current developmental trajectory, a comprehensive overhaul or strategic amendments to the constitution are imperative to foster economic growth and holistic development at the grassroots level. This aligns with global best practices. We must recognise the constitution is a dynamic document—it must evolve to accommodate societal shifts and emerging challenges. However, this process involves significant considerations such as public opinion, political feasibility and potential risks. A new constitution could address imbalances and promote democratic principles, but it may also face challenges in implementation and acceptance. In terms of the current context of Bangladesh, while questions persist about the appropriate forum and timing for such a significant undertaking, history underscores the need for adaptability. Even if not feasible for the current interim government, the subsequent elected administration should prioritise a comprehensive review of the constitution.

Other options for constitutional reform include amendments or judicial review. Amendments can be more flexible and responsive to specific issues, while judicial review can address constitutional concerns through the existing framework. Each approach has its advantages and limitations, and the choice depends on the specific needs and context of the democratic crisis.

In summary, while a constituent assembly could provide a fresh start, incremental reforms and targeted amendments might also offer practical pathways to addressing constitutional and democratic imbalances.

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