Good governance and the judiciary
By Mainul Hosein
Our Constitution provides us with the best and the most binding guidelines for good governance and the importance of judiciary. But the guidelines are to be understood in the context of the purpose and principles involved.
The concept of good governance has been clarified by the UN's Commission on Human Rights and identified the key attributes of good governance as:
The formal government is only one of the actors in good governance. Under our Parliamentary system of government the Parliament is a key actor for ensuring transparency and accountability of the government essential for good governance.
When the elected opposition in the Parliament abstains from taking part in the proceedings of the Parliament, the institution of Parliament is crippled rendering it inconsequential as a constitutional arrangement of scrutinising government's activities.
The idea that the opposition can topple a government without election is most unhelpful for democracy and democratic good governance.
In the interest of free general election we have changed the Constitution to incorporate election time caretaker government. There is a constitutional provision against floor crossing in the Parliament. In the interest of good governance time has come for us to think how best to discourage boycotting of the Parliament and make the Parliament fully functional.
The ESCAP of the United Nations has emphasised for good governance, the participatory nature of the government and the rule of law. According to this definition, good governance has 8 major characteristics -"It is participatory, consensus oriented accountable, transparent, responsive, effective, efficient, equitable and inclusive and follows the rule of law."
By the rule of law ESCAP means fair legal frameworks, and impartial enforcement of laws by an independent judiciary and incorruptible police force.
In a participatory democracy it is essential that citizens have faith in their public institutions. A judiciary that is seen as fair and independent is a vital component in sustaining people's trust and confidence in the judiciary. It is through judiciary that people truly experience the working of a democracy.
What is so special about the role of judiciary in a democracy is that as protector of the democratic Constitution and the guardian of the people's fundamental rights its contribution to the establishment of good governance is immense and indispensable. It is through the jurisdiction of judicial review that the judiciary checks abuses of power committed by government functionaries. Nothing which is violative of the Constitution or fundamental rights, is law for the courts to implement. The assurances of fundamental human rights are the assurances of good governance for the good of the peop!e. The judiciary is the ultimate protector of such assurances.
The rule of law requires that the existing laws should be reviewed in the light of the changed situation to make the laws compatible with justice. The present government has introduced some new laws and amended some existing laws. I shall make short observations on some such laws to put in perspective that changes in the "legal frameworks" are essential for good governance.
The much-repeated principle that justice delayed is justice denied must be a constant consideration for disposal of the court cases. At the same time it is also true that justice hurried is justice buried. The speedy trial tribunal law passed by this government can be accepted as an emergency measure. For the time being people are happy with the performance of these tribunals.
When the crimes are rising and security of life is a matter of major national concern there is justification for passing an extraordinary law. But the pick and choose method used for trial of cases by these tribunals is not defensible for the good of its long-term consequences. The offence triable by speedy trial tribunals should have been a clearly defined few.
The Artharin Adalat Ain has been amended to make the same less harsh for the borrowers from the banks. Particularly noteworthy is the provision that not more than twice the principal amount of loan can be realised. But much needed reforms in banking laws are yet to come for dealing with the default culture squarely so that borrowers are not subjected to bear exorbitant interests that include compound and penal interests. When a special law has been passed to contain the default culture of the borrowers, another law should also be passed to end the corruption culture in the banking sector. The banks cannot be allowed to make huge profits at any cost to their clients. I also consider that the Company Court of the High Court Division would have been in a better position to exercise the onerous power of the artharin adalats. After ail, these adalats are dealing with claims involving crores of taka with power to sell expensive properties.
The whole purpose of good governance being just and equitable development for the people, I feel that our labour laws should also be reviewed and reformed. It is not enough to protect the interest of workers unless the laws are at the same time investment friendly. The labour court has the power of harassing even the topmost executive of a company by drawing criminal proceedings. A fresh look at the labour laws is necessary to help good management while encouraging responsible trade unionism.
After all the delays, the government is now going to finally effect separation of the judiciary from the executive. Such a step will be a great leap forward towards achieving full independence for the judiciary as affirmed by Articles 94 and 116A of the Constitution. The independence of the judiciary is not everything for the rule of law. There has to be an independent prosecution authority to examine whether or not prima facie evidence exists for prosecuting a person named in the FIR. It is our pressing need to have independent prosecution cells for saving the people and the courts from false and vexatious criminal proceedings.
We cannot also over emphasise the importance of incorruptible police for the rule of law. Our easy way of starting criminal cases is no help for keeping police above corruption.
The government has proposed an independent judicial service commission for the appointment of judges in the lower judiciary. We must also think of making appointment of judges of the Supreme Court transparent and free from political favouritism. The present system of consultation with the Chief Justice has proved highly controversial and grossly inadequate. Both the major political parties are to be blamed for the scandals in the appointment of judges of the Supreme Court. Political favouritism of the successive governments has contributed to lowering the quality and efficiency of the judges. The BNP government should have done better for improving people's confidence in the judiciary.
Like in the United States and many other countries we must also have an effective disciplinary authority over the misconduct of the judges both in the lower judiciary and the Supreme Court. It is important that the judges should devise their own disciplinary framework. The allegation of rampant corruption in the lower judiciary is very disturbing and yet we do not find the judges themselves doing anything to redress the grievance.
We have been fighting for the independence of the judiciary not to make the judges indulge in corruption with impunity. Corruption in the judiciary makes mockery of the whole justice system so much needed for good governance.
The general lack of political will to fight corruption in government is evident from the fact that after more than 30 years of independence only now the Independent Anti-Corruption Commission is being set up. It is a bold step on the part of the present government. Unhindered corruption has the vicious effect of eroding from within all the efforts at building the democratic institutions of good governance.
Let us all hope that the Independent Anti-Corruption Commission will prove to be sufficiently independent and bold to punish corruption in high places of the government. We must eliminate corruption to help the institutions of good governance function in the way these are intended to.
Let me conclude with a note of caution:- Where good governance fails democracy does not also survive and where democracy is absent politicians do not rule.
(Barrister Mainul Hosein, former President of Bangladesh Supreme Court Bar Association and Chairman Editorial Boards of the Daily Ittefaq and the New Nation, Presented this keynote paper at the workshop organised by the Ministry of Law and Parliamentary Affairs on 14th October 2004 at the Training Institution of Judges at Dhaka)
© Copyright 2003 by The New Nation