In our country, one of the very first priorities should be enhancing the quality of justice that is at the core of human existence and welfare of society. It is the fundamental goal of all societies in the world. We, as a nation, were deprived of justice from our colonial rulers since even after Partition we were ruled for about 24 years by Pakistan. We were deprived of human rights, human values, rule of law, and right to public service, right to trade and business, and most certainly democracy—all of which are the foundation of a civilized society. We were deprived of our proper share of revenue for the development of our roads, schools and colleges, and setting up industries even though a major portion of the entire country’s revenue was earned by our province. We were treated as a colony by a minority.
But immediately after independence, the judiciary was neglected by all the successive governments in power although the judiciary played a vital role in maintaining rule of law within its limited powers and resources. If we compare with other Organs of State, the ratio of funds provided by the governments to the judiciary used to fall to the bottom of the list. The judiciary contributed remarkable results to the state and its citizenry and was the only institution in which people had trust. Access to fair, inexpensive, speedy and substantive justice is a basic universal human right. To ensure compliance of this basic human right, judicial reforms in various countries have been made in the last few decades. But Bangladesh remained an exception. Universally it is accepted and acknowledged that for proper functioning of democracy and rule of law it is imperative to carry out judicial reforms from time to time.
Even a developed country like the United Kingdom made several changes in its judiciary. After the passing of the Constitutional Reforms Act 2005, the latest major changes have been described as the most significant since the Magna Carta of 1215. This Act establishes the Lord Chief Justice as President of the courts of England and Wales and Head of the Judiciary. The House of Lords was substituted by Supreme Court resulting in complete independence of the judiciary. In its 1000 years of judicial history, the judiciary for the first time was officially recognized as a fully independent organ of the state having its own independent system, staffs, budget and building.
Similarly, reforms were made in China, Brazil and some Latin American countries while the first two countries named also maintained a tremendous pace of economic development. In China the State Council of the People’s Republic released a White Paper on October 9, 2012 on “Judicial Reform in China.” This paper highlighted the changes undertaken over the last decade and referred to the main objectives of such reforms aiming to safeguard justice and focusing on optimizing the allocation of judicial functions and power, enhancing protection of human rights and judicial capacity, practicing the principle of “judicature for the people” and finally digitization of the judiciary.
Brazil is a fast-developing economy with a legal system in the civil law tradition. It did not follow the doctrine of stare decisis. But after an amendment to the Constitution in 2004, the Supreme Court began to follow the tradition of stare decisis with a view to minimizing the docket size and to preserve the people’s perception and respect toward the judiciary. A bill of law for the new Code of Civil Procedure has almost been finalized with the aim of minimizing the time for the final disposal of litigations. If it is implemented, it would usher in a revolutionary change in procedural law in Brazil. Similarly, Cambodia, Ecuador, Chile, Mexico, Peru, Guatemala and Panama have carried out significant judicial reforms.
Some Asian countries like India and Sri Lanka have already implemented the digitization process and their judiciary can now compete with developed countries like the UK, US, Canada and Australia. Despite the modernization of the judiciary long before the US, Australia, Canada and South Africa have carried out judicial reforms a decade ago. When I visited China and Russia, I could not believe my eyes when I saw the digitization process had reached the remotest corners of these two big countries. My Russian counterpart showed me by pushing a button the judicial work of a District Court in progress about 7,000 miles away in Siberia, talked with the president of the court and introduced me!
In the Supreme People’s Court of the People’s Republic of China, electronic monitors have been installed on the walls of a big room. On these monitors all judicial activities throughout the county are being seen. The entire process—from filing of a case up to the final stage—is completed under the digitization process. Witnesses are examined in video conferences in both China and Russia. I noticed an urgency in the mind of the judicial hierarchy and the Executive to modernize the judicial system. According to them, if the judicial process is not developed in comparison with the development of the country, the economic progress would be hampered. Because, according to them, foreign investors are always interested in their investments and the expeditious return on their investment if any litigation cropped up.
According to the Chinese authority, they were inviting chief justices of different nations of the world as well as other judges by arranging seminars for their understanding of advances made in other counties. I was invited twice as Chief Justice of Bangladesh and the invitation was made by the highest authority of China. I attended one seminar and I was given the opportunity of giving the opening and valedictory speeches despite the presence of other chief justices. In the next seminar, I sent Foez Siddiqui as the representative of the Chief Justice of Bangladesh. After the seminar Foez Siddqui told me that a big electronic portrait of mine was displayed at the venue on the assumption that I would attend the seminar.
In Bangladesh a huge number of cases are pending in the lower courts and in the Supreme Court. The litigants are deprived of justice due to lengthy procedure. It is due to many reasons: (i) obsolete laws, (ii) shortage of judges, (iii) shortage of courtrooms, (iv) no checks and balances in monitoring the judges’ performance, (v) repeatedly seeking additional time by the lawyers while the courts are liberal in granting them time, and (vi) long holidays enjoyed by the judges of the Supreme Court. If we want to reduce the docket in the High Court Division, there is no alternative other than reducing the number of holidays drastically. It was not that after becoming Chief Justice I wanted to reduce holidays for showing “revolutionary” change. When I was in the High Court Division, Syed Mudassir Hossain was the Chief Justice, and I wrote a letter to all the judges for consideration in a Full Court meeting for reducing holidays on the ground that a large number of cases were pending and we could not deal with them; that the litigants were being deprived of the fruits of their litigation during their lifetime and that we were having long holidays which made our work to suffer. Except Syed Mahmud Hossain, none supported me. The issue was dropped without discussion.
The system of long holidays was introduced by the British judges in the early 19th century when the communication between India and England was by sea from Bombay. It took 21 days to travel by sea and, therefore, during the autumn they took long holidays to visit their relatives. The number of cases in those days in the superior court was low and, therefore, there was no backlog of cases. Now we have millions of cases. We are afforded with maximum facilities including emoluments in comparison with other public servants at the cost of the tax payers. It is against our conscience to enjoy holidays of about six months a year. In South Korea, the judges of the Supreme Court enjoy only 21 days a year. Other Commonwealth countries drastically reduced their holidays. Our very mode of calculation of holidays is faulty. For instance, if we enjoy 15 days holiday in a month, we exclude weekly holidays; if we take vacation for the entire month of June, we calculate it as 22 days by excluding weekly holidays. This calculation is not right. The weekly holidays should not be excluded in calculating days off. But in case of taking leave, weekly holidays are included.
Another interesting thing is, we exclude government holidays if we count holidays during festivities. Yet another error is that senior judges start calculating holidays from the month of November for the next year keeping their judgments pending for months and even sometimes years together. In their computation they decide for how many days they would enjoy vacation the next year. This is totally unheard of in any country. The normal procedure is to decide how many days judges would work in a year. It is a prevailing system in the US, UK, India and other countries. We are obviously an exception. Therefore, in the Full Court meeting in 2015, I placed a list of 201 working days for 2016.
All the senior judges headed by Md. Abdul Wahhab Miah charged me and wanted to know why I had fixed the holidays without discussing with them. I told them, it is the practice prevailing everywhere. I even entreated them to reduce at least 10 days from the holidays. Abdul Wahhab Miah, Nazmun Ara Sultana, Muhammad Iman Ali and some other senior judges of the High Court Division in a concerted manner insulted me explicitly. My officers were shocked and commented the judges were not even courteous while discussing with the Chief Justice. I told them that I was not hurt with their behavior because I wanted to reduce vacation time not for my personal gain but for the benefit of the judiciary. Hence, I did not mind at all, but rather I felt pity for them. They acted against their conscience ignoring their past. They forgot that they became judges and after confirmation they forgot the purpose for which they were appointed.
I noticed that some judges of the High Court Division did not sit in court at the proper time and some of the judges even did not sit in the afternoon session after recess. I told them to sit and rise from the court by adhering to the schedule because if they do not maintain the court’s time, how could we compel the judges of the lower judiciary to maintain court timings. The litigants’ perception of judges would suffer. They did not respond to my request. In a Full Court meeting, I again raised the issue and requested them to maintain the court’s time. I made surprise visits at 2:30 PM and found that most of the judges did not sit in court. I noticed that some of the judges came to court after 11:00 AM although court hour starts at 10:30 AM.
Finding no other alternative, I directed the Registrar General to close the Supreme Court’s main gates at 10:30 AM. Some judges took exception to my new step, but I did not listen to their objection. Lawyers also informed me that due to closure of the main gate they were facing difficulties in coming in. I told them that I took the action for a limited period for compelling the judges to come in time and that they have two other alternative access roads. It can be perceived that global issues are becoming increasingly prominent because of globalization and liberalism. In the world of business and investment pressure on the governments to reform comes from both local and foreign interests. Therefore, it is time to make urgent judicial and legal reforms in our country not only to clear the backlog of cases but also to ensure that all cases are decided promptly.
The main causes for delay in disposing of cases besides the above are:
- inadequate infrastructure in the subordinate courts;
- inadequate supporting staff;
- non-availability of modern technology, such as computer and digitization; (d) inadequate use of technology for classification of cases;
- inadequate use of modern technology in identifying the infrastructure or dead cases;
- unavailability of video recording and video conferencing facilities;
- inadequate use of case management system;
- delay in filling up existing vacancies;
- frequent adjournment of cases
- inadequacy of training of the judges.
Besides, it is not possible with the existing manpower to dispose of the pending cases even in 50 years from now even if no new case is added. So, it is high time to employ time tested alternative methods of dispute resolution, such as, arbitration, conciliation and mediation with vigor by amending the laws. Government is the biggest litigant in Bangladesh. It must ensure that litigation may be initiated, or appeals may be filed only in genuine cases. Nowadays a practice has developed that in government, semi-government and autonomous bodies’ cases, even after losing in the apex court, review petitions are filed after a long delay. I confronted the lawyers on these issues, like, review petitions being filed after losing the case and belatedly. Their answer was simple: The authorities wanted a review for their own defense in case they are charged for not filing review petitions. The departmental heads and executives must appreciate the fact that they have been given those positions with responsibilities. They were not chosen for the job to cause unnecessary costs to the government and adding to the burden of the courts.
Our vision should be a modern judiciary aligned with the standard in the neighboring countries. An efficient legal and judicial system delivers quick and quality justice that reinforces the confidence of people in the rule of law. It facilitates investment and production of wealth, enables better distribution of justice, promotes basic human rights and enhances accountability and democratic government. However, at the same time the Executive should look toward better training of the judges of the higher judiciary. At present the higher judiciary does not possess any judicial academy for training of judges. As Chief Justice, I wrote a letter to the Prime Minister for allocation of land suitable for the establishment of a judicial academy for the training purposes of members of the higher judiciary. As I
did not get any response, I personally requested the Prime Minister to allot a piece of land measuring not less than 25 acres. The Prime Minister was surprised on hearing the size of the land asked for. I told her that Nepal, a mountainous state, and Jammu and Kashmir, another hilly provincial state of India, own judicial academies on over 40 acres of land. I requested her to allot such an area outside Dhaka City, perhaps in Keraniganj, Savar or Gazipur.
For a long time, it was held that there was no need for special education or training for members of the judiciary. Initially it was believed since they had already studied law in different universities and had subsequently carried on with their legal practice it was more than enough for them to the judges. This previous trend has changed remarkably. In the last half century, the earlier belief changed with the French establishing one of the earliest judicial academies. The United States of America followed them. Now almost all countries of the world, including India, have underscored the importance of creating training and development programs for the judiciary. If we seriously need to look at judicial reforms, we need to look at the context of knowledge creation within the judiciary; its importance to understand the changing dimensions of law and justice; and to empower the judges to be able to engage with contemporary issues relating to law and justice. The University College in London has established UCL Judicial Institute, a research center that brings to the forefront the importance of research and capacity building for the judicial process. This is inextricably connected to training and development that are needed for the members of the
judiciary. The United States in collaboration with Duke University Law School established an Institute of Judicial Studies. Law is a dynamic discipline and if this dynamism of the law must be brought into the judicial system it is essential that judicial education is imparted by establishing judicial academies.
The continuing education plan for Ontario Court Judges, the National Judicial Institute and Judicial Education Program is to expand the range of professional opportunities available for new and experienced judges. These education plans are based on the three objectives of maintaining and developing professional competence, maintaining and developing social awareness, and encouraging personal growth. Collectively, the development of this structured judicial education programs helped1 promote enhanced judicial decision making and provided greater consistency in continuing the education, increased resources, provided support and training opportunities for judges from all backgrounds.
When I was practicing in the district court, I noticed that District and Sessions Judges were taking up miscellaneous petitions, that is, bail petitions, criminal and civil motions in the morning session and after the recess they regularly sat in court and held trials of complicated session’s cases and heard appeals. For the last ten to twelve years, the District and Sessions Judges seldom rise after recesses, which I noticed in course of my inspections in different district courts. I advised them to keep enough cases for covering the entire day transacting judicial business. My advice bore no result, because whatever report I submitted were not addressed by the Chief Justices and the Ministry of Law. So, after tackling the pressure of lawyers to dispose of urgent matters pending for a long time, I decided to visit the district courts randomly.
This was for two reasons: (1) after the separation of the Magistracy in 2007, the construction of Magistracy buildings was very slow and in some districts site selection was not finalized. The court buildings which were undertaken for construction were delayed for years together. This was also due to lack of monitoring by the Ministry of Law and the corruption of the contractors in collusion with the engineers. As a result, the judicial officers were sharing courts and chambers, sometimes three judicial officers shared one court. It was very dismal to observe that a female judicial officer had to share a chamber with a male judicial officer in some stations, and (2) Compelling the judicial officers to utilize the time allocated for judicial works and to give priority to the old cases.
I requested the District Magistrates to provide two or three rooms from their offices, which were earlier used as criminal courts by the Executive Magistrates. Some District Magistrates honored my request, some of them expressed their inability by enumerating excuses. I held judicial conferences and, in such conferences, Public Prosecutors, Government Pleaders, Presidents and Secretaries of the Bar, Executive Engineers, Civil Surgeons, Superintendents of Police, sometimes, BGB Sector Commanders, RAB Commanders, District Magistrates, Additional Districts Magistrates, all judges and judicial magistrates attended. I heard the problems being faced by the judiciary and advised them by providing guidelines. Sometimes the police, the district magistrates and others wanted to know of the solutions to their problems and whenever possible I solved them on the spot. Judicial officers were confused about inconsistency in judgments. I explained to them the correct legal positions.
Moreover, there were many defects in medical evidence being filed in criminal cases. I directed the Civil Surgeons to advise the doctors who issue autopsy reports and medical certificates promptly pointing out the defects which in most cases related to elopement of young girls. The doctors were not issuing proper medical reports of age since they did not follow the minimum procedure while ascertaining the age by ossification tests. While issuing medical certificates of grievous injuries, they submitted reports on guesswork on superficial examination of wounds without ascertaining the injury by X-ray. Sometimes they even submitted faulty reports as regard cause of injury by sharp pointed or blunt weapons.
The BGB while patrolling border and remote areas often seized smuggled goods, but they do not follow the procedures provided in Sections 100-103 of the Code of Criminal Procedure. I explained the defects and told them that due to their lack of proper preparation of seizure lists, the smugglers were getting the benefit of doubt. The police officers lack knowledge in Evidence Act and all the time we found faulty investigation reports in sensational cases. I noticed in several cases that though the accused were convicted by the trial court and affirmed by the High Court Division, I was compelled to acquit the convict due to defect in collection of legal evidence to connect the accused to the case and because of delayed examination of witnesses by the investigation officers. I pointed out these defects to the police officers and advised them to direct the investigation officers to rectify those defects. Additional District Magistrates are empowered to deal with proceedings under sections 107, 133, 144, 145 of the Code of Criminal Procedure and mobile courts. Most of the proceedings were found defective. I made the Executive Magistrates conscious of the defects and asked them to rectify those. I explained the position in law. This is the reason the judicial conferences used to take three to four hours. I enjoyed those conferences because in those conferences I gathered practical knowledge of the field officers who frequently face problems and I clarified their defects. After the conferences the officers often expressed their satisfaction and said that they benefitted very much from the explanations and guidance given to them which they had never experienced previously.
In the meetings, I directed the District Magistrates and Executive Engineers to expedite the construction and selection of the sites of the court buildings. This resulted in momentum gained in the progress of construction work. In some districts, there was unusual delay in fixing the date for inaugurating the buildings, such as, in Chittagong, Moulvibazar, Habiganj and some other districts. As I declared the opening of the court buildings, the authority had to complete the works by compulsion.
On one occasion, I attended a conference in Moulvibazar district and when I was returning at 1:00 AM, I noticed that the workers were working at that time also. I was very shocked and admonished the Chief Judicial Magistrate and the Executive Engineer for exerting such pressure on the workers. They frankly replied that as I had fixed the date for opening the complex, they had no alternative but to complete the work quickly. In one district, possibly Jessore, the work was closed for about two years. On inquiry I came to know that the contractor had left the work on the plea of his inability to complete the work at the rate quoted by him because in the meantime the price of construction materials had gone up. I told the local authority to forfeit his security money and take legal action against him. Later I came to know that due to my threats the work was completed within six months.
In Moulvibazar the project was approved in the first phase, but due to delay in the site selection work on the site could not be started. District Magistrate Mukhlesur Rahman informed me that unless I intervened the work would not be started even within a decade. He came to meet me in my village home at about 11:00 PM. Normally I did not use the Circuit House whenever I had any program either official or unofficial in Moulvibazar, despite scarcity of space at my home. As I remember, I passed one or two nights— due to the fact that the programs continued till midnight—in the Circuit House during my 18 years in the highest court. When the District Magistrate came to see me, I was performing the functions of the Chief Justice. I told the District Magistrate that on the following day at 10:00 AM I would lay the foundation of the building, if the political parties supported me. The District Magistrate took ten minutes time and spoke with the leaders of the political parties and the mayor of the City Corporation. The District Magistrate subsequently reported that none of the leaders would oppose whatever decision I made.
Accordingly, I advised him to arrange a meeting at the Circuit House at 9:00 AM and fixed the time for laying the foundation at 10:00 AM. I also advised him to convey the message to the Executive Engineer for arranging necessary materials. It may be recalled that the present magistracy building is owned by the court, but the space was not enough. There was a khas land toward the northern side of the existing building but due to political pressure that khas land was allotted in favor of an organization of the government and the selection of the site of the magistracy building was selected about three kilometers away from the present building, over which three suits were filed, and injunctions were issued. The lawyers were not agreeable to construct the magistracy building at a distant place. In the meeting I sought opinion from leaders of all political parties and lawyers. They gave me full authority to decide and promised that my decisions would be accepted by them.
So, I told them I would lay the foundation of the magistracy building at the present site and decide to hand over the adjacent land by cancelling the earlier allotment in favor of the Shishu Academy. I also advised the District Magistrate to take immediate measures in this regard. The District Magistrate told the meeting he would allot the land in favor of the magistracy building within next seven days. I expressed my desire to lay the foundation at that time. At this time some of them told me about the injunction about which I knew already. They were eager to withdraw the suits. Within 45 minutes, we concluded the meeting and marched toward the site on foot and laid the foundation stone. Thereafter, I came to know that the District Magistrate had allotted more land for the magistracy building than the lawyers had demand. Now one of the best judicial buildings has been established at that site.
One of the problems I noticed regarding delay in construction was lack of monitoring by the Ministry of Law, noncooperation of some of the District Magistrates in selecting the site, and corruption in the construction work. Normally a work order is given to a politician in power, who has no work experience. As soon as he gets the work order, he would engage a sub- contractor retaining a margin of fifteen to twenty percent. The sub-contractor also had to pay to different agencies their unwritten shares. As a result, he would find his own margin of profit dwindling if he completed the construction. Consequently, he would adopt other devices, like persuasion, lobbying, etc. to increase the cost of the project on the plea that prices of construction materials had gone up. In most cases, the sub-contractors managed the increase the expenditure in connivance with the local hierarchy after taking two or three “running” bills, utilizing the money on other projects and thus delaying construction. A post of director was created in the Ministry of Law to oversee the execution of the construction plans. Normally a senior level officer in the rank of District Judge was appointed. When I became the Chief Justice, the director had retired from his service and no new director was appointed despite demands from the Supreme Court. In the Ministry of Law, there was a scarcity of senior officers and the department was run by some junior officers. The senior most officer, who was even senior to the Secretary-in-Charge, was made Registrar of the Supreme Court. The next senior officer was the Secretary of the Ministry of Law, Abu Saleh Sheikh Mohammad Johirul Haque. He was appointed the Deputy Secretary in the law ministry. Within a few days he was promoted to the position of District and Sessions Judge. After the secretary was elevated to the Bench, no senior officer was appointed in his place. Abu Saleh Sheikh Mohammad Johirul Haque managed to assume the office of Secretary-in-Charge and his junior officers were serially given the charge of the next higher posts to transact their business. As a result, I found a shambolic condition in the Ministry.
As per precedent, the Ministry used to make proposals for postings and promotions in different courts in the country. Sometimes, I noticed, in busy courts like in Chittagong, two Joint District Judges are working in place of five or six officers and in a district like Lakhsmipur, three or more Joint District Judges were working. I noticed that 6/7 Judicial Magistrates and 17 MLSS (lower-level staff) were posted in Khagrachhari. But, one or two magistrates would be sufficient to deal with the cases there, whereas those officers could have been accommodated in Chittagong where four or five more Judicial Magistrates are required. This way the officers were posted without any thorough field assessment and there was no competent officer in the Ministry to make recommendations after overall evaluation of the position in the field. The Ministry also failed to send replacement of an officer when a proposal for transfer of an officer was made. If the proposals were made simultaneously two officers could join the vacant posts, but if an officer is withdrawn from a station the court remains vacant for an indefinite period. It was pointed out to the Ministry that the proposals suffered delays of three to four months and thus caused backlog of cases. Moreover, the number of cases fixed for hearing faced a deadlock because the other judicial officer who would oversee the court would hear only urgent petitions without taking up regular matters, mainly because he too was overworked and could not hold trials of other courts’ matters. Following this method, we would never solve the problem particularly because the recommendations were normally made on a random basis. The officers who were working in so-called good stations, such as Dhaka, Chittagong, Khulna and Sylhet were retaining the same stations repeatedly. While the officers who were working in remote stations and choukis were not getting any chance to serve in Dhaka, Chittagong, Khulna and Sylhet. Normally if an officer worked in a station for three years, he could be posted in the same station again but in another capacity. There should be rotation of officers on a regular basis and all officers should be treated equally. I found the same set of officers was recommended for posting in Dhaka. I opposed such recommendations and told the Ministry that the officers who worked in Dhaka should not be allowed to work there again. Whenever I changed the recommended postings, the Ministry would not issue the Government Order (GO) and the court had to remain vacant for months together. Thus, the posting of Chief Metropolitan Magistrate, Dhaka, was delayed for about six months. The Ministry recommended an officer who did not have a good reputation. I opposed the proposal and directed my Registry to write to the Ministry that henceforth the Supreme Court would not approve any proposal for the posts of District and Sessions Judge, Metropolitan Sessions Judge, Chief Metropolitan Magistrate and Chief Judicial Magistrate from among officers who did not possess reputation and that only honest and efficient officers would be appointed to those posts.
In Dhaka, I recommended an officer as Chief Metropolitan Magistrate who was working as an Additional District and Sessions Judge, at the instance of the Ministry but the Ministry did not issue the GO and held it up for six months but ultimately it was compelled to issue the GO. Similar incident happened in the case of the Chief Judicial Magistrate, Dhaka. Whenever I brought this matter to the Law Minister, he told me that the government is in favor of posting officers who adhered to their line of thinking. I told the Minister that I am the last person to appoint any officer who has an unacceptable record as judicial officer. About to the proposal I had made, according to him, he was not belonging to the government’s line of thinking. I countered by saying, if he was brought to Dhaka at the instance of the Ministry and worked honestly, why he could not be appointed as the Chief Metropolitan Magistrate, Dhaka. He did not have response. He said that officers who were not following the government’s line of thinking—
even if honest—could not be posted because in certain cases they could inflict damage on the government.
I made it clear to the Minister that the Judges were not engaged in politics and whatever political affiliation they might have had in their student life, they had given up long ago. And after working ten to fifteen years in judicial service, they cannot be stigmatized as pro-opposition political party supporters. Secondly, I advised him that a pool of officers should be selected in the manner the government selected Deputy Commissioners (DCs) and Superintendents of Police (SPs) in the districts. In respect of postings of DCs, most honest and efficient officers are selected from among-st the serving officers and no disputed officer having a blemished reputation was posted as DC.I told him that if the DCs are appointed why could we not appoint the best officers in judicial posts. He did not agree to my proposal, but I did point out to him that most of the time the ministry concerned recommended disputed officers for Dhaka and Chittagong.
Even when the deadlock in the judicial service was not resolved after bringing it to the knowledge of the Minister, I directed my office to write to the Law Secretary asking him to meet me on a day. Despite the receipt of the letter, the Secretary left for Rajshahi without intimating the Supreme Court Registry. I took the matter seriously and brought it to the attention of some cabinet ministers. The ministers on hearing the issue expressed their bewilderment and said they found it incredible that the Law Secretary, known as an amiable officer, would show such disrespect to the Chief Justice. I discussed the matter with the senior judges and when the matter was disclosed publicly, the Law Secretary came to meet me one evening. I told him that his discourteous conduct was unpardonable. I reminded him that I had taken the matter very seriously. He then seemed to realize the gravity of the situation and sought unconditional apology. I told him that since the Law Secretary—who is none other than a judicial officer—had displayed disobedience to the Chief Justice I had to direct him to provide an explanation in writing. Subsequently all the officers posted in the Ministry came with written replies seeking unconditional apology and the matter was finally resolved.
Later the Law Secretary came and informed me that in the cabinet meeting he was not allowed to sit in the designated chairs meant for the Secretaries; rather the Secretaries were treating him like a Deputy Secretary. He therefore requested me to recommend his name as Secretary. Since I was always fighting for the dignity, prestige and status of all judicial officers, especially because the judicial officers were being neglected by the Secretaries and whenever any proposal for up-gradation of their status was made there was opposition from the Secretaries, I did not have to think much and recommended his name to get the rank and status of Secretary. Accordingly, he was made the Secretary in the Law Ministry.
I also found that there was no gradation list of the judicial officers. In the absence of such a roster, I had faced many problems when appointing an inquiry officer against any officer for corruption charges, because a junior officer cannot investigate charges against a senior office. I wrote to the Ministry of Law to prepare the gradation list, but they could not do so. In every department of the government as well as in the sector corporations, gradation lists had been prepared and existed. Accordingly, I directed the Registry to prepare a gradation list. The Registry issued a notice to all judicial officers to intimate their position and, after a thorough examination, the gradation list was published at the annual judicial conference. The judicial officers were naturally extremely pleased to finally receive the gradation list. The Ministry is now following this list. I also issued numerous circulars to the courts providing with guidelines and one of the guidelines was the District and Sessions Judges must hold trial of cases and hear of appeals in the morning session, and criminal, civil motions and bail matters in the afternoon session. I passed this order when I realized that the District Judges were explaining to me that in the afternoon, after recess, lawyers were not available and therefore they were not sitting in the afternoon. I personally checked some District Judges’ courts at 2.30 PM or 3.00 PM, but nobody answered the calls. The peons sometimes received the calls and said that the Judge had left the court. When I issued the circular, some senior lawyers were annoyed because the lawyers were interested in the hearing of bail petitions and injunction matters in the morning. They are not interested to appear in trial of suits, session’s cases and appeals.
On one occasion, I visited Narsingdi and all the senior lawyers came to me and requested that I withdraw the Circular. Their version was that they being senior lawyers wanted to work in the morning session and at lunch time they returned home and took rest. I told the lawyers that doctors were advising that senior persons should take little food and continue working to avoid heart ailments. I told them that I had issued the Circular in the interest of the senior lawyers who normally would return home and eat a heavy lunch that would cause heart diseases. Secondly, if they attended trials of cases, the junior lawyers would learn from them the art of cross examination of witnesses. This was a practice which I myself had learned from my senior in the district court. The lawyers got the message and did not proceed further on this matter. In addition, I issued other circulars on many topics ranging from directing the judges to issue certified copies to the parties without delay; to inspect sections on regular basis; to hold judicial conference every month and so on. These circulars and guidelines infused momentum into the administration of justice in the lower courts. It was also reported by the District Judges in course of my inspection that they have been facing with acute shortage of employees and they could not proceed with the appointment process without the prior permission of the Ministry. I was also told that the third and fourth-class employees were appointed from other districts and usually they left their stations on Thursday afternoon and sometimes did not return to work on Sunday or Monday on various pretexts. I noticed too that 17 low-level employees who had been posted to Khagrachhari district court were all from Rangpur and Rajshahi areas. The District Judge told me that they remained absent for 15 or 16 days a month and, he said, since they were from other districts it was not possible to issue summons to them in remote areas.
Hence, I issued another circular directing the District and Sessions Judges, Metropolitan Session Judges, Nari-O-Shishu Nirajaton Daman Tribunals and Chief Judicial Magistrates to appoint 3rd and 4th class employees from the local districts and they should start the process without seeking any permission from the Ministry of Law. It was pointed out to me that the Ministry of Law had issued a circular to the courts directing them that there should not be any appointment to vacant posts without prior permission of the Ministry. This had created a deadlock in all districts. The Judges could not transact business smoothly for shortage of supporting staff. The circular was issued by the Ministry of Establishment now Janaproshason. It was for the government departments and sector corporations to the effect that no appointment could be made without the approval of the concerned ministry. This Circular was not applicable to the District Courts because the District Courts are under the Supreme Court.9 Neither the government nor the Ministry of Law can control or have supervision authority over it. There were complaints from the local Bars that outsiders were being appointed in different sections and they were not regularly available and, as a result, the litigants were facing serious problems in taking copies and do other related work.
On one occasion, I got a case of a similar nature, in which some employees were working for five years in Tangail. They were transferred from one station to other. Their salaries were stopped claiming they were appointed in the revenue set up beyond the time schedule fixed by the Ministry. The selection process was delayed by seven days only. When the matter came up for hearing, on behalf of the State the Additional Attorney General produced the Circular of the Ministry of Janaproshason (Establishment). On inquiry whether this circular was applicable for recruitment in the lower judiciary, he could not give any proper reply. On the strength of the circular, the Law Minister used to send an officer from the ministry with a list whenever the process of appointment was started, and a process of exam and recruitment was conducted, and the District Judges were compelled to make appointments as per the ministry’s list. It was also reported by the lawyers that in each appointment, the officer concerned used to take five to six lakh taka and the outsiders were normally selected. I declared the circular void and directed the District Judges to continue the recruitment process without any approval from the ministry, so far as the vacant posts were concerned. From thence, recruitments are being made independently and the local people are getting priority and only in technical posts, if local appropriate people are not available, candidates from neighboring districts are appointed. After the verdict and after the appointment process was regularized, it was reported that the Secretary of the Ministry of Law threatened the judicial officers that they would have to face unpleasant consequences after my retirement. The Law Minister was so annoyed that one day he came to my office and told me that he could appoint 2/3 political supporters, but due to the judgment, he was facing many inconveniences. I told him that the appointment process had become so corrupted by a section of officers, the administration of justice was hampered, and the Chief Justice felt compelled to take actions for the interest of dispensing justice and eliminate corruption in the appointment process.
The entire budget for the lower judiciary was given to the Ministry of Law. But the Chief Justice noticed that the judges were recording evidence manually and the copying section was issuing handwritten certified copies because of shortage of typewriters. Lately supply of typewriters had been stopped and even though computers were supplied down to the Union Parishad level none was supplied by the ministry to the District Courts. Accordingly, the Chief Justice called a meeting with the Secretaries concerned to simplify the work order and harmonize it. The Cabinet Secretary Mohammad Shafiul Alam, who was the Secretary of the Ministry of Land, including some other Secretaries and the Law Minister were present. In the day-long program different issues were discussed. All of them praised the initiatives and expressed their willingness to improve the spheres which needed to be improved in the lower judiciary. I pointed out, at one juncture that due to shortage in supply of computers judicial work was greatly hampered and requested the Law Secretary to provide 700 computers while the rest of the computers would be provided by the Chief Justice. The Law Secretary assured supply of the computers, but not a single computer was supplied. Whenever I visited district courts, I used to carry five to six computers with me. In this way, phase by phase, I had supplied computers from the Supreme Court budget.
All government offices were taken under the digitization program, but the judiciary was left out of consideration. I took the issue to the Law Minister, the Finance Minister and the Prime Minister. But none paid any heed to my request. Thereafter I took up the digitization program on my own with the help of the UNDP and, as a test case, I started the program with the Magistracy of Sylhet. Shortly after digitization we noticed that the disposal of cases in that Magistracy was four times higher than in other courts. On being encouraged by the pace of work I decided to initiate digitization in all courts. Initially it was decided to start the process in Dhaka, Chittagong, Rajshahi and other large courts. I contacted the Minister for State in charge of the Ministry of Information and Communication Technology Junaid Ahmed Palak. He appeared to me to be a very energetic, spirited young politician. As soon as I brought up the issue he gladly accepted my proposal and he displayed great interest in the digitization process. He sent some of his experts for exchanging views in this regard and after assessing the requirements intimated my office that about Tk 400 crore would be needed for digitizing the judiciary. I invited Junaid Ahmed Palak and when he came to my office, he learnt about the amount of money required for the project. After consultation with him, I invited Planning Minister AHM Mostafa Kamal for a cup of tea and when he was in my office I requested him to grant the necessary Tk 400 crore for the project from the development budget. He agreed and included it in the pre-ECNEC meeting and asked the Supreme Court Registry to send an officer to that meeting.
This was for the first time an officer of the Supreme Court attended a pre-ECNEC meeting. The officer noticed that six officers from the Ministry of Law opposed the project at the meeting. Their main objection was that the Ministry itself would manage, control and oversee the entire digitization program. The worst ministry in the government is the Ministry of Law. It had even failed to construct the magistracy buildings in nine years.
And I had to personally involve myself in the site selection process in some districts. As for the digitization program, the IT Ministry had already undertaken the scheme in other sectors and it had the needed experts, while the Ministry of Law did not have any expert. With the intervention of the Secretary of the Planning Commission—who commented that the Chief Justice was very active and energetic in the development of the judiciary and did a lot for it—the project was approved in the pre-ECNEC meeting, but it could not pass through the ECNEC because of the objection from the Ministry of Law. When I came to know about this I was very shocked that the Ministry of Law was working against the interest of administration of justice instead of the development of the judiciary.
Amongst the urgent development work undertaken in the Supreme Court one was the improvement of the Registry. When I assumed the office of Chief Justice Kuddus Zaman was the Registrar and the Supreme Court was run by one Registrar, two Additional Registrars, and some other officers in the junior level. Zaman was an efficient and honest officer. But he lacked judicial experience. I told him that I would send him to a district of his choice as District and Sessions Judge, but I could not keep him as Registrar. Though initially he appeared shocked but a moment later he smiled and said that whatever order I would give he would obey. The objective was that unless the Registry was improved with the infusion of efficient officers, the Chief Justice would not be able to perform his duties effectively. Moreover, with few exceptions, Chief Justices usually had little previous experience in administrative matters. Therefore, among the first things I kept in mind was that there had to be improvement of the Registry office by bringing in efficient officers.
I proposed the name of Farid Ahmed Shibli, who was then a Senior District Judge and Secretary of the Judicial Service Commission. He was an efficient dignified man of principle. He had good command of the English language and had also obtained higher training in Canada. But my proposal was met with objection from the Ministry of Law claiming he did not belong to their political ideology. I told the Minister that if Shibli could be the Secretary of the Judicial Service Commission under MM Ruhul Amin, Tozammel Hossain, ABM Khairul Haque and me for about six-seven years and had performed his work efficiently, why he could not be appointed Registrar. Earlier, he had worked as Additional Registrar of the Supreme Court as well. I had thought that since he had served as Additional Registrar,
he could be the best Registrar. I informed the Minister that it is my priority to bring in officers of my choice in the Registry and the government had nothing to do with this matter. The Law Minister ultimately approved the proposal and sent Kuddus Zaman as District and Sessions Judge of Dhaka.
The first thing I advised the new Registrar to do was to reshuffle the Registry by bringing efficient officers from the field irrespective of their race, color and belief. I believed that the Chief Justice would remain busy with heaps of work since he must administer justice and look after the administration of the Supreme Court and lower judiciary. So competent and efficient officers would infuse momentum in the work of the office of the Chief Justice. As per his advice, the officers were selected, among them, Anisur Rahman as Secretary to the Chief Justice, Farzana Yasmin as Deputy Registrar and another female officer as Assistant Registrar. Of note here is that Farzana Yasmin was the first female Deputy Registrar.
The Chief Justice maintains two secretaries, one for the Appellate Division and the other for the High Court Division. The secretaries used to be posted by promotion from the position of Bench Officers and Bench Readers, which are essentially clerical jobs. I found strange that a Secretary to the Chief Justice was appointed from a clerical post. I therefore appointed an Additional District Judge Anisur Rahman as Secretary to the Chief Justice in the Appellate Division. Since many dignitaries, judges, ministers, chiefs of foreign aid agencies and ambassadors, among others, used to come to meet the Chief Justice and he must remain busy with many kinds of responsibilities, I believed if a competent officer was posted as the Chief Justice’s secretary he could receive the guests properly and converse with them before the Chief Justice was available.
I told the Law Minister that if the Speaker and Ministers could have Private Secretaries in the rank of Deputy Secretary and Joint Secretary, why the Chief Justice could not maintain a Secretary in the rank of an Additional District Judge. The Law Minister could not counter my plea plausibly and moved the file and ultimately it was approved. So, for the first time a higher judicial officer was appointed as Secretary to the Chief Justice. This helped me a lot particularly since the former Chief Justices used to come to the Supreme Court for drawing their pension and other benefits and they could not be received properly by the officers. After this change all the former Chief Justices and other retired judges praised me for appointing a judicial officer as the CJ’s Secretary. Secondly, I had noticed that the retired judges, former Chief Justices, ambassadors, social workers, donor agency heads used to come to meet with the Chief Justice but there was no proper arrangement for them to sit. The judges, including myself, were therefore compelled to stand at the front door of the Chief Justice’s chamber for interviews. The High Court Division judges have only 45 minutes of recess and in that time, they had to eat lunch, pray, and meet the Chief Justice. They could not be met at a time, because some had personal issues to talk with the Chief Justice. Apart from that the President and Secretary of the Bar, senior lawyers, the Attorney General also used to come to meet with the Chief Justice. Accordingly, I arranged one room for the Judges and foreign dignitaries with all amenities and for the lawyers another room. After this arrangement, all the judges were very pleased, and they used to recount their past ordeals when meeting the Chief Justice. I told them that there is hardly any difference between a Chief Justice and the other judges; they are all brothers. The difference is that the CJ was given some extra work for the smooth administration of justice. He is being the guardian of the Constitution should also look after the difficulties being faced by the judges. Previously the situation was so dire that there was not even a toilet for the use of a visiting dignitary.
Another problem which used to bother me hugely was the delay in writing judgments by the judges. Sometimes they took 3/4 years. This was done mostly by AKM Khairul Haque, Md. Mozammel Hossain, AHM Shamsuddin Chowdhury, Md. Abdul Wahhab Miah and a few others. When Md. Mozammel Hossain was the Chief Justice the lawyers complained in court that they did not get the judgments even after three years. A most embarrassing instance occurred when all seven judges were constituting the Bench and a lawyer mentioned a matter, possibly relating to Gulshan Club, which was disposed of about three years back, but the judge did not deliver the judgment. When the Chief Justice asked about the judgement, the lawyer produced a slip mentioning the name of AHM Shamsuddin Chowdhury. Despite the Chief Justice’s direction, the judge took six months to finalize the judgment.
Previously we delivered judgment in the High Court Division in open court but subsequently the judges adopted a policy of not dictating the judgment in open court but instead declared the verdict absolute or discharged or dismissed or allowed. Lawyers were complaining that as the judgments are Witten after long delays, almost in all cases, the judges did not discuss the points argued by them and, as a result, when the matters were heard, I pointed out points that had not been raised in the High Court Division. The lawyers’ answer was that they argued for a long time and showed grounds taken in the High Court Division. This was totally unethical. So, I directed the judges to dictate their judgments in open court, but it yielded little result.
Another bad precedent that had developed was keeping the judgment without expressing opinion and the judges used to write the judgments after retirement. Md. Mozammel Hoque kept about 70-80 judgments and AHM Shamsuddin Chowdhury retained more than 300 judgments. He even kept some judgments of the High Court Division. I issued a circular prohibiting judges from writing judgments after retirement. The judiciary acts as a natural umpire which keeps checks on the exercise of power by other organs of the State to ensure that the rights of citizens are not trampled on contrary to the law. When the judiciary enjoys such a special position in the functioning of the State it is also saddled with the onerous duty of discharging its functions efficiently and without delay. It is universally known that a judge finally speaks through his judgment. The Pakistan Supreme Court observed that the cases where judgments were withheld by courts for a considerable period are frowned upon and disapproved.
In another case, the same Supreme Court, in the case of a judgment passed after one year and three months, set it aside on the reasoning that it was against natural justice and it fundamentally did not satisfy the concept of proper judicial dispersion. It was of the view that there is rule of violation of a judicial decision. The Constitution provided that a judge shall hold office until he attained the age of sixty-seven years. He subscribes to an oath under Article 148 so long he would hold such office to faithfully discharge the duties and protecting, preserving and defending the Constitution. But after the retirement he did not remain a judge and any judgment delivered by him is void because he had become functus-officio. He cannot hold the office of a judge of the Supreme Court because his oath covers only the period of office.
After I had issued the Circular there was serious tension among the members of the Cabinet including the Prime Minister? Their apprehension was that the Constitution’s Thirteenth Amendment would become void because ABM Khairul Haque delivered his opinion long after his retirement. Some ministers met me and even castigated me as one to cause damage to the government. On one occasion the Prime Minister brought up the issue with me and asked why I was issuing controversial orders. She told me that ABM Khairul Haque wanted to make a hold a press conference, but she had prevented him. She added that since the practice was already being followed why I had raised the point. On hearing her I laughed and told her, yes ABM Khairul Haque wrote the judgment after retirement but what about my judgment. All the judges signed the short order while all of them were in office and I wrote a separate judgment. I told her she would not allow any minister or secretary to sign an official file after retirement even if they inadvertently they kept a matter pending. The Prime Minister after getting the explanation remained silent. As per my direction all judgments of Md. Mozammel Hossain and Shamsuddin Chowdhury were rewritten by sitting judges. I did not allow any judge who had retired from the High Court Division to sign judgments. The bad precedents have been eliminated and now all judges are mindful to complete their judgments before retirement.
After having successfully implemented these improvements, I realized that the beautification of the Supreme Court should be undertaken so that people who came to the court would feel that they have entered the temple of justice. If the atmosphere was appropriate they would develop a sense of getting justice here. So, I decided to extend the size of the Registry. Previously there was a demand for the establishment of a Supreme Court Secretariat. The government did not pay any heed to it. I realized that if I raised this point it would not be implemented during my tenure. Hence, I proposed the up-gradation of the position of the Registrar to Registrar General and under him there would be two Registrars, one for the High Court Division and another for the Appellate Division, and under them Deputy Registrars and Assistant Registrars would be appointed.
Simultaneously I presented a program for setting up a section under the name ‘Research Wing’. After much tussle and back and forth of communication, I managed to get approval for the expansion of the Registry office. Then I appointed Syed Aminul Haque as the first Registrar General. He was in the Ministry as a Joint Secretary. After the elevation of Farid Ahmed Shibli to the Bench as Additional Judge of the High Court Division, I succeeded in appointing Syed Aminul Haque. This provided momentum in the work of the Registry. I also set up the IT department with required experts to digitize the Supreme Court completely. As part of the beautification process, I took up the inner garden had flower bushes planted and the entire court compound was cleaned up including the extended the Supreme Court building toward the north and deputed the Special Officer to look after the beautification project.
I noticed that the Supreme Court Bar car park was very small, and cars were being parked all around the court premises. Half of the car park was covered with bushes and garbage. I directed the Registry to clean up the place and directed the Ministry concerned for carpeting the area for additional parking space. Thus, while the lawyers got double the space than previously, vehicles of litigants were prevented from parking within the court premises. There was a road in the western side of the Supreme Court which passed between Suhrawardy Uddyan and the three national leaders’ mausoleum. The road was unusable because a big portion of the road in the middle at the entrance of the Uddyan was taken over by slum dwellers. I evicted the encroachers with the help of police and directed the Works Department to build a spacious road. Ultimately the road was opened, and it was named Nyan Sarani (Justice Road).
I noticed that the judges had their hair cut either at the New Market or the officers club or some other private places. Sometimes they had to wait for a long time to get their turn. It was not pleasing to see judges have hair trimmed at public places. The Chief Justice and other judges are not safe when using such public places. The army, police and administrative officers have their own barber shops, but the Supreme Court had no such facility. Though the former Chief Justice had opened a Judges’ Corner in the extended court building, due to shortage of fund he could not arrange any recreational facilities. In the process of improving the Judges’ Corner I had arranged to set up two modern barber shops for male and female judges including their spouses. I constituted a committee to manage the Judges’ Corner and advised them to expand the facilities for the judges. The Judges’ Corner had a badminton court, but it could not be used in the rainy season. They wanted me to build an indoor sports complex with modern facilities. I arranged funds for it with the help of the Ministry of Sports and constructed a modern standard complex in the north of the extended building which can also be used as a conference hall. The committee also approached me for funds for starting a bakery and canteen for the judges. I arranged the needed funds and a modern bakery, and a canteen were established. Since the Judges’ Corner became self-sufficient the management committee arranged ‘Boisakhi Mela’ on Pohela Boishakh and observed all national festivities while organizing blood donation programs every year on the 15th of August.
During Ramadan, hosting iftar parties by various departments including the President and the Prime Minister has become a part of our culture. The Army, Police and other departments also arrange grand iftar parties. The Chief Justice is invited to all such occasions. But the Supreme Court could not host any iftar which, I felt, was damaging to the reputation of the court. I asked the Registry to arrange an iftar party in the very first year of assumption of my office inviting the President, the Prime Minister and some Ministers, Secretaries who relate to the judiciary, senior lawyers and officers of the office of the Attorney General. Though there was heavy rain, that party was arranged in an open space of the extended building. The officers arranged the waterproof canopy in such a manner that the rain did not create any hindrance. The performance of the first Iftar party in such inclement wealth, the items served in the Iftar to the guests were so delicious that they praised. The President, Prime Minister, Speaker, three service chiefs were present. The second year the iftar was arranged in the indoor sports complex. The President was very pleased with the arrangement and advised us to continue with the program every year.
There was no space for a daycare center for the children of the employees of the Supreme Court. I saw that the female workers were facing many problems while attending office keeping their new born babies at home. So, I decided to open a daycare center. Female employees were appointed to look after the babies. Food and milk were also arranged. But I could not arrange a daycare center like the one Bangladesh Secretariat has due to shortage of space. However, since the process had been started, I hoped it would be improved in the future and could be shifted to a suitable location. Keeping this thing in mind, I asked the government to shift the International Crimes Tribunal (ICT) from the Old High Court building to another place so that the museum, the daycare center, the bank and post office could be accommodated there.
I raised the problems with the Prime Minister specifically because it had been falsely reported to the Prime Minister that there was enough vacant space in the extended building, which was occupied by the Roads and Highways Department. I told the Prime Minister that not an inch of land was lying vacant and that she had been misinformed by interested quarters who do not want the appropriate institutionalization of the Supreme Court. I came to know later that the Prime Minister got a report from an intelligence agency suppressing the facts. On one occasion when the Law Minister came to the Supreme Court, before we started our discussions, I requested him to look in the extended building so that all misunderstandings could be erased. I took him to the different sections of the building and showed him how the employees were working in a noxious environment without proper air and light. I showed him where the employees were sitting with piles of files around them which might fall on them. I also showed him the condition of the Record Room where there was not even an inch vacant space and every day thousands of files were added to the Record Room. The Supreme Court being a Court of Record all files are required to be preserved. In more developed countries, including India, the records are kept in digitized form.
The Minister was convinced, and I initiated a program to digitize the records. Therefore, I invited State Minister for IT Junaid Ahmed Palak. He visited our Record Room and was convinced that the records should be kept in digitized form. But his wishes could not be implemented till higher authorities approved the project. I pointed out to the relevant Ministers that, if God forbid, any fire occurred in the Supreme Court particularly in the Record Rooms, there would be a colossal damage to the nation which could not be assessed in terms of money. Accordingly, I submitted a project profile for the construction of a building towards the middle section of the Supreme Court and extended the building providing provisions for underground floors for keeping records where fire could not cause any damage to them. A police sub-station would be set up for the security of the records of the Supreme Court as well as accommodation for a clinic for the officers of the Supreme Court. The project was finally sent to the cold storage for reasons not known to the Chief Justice although the Law Minster was in favor of the project.
In Commonwealth countries particularly where the Westminster type of governments are working, it was a convention that a national judicial conference is held which is attended by the Chief Executive of the government, Finance, Law and Home Ministers and their Secretaries and all the judges. A meaningful and workable judiciary is necessary to build the country as a State for the welfare of the people and unless the Executive branch extended its hands, rule of law cannot be established. At the conference field level officers would point out the difficulties they were facing in the administration of justice while the Chief Justice in his speech highlighted his programs to be implemented, so that the Chief Executive of the government could realize and direct the ministries concerned to take
appropriate measures by providing funds and security.
This convention is not followed in Bangladesh. It is because though we inherited the British legacy of the administration of justice, after the Partition, Pakistan was ruled by the military for a long period of time. There was no rule of law in the true sense in Pakistan and the judiciary was neglected and the Chief Justices did not follow traditions. After the independence, there was scope for the Chief Justices of Bangladesh to arrange such programs, but they did not do so. As a result, the convention was given a pass. I realized that unless these things were brought to the notice of the Executive, there could not be any positive change in the judiciary. On the other hand, the Ministry that was supposed to initiate the development programs was instead hindering the programs.
Accordingly, I arranged a National Judicial Conference in December 2015, when the civil court was on vacation. The Prime Minister and other related Ministers and Secretaries were invited. The intimation was sent to the Prime Minister’s office two months prior to the event. The Bangabandhu International Conference Center was also booked for the program to accommodate about 1600 judges. There was no response from the Prime Minister’s office despite repeated reminders from the Registry office. I came to know from some source that the Prime Minister was persuaded to avoid the conference. I was naturally extremely shocked particularly because the Prime Minister was always attending conferences some of which were not even suitable for the Chief Executive. She was attending all functions and seminars of the bureaucrats, police, military and other organizations. She used to attend functions like inaugurating a building but avoided the most vital gathering. So, without waiting for any reply, I rushed to the Bangabhaban to meet the President. President Abdul Hamid gladly accepted the invitation and said that in such an august gathering, he should have been invited earlier. The President had a program in Sylhet on that day. He directed the organizers to delay the program by an hour so that he could attend our program. On seeing the packed auditorium with judges and, equally significantly, with 40 percent audience being women, he was enormously delighted and told me that if he had no program in Sylhet he would have spent the whole day with the judges and would have taken his lunch with them.
Judicial officers from every corner of the country attended the occasion and it was an innovation for them which they had never experienced. I ate lunch at a table where the junior Assistant Judges were taking lunch, although arrangements for the Chief Justice and other judges were made separately. But the result was that the junior officers were immensely happy getting me with them. The next judicial conference was also fixed for December 2, 2016. Before sending any invitation to the Prime Minister, the Principal Secretary to the Prime Minister came to meet with me for some special purpose. I informed him that despite my invitation to the Prime Minister during the last judicial conference her absence had created a bad precedent. I also said that I would not invite her to attend the next conference if she did not wish to attend. He then wanted to know whether any “unusual demand” would be made to the Prime Minister. I told the Principal Secretary that it was beyond belief the Prime Minister’s office had imagined that the Prime Minister would be invited to a judicial conference to embarrass her, particularly when the Chief Justice, Ministers and other judges would be present. I explained to him the purpose and necessity of holding such conferences and cited examples from other countries. The Principal Secretary was convinced, and a signal was received to invite her. The Supreme Court officially invited her and there was confirmation from the Prime Minister’s
office that she would attend the program.
As mentioned earlier, there is always a tug of war between the Ministry and the Supreme Court over postings and transfers of the judicial officers and promulgation of Disciplinary Rules for the judicial officials. On the question of Disciplinary Rules, the matter was ultimately brought to the attention of the Prime Minister. On one occasion I met her and said that if an officer of her department flatly declined her direction, what would be the working condition of the Prime Minister’s office and what would be her reaction if she found that despite such insubordination, she had no power to dismiss him. It would not have been practical on her part to transact business with such errant officers. This was what was happening in the judiciary. There was practically duel administration in the lower judiciary because of conflicting provisions in the Constitution.
Only seven days before the conference it was unofficially reported that the Prime Minister would not be attending the conference, but there was no intimation. The Registry could not reach the Prime Minister’s Office and one or two days before the conference, it was said that the Prime Minister would remain busy with other work, so she could not attend. At this stage, there was a possibility of inviting the President. It was also reported from the Prime Minister’s Office that since the President was attending the conference, the Prime Minister declined to attend. But as a matter of fact, the President was not even invited. Nevertheless, the conference was held in a congenial atmosphere, but the Law Minister and the Law Secretary were also conspicuously absent. For the Law Secretary it was reported that he had gone to Chennai for his wife’s treatment and the Law Minister was admitted to hospital for a hernia operation.
The date of the conference had been fixed six or seven months ago, and they were properly invited and agreed to attend the conference. But it became very clear that the Executive in a planned manner avoided the conference. After the conference, I decided to organize the next conference in 2017 with a different format. I would invite the Chief Justice of India from whom the judges would be able to learn about the improvement that he had done in the judiciary. I also directed the Registry to distribute one laptop to each of the judicial officers and arrange funds accordingly. The process of purchasing of laptops was also initiated. But my destiny did not allow me to remain present in Bangladesh as the Chief Justice. Therefore, as reported, the conference was held in a very perfunctory environment, and after the lunch almost all judicial officers left the venue. The laptops were, not distributed among the officers even though I had arranged for the purchase of the laptops. It was due to lack of efficient officer in the Registry.
The Supreme Court’s condition was so precarious at the time I assumed office, it even could not print a diary for the judges, Bench Officers and Personal Officers of the judges, although all departments of the government used to publish diaries and supplied them to us. In the judiciary, particularly for the Bench Officers and Personal Assistants, a diary is indispensable. The Personal Officers are required to maintain the judges’ daily schedule of work and to enable them to remind the judges about their programs. The judges had to wait for the arrival of calendars and diaries from other government departments and business houses. I directed the Registrar General to print diaries every year in December and distribute those among the judges, Bench Officers, Assistant Bench Officers and other officers of the Supreme Court. This practice was begun in 2015.
I had undertaken and implemented many development programs and activities.
- New link road between the Supreme Court and the Bangla Academy;
- Beautification of the Supreme Court, 5-km road, garden lighting, fountain, landscape, car parking area of the Supreme Court;
- New administration building under process;
- Annexed-2 building under process;
- Procurement of security materials, bag scanner, archway etc.
- New chambers for judges and other dignitaries, new court no-10,
- Renovation of all judges’ chamber;
- Renovation of administrative sections,
- New waiting room for the guests of the Chief Justice;
- Indoor sports complex;
- Day care center;
- Renovation of judges’ lounge,
- Renovation and beautification of corridor of main building, Installation of legal aid office;
- Providing support to judges’ corner by furniture, equipment, monthly cash contribution, canteen and bakery;
- Arranged training for all judges in India;
- Holding national judicial conference for judges;
- Development of 5-year strategic plan for Supreme Court;
- Developed new performance and evaluation system and software for judges of the subordinate courts;
- Publication of first judicial policy for the subordinate judiciary;
- Amendment of Criminal Rules and Orders;
- steps to amend of recruitment Rules and Disciplinary Rules of both the Divisions;
- Installation of CCTV camera covering the entire area of Supreme Court;
- Iftar Programs;
- New gradation list for judges of subordinate courts;
- Developed E-filing for Supreme Court;
- developed software for jail appeal cases;
- Research Unit;
- Prepare new delegation of power policy;
- Administration and financial arrangement for smooth running of the administration of the Supreme Court;
- New entitlement guideline for medical treatment abroad;
- Complaint box in front of the Registrar General’s office;
- Renovation of medical center;
- Renovated the Chief Justice’s official residence replacing the old gates and naming the house as ‘Nyan Bhabhan’, beautification of the garden by installing two fountains;
- Judges Rest House.
I also improved the libraries of the Supreme Court. There are two libraries, one for the Appellate Division and the other for the High Court Division. The Appellate Division’s library was arranged just towards the southern corner room contiguously next to the Chief Justice’s court room and the High Court Division library was in the old court building. The former Chief Justices did not give much attention to the modernization and relocation of the libraries. After the annex court building started functioning, most of the High Court judges started sitting in courts in the annex building. It was difficult for only three or four staff to function well in the libraries. There was no qualified librarian in the library of the High Court Division. I had to appoint a qualified librarian and two qualified assistant librarians for each of the libraries. I sent the Appellate Division librarian along with another for training to the Indian
Supreme Court library. When I had visited the Indian Supreme Court library, I had noticed that the library was very well organized. The librarian had a PhD degree in library science. The librarians also used to help the judges in preparing speeches for various functions. The library is possibly the biggest court library in Asia is being managed so scientifically that within minutes they could collect the books requisitioned by the judges from different benches. I wanted to know from the librarian about his experience. He was highly impressed by the very developed system in the Indian library. I told him that now he should utilize that experience in modernizing our libraries. His first duty was to shift both the libraries from their present locations. I directed the Registry to arrange suitable places in the annex building for the High Court Division’s library so that it could be easier for judges to get the necessary books. I also directed him to depute an officer for shifting and improvement of the library. The Appellate Division library is shifted to the former place of the High Court Division library. After the shifting of the library, the room is converted to a court room which was previously used as court and now it can be used as court no-3 for the Appellate Division.
Besides I introduced e-library in the Supreme Court which was the digital format library. A software, KOHA, was developed for both the libraries. With KOHA more than 80,900 books were enlisted. The essential feature of a book, i.e. total number of pages, writer’s name, bibliography, abstract, name of the book, etc. are described in the software. The system is very user friendly and made it easier for the librarians in the management of the books. The users of library, especially the judges of the Supreme Court, can access the entire library online and see the necessary books. Previously the Supreme Court librarian’s status was of a third-class employee which I upgraded to an officer, and the High Court librarian’s position was also in the process of final approval when I left the court, because all librarians now have master’s degree in library science.
Despite non-cooperation from the government regarding budgets, I undertook the digitization process in the Supreme Court. The first program I took up was the publication of the daily cause lists online in November 2015. Under this system, cause lists of both the Divisions of the Supreme Court are published online. To make the system sustainable and “Operational manual” has been drafted by the Research Unit of the Supreme Court. The Bench officers, staff of the Bench Section and IT Department give impute of cases to make online cause list more user friendly. IT Department converted into PDF format and upload in the website. There are two mobile apps available in the Supreme Court using which the following information can be accessed:
- the litigants can be informed about the result of the case even at a remote place;
- they are usable on a simple smart phone;
- the lawyers and litigants can get the upcoming cause lists 12 hours ahead of the hearing;
- results can be found immediately after orders and judgments are passed;
- corruption among the Bench Officers and court staff in listing, upgrading, downgrading cases from the daily cause lists has been totally abolished;
- through using such options lawyers and litigants can easily access their cases;
- lawyers and litigants can get information about the item which has been taken up for hearing at any time;
- there is opportunity to get both printed hard copy and soft copy of the cause lists. However, I failed to persuade the lawyers to stop printing the daily cause list from the BG Press, although I proposed to them that I would arrange monitors in the Bar library to follow the progress of the cases being heard by the Benches and the daily cause lists would be regularly uploaded to save public money. With the saved money, more development programs could be undertaken. Even new apps have been added to check the number of pending cases of any lawyer. We also introduced a system so that lists can be uploaded by the lawyers and their clerks and introduced a database using which litigants can monitor the status of their cases.
Every year we must pay BG Press twenty crore taka for printing the daily cause lists. For printing the cause list, the Supreme Court now requires only one hundred taka, but the lawyers contribute Tk. 500 per month. So, a huge amount of money was wasted for printing the daily cause list. Accordingly, I called upon the Supreme Court Bar to download the cause list and print those instead of obtaining printed copies. But the lawyers were bent on printing the cause list. I even told them that, if needed, I would arrange training for downloading the daily cause list and put up monitors in the Supreme Court Bar for monitoring the cases being heard by different Benches. I also prepared a program by application of which each of the lawyers could find out the serial numbers of cases pending in different courts. The lawyers prevented me from stopping the printing of the list. I told them that the Patna High Court stopped printing of cause lists in 1978 and around 2000 all courts in India stopped printing daily cause list. Due to objections raised by the lawyers the digitization process for cause list could not be implemented yet.
Another fact that disturbed me much was coming to know that hardened criminals could manage to get released from jail by forging the signatures of the judges in collusion with some corrupt officials of the court. So, I directed the Registrar General to issue notice upon all Bench Officers and all Presiding Judges holding criminal jurisdictions to inform the office the names and case numbers of the accused in favor of whom bail had been granted. Simultaneously, I directed the Registrar General to intimate the concerned courts about granting of bails by the High Court in respect of the accused person and mention the list. I also directed him to communicate to all jailors that no accused should be released from custody without verification from the Supreme Court. After introduction of this system, though there was check in forgery, some judges, Bench Officers and the lawyers were not happy. For the judges the procedure put extra pressures on Bench Officers while the lawyers told me that this process created delay in releasing the accused. I did not listen to their objections and continued the process and directed the office to create another wing under the name ‘Research Center’ and proposed to the government the sanction of some judicial officers with supporting staff pointing out specifically that this would bring advantage to the government. Often corrupt litigants, after taking lease of a fishery or quarry or a ferry ghat or property, obtained stay order from the High Court Division for a temporary period but continued to enjoy the property for indefinite periods. And as mentioned earlier, hard-edged criminals also managed to be released from jails by forging signatures. All these corrupt practices would be rectified if a Research Wing could be established.
When I used to visit the district courts, the Deputy Commissioners would complain to me that they could not get up-to-date orders of different cases and, as a result, even after the expiration of the lease period, the lessees profited from government property for indefinite periods and thus affected revenue collection. I spoke to the Law Minister explaining the situation and requested him to expedite the matter. The Law Minister supported my proposal and assured me of cooperating in this regard. I also requested the Janaproshashon (Establishment) and the Finance Secretaries to co-operate in the improvement of the Registry of the Supreme Court in the interest of the government. I monitored the progress of the issue by deputing an officer to keep tabs on the file. But ultimately—and sadly–our officers could not trace where the relevant file was concealed. Even after waiting for one year when we had no result I got an opportunity to meet the Prime Minister at a State function. I explained to her how the project for improvement of the Supreme Court would serve the interest of the country. In reply the Prime Minister told me that this would require many officers and involvement of substantial money. I responded by telling her that no new officers would be required to be hired, only 5 to 6 judicial officers from the field could be deputed in implementing the project. Her reply was that, even if those officers were deputed, they would require support staff involving huge monetary expenses. I got her reply and did not say anything more to her. She gets whatever she desires from the judiciary, continues in power without holding national elections properly in by presenting inaccurate interpretation of our judgment in the Thirteenth Amendment case, but continues to be hostile toward the improvement of the Judicial Branch.
In the meantime, I directed the Registry to find out a new software that would expedite the communication of bail granting orders on the same day without waiting to obtain a copy from the court. This would obviously reduce corruption and expedite the process. I had collected some brilliant judicial officers in my Registry who had vast knowledge on IT. With their assistance the IT Department worked out a method in which the entire process of communication was digitized. After a bail order was signed by a judge, the signed copy is sent to the criminal miscellaneous section where it is noted in the file and signed by an Assistant Registrar deputed for the purpose. Thereafter the order is sent to the IT Section which then scans it and gives it a web reference number and finally posts it on the Supreme Court website. The district courts can verify it online to ascertain the authenticity of the bail order quickly and decide for releasing the prisoner.
I can honestly claim that no Chief Justice other than Mahmudul Amin Choudhury ever tried to reduce court holidays. There was no endeavor to modernize the judiciary, not to speak of digitizing it. No attempt was made by anyone to enhance the strength of the Registry for transacting court business except claiming to set up a secretariat which would be a futile attempt because they had not read the mindset of the Executive. All the time we accepted the government’s dominance over us and it reached such a position that the Executive wanted to treat us as a department of the Executive. For the first time I asserted the Supreme Court’s role as guardian of the Constitution. It is an Organ of the State, not an organ of the government. This raised eyebrows among some and started a conspiracy to somehow humiliate and undermine me.
I did not want the unlawful acts conducted by the Executive Magistrates in the name of mobile court exercising judicial powers to arrest, taking an offender in custody and awarding sentence. In the schedule of the Mobile Court Act, 2009 new laws were included. Some provisions of the Penal Code, Madak Drabya Niyantran Ain (Narcotics Control Act), and some other offenses in the schedule, are not only unconstitutional but also contrary to the Code of Criminal Procedure and Masder Hossain judgment. These offenses are exclusively triable by tribunals and courts created by the Code of Criminal Procedure and special laws. For some offenses the penalty is death sentence, but the Executive Magistrates are trying them and were awarding two to three months’ sentence. I showed the Law Minister the illegal provisions included, and he was convinced but then he said that he had kept a file on his table for a quite long time despite pressure from the Executive to extend the powers of the so-called mobile courts.
The Principal Secretary and Janaprashasan Secretary met me for resolving the issue. I told them that the law was faulty, and it should be re-enacted by repealing the existing one. The Prime Minister, who has little elementary knowledge of law, wanted to know from me whether I wanted the judges to administer judicial works on the roads and added that some countries had expressed satisfaction with the outcome of this law. My only regret in my judicial career is that I could not get time to settle issues relating to this law after hearing the appeal although I had granted leave to examine this law. It is an affront to the judiciary and violative to the fundamental laws in its application. Consequently, the top-level officers who were transacting business of the government keeping close touch with the Prime Minister were unhappy with me. This obstructed me from concluding judicial reform work.
1. Civil Petition No. 2532 of 2014, Bangladesh v. Md. Abul Kalam Azad
2. Article 109 of the Constitution.
3. Article 108 the Constitution.
4. Articles 109 and 116 of the Constitution.