DHAKA: In any country the protection and enhancement of judicial independence is a pre-requisite for good governance and more so in a poor developing country like Bangladesh. The higher courts in developing countries generally appear to be conscious of their greater social role and tend to become judicially active.
In Bangladesh the Supreme Court is widely recognized and respected as the ultimate guarantor of citizens’ rights under the constitution. However, according to a study conducted by Transparency International (Bangladesh) in 1997, lower judiciary does not enjoy the general public’s confidence or respect.
The Dhaka High Court Bench of the Supreme Court, in an apparent display of its such social responsibility, has recently ordered withdrawal of all two-stroke engine-driven vehicles from Dhaka City by December next to make the capital pollution free.
In a public interest litigation, the High Court Bench has also directed the concerned authorities to convert all petrol and diesel-fuelled government vehicles into gas-fuelled ones. In the same order, it has ordered replacement of hydraulic horns in all buses and trucks by the legally prescribed ones within a month from the date of the judgment (i.e. by 28 April).
The public interest litigation was jointly filed by Bangladesh Environmental Lawyers Association (BELA) and Bangladesh Legal Aid and Services Trust (BLAST). In its 8-point judgment, the court has also directed the concerned authorities to establish ‘sufficient number’ of CNG gas stations in the city, ensure issuing fitness certificates for cars through computer check, supply of international standard fuel and cancellation of licenses of all nine-year old three-wheelers fitted with two-stroke engines. The order also includes giving wide publicity to the judgment in public interest through the mass media at least twice a week for one month.
The courts are part of the system of administration of justice anywhere. Effective and accountable policing is another. However, in Bangladesh, poor law and order situation reflects a deep malaise within the police and the prosecution service.
Judicial activism has been on the rise in the country for quite sometime, especially after the ouster of an autocratic government in 1990 and establishment of a democratically elected government.
While unfortunately, the country’s parliament has generally failed to hold the government accountable between elections because of the opposition’s refusal to attend parliament sessions, the Supreme Court has been showing an increasing readiness to issue court orders requiring the government to justify actions.
Analysts say a politically active judiciary is a symbol of the failure of democracy in the country. In other countries such as Italy and India it has already happened. In Italy, the magistracy had to take on the politicians to curb corruption and contain Mafia activities. Likewise, in India, judicial activism was more pronounced in practically all areas, from pollution control to communal tensions. The court judgment in the historic Babri Masjid is a case in point.
According to a recent study on politico-economic scenario in Bangladesh undertaken by the World Bank, the roots of this (judicial) activism appear to lie in the court’s growing willingness to order the release of individual detained under the country’s preventive detention act. In 1982, the court only freed 54 of the 1548 persons held under the act, by 1966, the last year for which figures are available, they ordered that 3376 of the 5413 detained individual to be released.
The assertion of judicial power now has extended beyond individual human rights cases. As per the World Bank study, the Appellate Division, the highest court of the country, ruled in 1995 that an NGO had a sufficient interest in the impact of a proposed flood action plan to bring suit on behalf of itself and those who would be displaced by the plan’s implementation. Since then, more than 30 major public interest litigation (PIL) cases have been brought in Bangladesh.
The study further says, in April 1999, perhaps the most far reaching case to date, the police were instructed not to arrest or detain a member of an opposition political party without first seeking the court’s permission. This was an extraordinary order by common law standards and it was only issued after the court found troubling pattern of police harassment. Other cases have arisen from government efforts to sell public land illegally to certain private interests, which the court has stopped.
