Md Abdul Matin is a retired justice of the Appellate Division of the Supreme Court. He talks with Prothom Alo on the environment in the Supreme Court, case backlogs and independence of the judiciary. Sohrab Hassan and Monzurul lslam took the interview
Lawyers hold demonstrations and processions on Supreme Court premises. An untoward incident took place in the courtroom recently. Later the Appellate Division asked pro-BNP lawyers not to hold a procession in the court premises, referring to a High Court order in 2005. You are one of the two judges who passed the order in 2005. Pro-Awami League lawyers, the opposition party at the time, continued demonstrations in the court defying the order. They have taken an opposite stance now. How do you see this matter?
That case in 2005 was a suo moto rule. The High Court issued a ban on rallies and demonstrations in the Supreme Court premises. Such bans were slapped in different countries in the world, especially in High Courts in different states in India, to uphold the environment of the courts. Although the verdict was written by me or by any other judge, the verdict is of the High Court division of the Supreme Court. As final hearing on the case did not take place or the Appellate Division did not quash that verdict, it is the verdict of the Supreme Court and thus adhering to it is mandatory for all. In order to uphold the environment of the Supreme Court, I think that the judgment should be followed now as much as it should have been followed in the past.
A judge of the Appellate Division recently said they are ‘oath-bound politicians’. Another judge made remarks about the election. The pro-opposition lawyers vehemently protested these remarks and demanded resignation of the judges. What is your opinion on the remarks of the judges and subsequent reactions from the lawyers?
Any judge can make a personal remark outside the court. And the lawyers can also show their reaction if aggrieved. Such remarks are personal. Freedom of expression of individuals is guaranteed by the constitution.
The government often claims the judiciary is fully independent. But a recent report of the law commission said the independence of the judiciary remains elusive. Why is such a question on the independence of judiciary arising?
The matter is relative and depends on the perspective of individuals. If the law commission made such an observation, the issue should be dealt with due importance. Perhaps the law commission gave their opinion under the existing reality. The Supreme Court is the creation of the constitution. The judiciary cannot be deemed independent at all as long as the article 116 of the constitution remains in place and the control including the power of posting, promotion and discipline of the judges of lower courts remain vested in the president and not the Supreme Court. Perhaps the law commission made its observation in this light.
The report of the law commission mentioned that the number of under trial cases up to last December was around 4.2 million. The inadequacy of judges is blamed for such huge case backlogs. While such a backlog was already there, a huge number of ‘fictitious’ cases were allegedly filed against opposition political activists in recent years. Is there any possibility of doing away with the case backlog if such a practice continues?
Disposal of cases doesn’t just depend on the number of judges. The quality of work of the judges, their punctuality and overall environment of the judiciary also contribute to disposing a case. The case backlog won’t just go away with an increase in the number of judges. ‘Fictitious case’ are contradictory to the constitution. The High Court and Appellate Division in the verdict in BLAST (Bangladesh Legal Aid and Services Trust) vs Bangladesh case passed a judgment that sections 54 and 167 of CrPC are contradictory to the constitution. The court also gave some observations so that the provisions of arrest with warrant and remand are not misused. As per the verdict, any part of all civil laws which contradicts with the constitution is deemed as unconstitutional. The court can take proper action against ‘fictitious’ cases if it wants.
The opposition parties often claim that the government or executive branch control the judiciary. In support of the claim, they raise questions about the procedure of cases filed against the opposition leaders. What is your take on this allegation?
I’ve already said that the judiciary cannot be fully independent as long as Article 116 remains in the constitution. No branch of the government can control other branches as per the constitution. The legal process is controlled by laws. The court itself will take corrective measures if any mistake is made by the court. No court is flawless. But in every country the verdict of the apex court is deemed final. It is not that the verdict is ‘final’ because it is ‘flawless’, rather it should be considered ‘flawless’ as the process or decision is ‘final’.
The court is considered the last resort of the people. But the role of the court has given rise to many questions in recent times. Can past political involvement of any judge influence trial proceedings?
Judges are recruited on political or partisan consideration in other countries too. For example when Democrats are in power in the US, they recruit liberal or progressive lawyers as judges while Republicans pick conservative lawyers. The judges of these countries maintain professionalism. It is not appropriate if any judge is influenced by his past affiliation with politics after taking oath.
The US imposed a new visa policy for a fair election in Bangladesh. The visa policy includes the judiciary alongside administration and law enforcement agencies. The judiciary has no direct link with the election. So why was the judiciary was included in the visa policy?
Visa policy is the internal matter of the US. It depends on a certain country as to whom they will give a visa and whom not. But including our judiciary in the visa policy is regrettable. We expect that our judiciary will uphold the interest and dignity of our interests and the judges will adhere to their oath.