Separation of powers key to functioning democracy
For quite some time, a number of judicial initiatives of the Apex Court of Bangladesh pertaining to the protection of public interests and also to ensure the rule of law, thereby enhancing public trust in the supreme judiciary, has attracted admirable attention. Such initiatives must not be surprising as the judiciary is, without doubt, the principal guardian of public liberty. One has to note that public liberty cannot be durable and meaningful if the administration of justice is, in some degree, not separated from both legislative and executive power.
The worrying question is why the executive branch is faltering and failing too often in its assigned functions, thereby compelling the judiciary to intervene in matters that should have been lawfully and expeditiously disposed of by the executive authority in the first place. Take for example, the very recent case of the unconditional apology of the Deputy Commissioner of Sylhet to the High Court for not complying with its order over giving permission to the highest bidder for extraction of stones from the Lava River in the district. It is intriguing as to why the Deputy Commissioner of Sylhet did not comply with the High Court order from October 1, 2020 to award the work of stone extraction to the highest bidder, thus clearly exposing him to a charge of contempt of court. This action of the executive is a deliberate flouting of judicial authority.
With regard to preventing environmental degradation, the Apex Court's proactive intervention merits special mention and here, once again, the executive authorities failed in their statutory functions. The High Court recently directed concerned authorities to immediately shut all the illegal brick kilns in Chattogram and submit a report after complying with the directive. It is pertinent to note that the High Court bench came up with the directive following a petition filed, bringing contempt of court charges, against two Executive Magistrates for not complying with its order over shutting down the illegal brick kilns at Chandanaish and Lohagara upazilas in Chattogram. It is frustrating to note that a clear and explicit judicial order to shut down illegal brick kilns, with a view to saving an already precarious environment, was callously and deliberately flouted by supposedly responsible executives. The point to note is that the prevention of environmental degradation is primarily within the executive domain, and the district administration and the Department of Environment have failed in their statutorily entrusted task.
The High Court's salutary public-spiritedness in protecting our rivers from unscrupulous individuals and insensitive institutions needs to be recognised. Justice Jinat Ara of the Supreme Court observes that "In our country, perhaps, the River Buriganga, Turag, Shitalakshya and some other rivers would have been non-existent unless judgments were passed by both the divisions of the Supreme Court to protect all the rivers of the country… Therefore, it is not only the duty of the Deputy Commissioner of the district, the Department of Environment and other concerned authorities but of all the citizens of the country to protect and preserve the natural source of water like rivers, etc from any encroachment upon the rivers, as well as to prevent pollution of water of the rivers". It is also heartening to note that in recent times, the High Court, in a landmark judgment, accorded a legal entity status to the rivers of Bangladesh, thus stabilising its officially recognised position. The import of this judgment, in so far as the protection of public interest is concerned, cannot be lost sight of.
The Apex Court's directive to pull up arrogant and deviant executives rightfully deserves mention. The unconditional apology of the Superintendent of Police, Kushtia before a High Court bench for gross misbehaviour with a judicial magistrate, who was enquiring into complaints of election irregularities, brings into sharp focus the necessity of checking and taming executive highhandedness. In this instance, it is also quite baffling to see a Senior Police Officer obstructing and harassing a judicial functionary in his official duties, when in fact it was the former official's job to prevent election irregularities and to cooperate with the judicial magistrate in such matters.
There is no denying that good governance becomes a reality when harmonious functioning of the legislative, judicial and executive organs reach the desired balance in a democratic society. Unfortunately, this has not been the experience in many countries, including Bangladesh. As a commentator very aptly observes "Past experience has shown that at least the executive organ was largely responsible for upsetting the balance with the higher judiciary, with the parliament remaining a silent spectator".
If we want to strengthen our democratic credentials, we have to learn to subordinate ourselves to judicial wisdom and oversight.
Muhammad Nurul Huda is a former IGP of Bangladesh.