Barrister Tureen Afroz

INDEPENDENCE of judiciary is no doubt a cornerstone of democratic practice all over the world. In Bangladesh, demand for judicial independence in practice has been a much-debated issue among policy reformers, democratic philosophers and legal academics for a long time. Many a people have raised this issue at various national levels and demanded a positive change to ensure independence of judiciary at the earliest.

Article 35(3) of our Constitution provides that "Every person accused of a criminal offence shall have a right to a speedy and public trial by an independent and impartial court or tribunal established by law." In other words, the said Article guarantees a fundamental right to every criminally accused person in Bangladesh (whether citizen or not) to have a 'speedy and public trial' by not only an 'independent judiciary' but also an 'impartial judiciary'. The question then arises, whether the terms 'Impartiality' and 'Independence' have similar meaning. Can we substitute one for another?

The landmark decision of Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82 was determined on the issue of how far the Constitution of Bangladesh has actually secured the separation of judiciary from the executive organs of the State and whether the Parliament and the Executive have followed the Constitutional path. In essence, the case was decided on the issue of how far the independence of judiciary is guaranteed by our Constitution and whether the provisions of the Constitution have been followed in practice. The court identified 5 (five) conditions of judicial independence:

Security of judicial tenure; Security of judicial salary; Institutional independence of subordinate judiciary; Judicial appointments by separate Judicial Service Commission; and Administrative independence and financial autonomy of judiciary.

However, in delivering judgment, the court in Masdar Hossain case did also try to differentiate between the terms 'independence' and 'impartiality' and said obiter that they would subscribe to the view of the Supreme Court of Canada in Walter Valente v Her Majesty the Queen (1985) 2 RCS 673.

Walter Valente held that "the concepts of 'independence' and 'impartiality', although obviously related, are separate distinct values or requirements. 'Impartiality' refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. 'Independence' reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status or relationship to others … particularly to the executive branch of government …"

Now, expectation of common men is not only limited to have an independent judiciary but also, to have an impartial one, which will administer justice rationally being free from fear or force. As a matter of fact, the independence of judiciary and the impartial judicial practice are related concepts, one cannot sustain without the other. What is the point of having a judiciary, which is though independent but fails to appreciate the notion of impartiality or vice versa, can judiciary practise impartiality if it is dependent on other bodies of the government? In both the situation, the end-result is bound to be the same - miscarriage of justice.

The art of practising impartiality does not develop overnight rather it results from understanding, appreciating and acknowledging the moral values, ethics and professional responsibility over a considerable period of time. It is basically a question of developing an attitude.

Let us look at our judiciary. The people at the bench are not from different planets. They are individuals whom we expect to practise impartiality in administering justice without being pressurized by any restriction, influence, inducement, threat or influence. Now we cannot appoint somebody as a judge today and expect that from tomorrow morning s/he would be impartial in her/his belief, thought, conscience and practice, unless s/he has learnt to value those virtues at some earlier stage of her/her life and profession.

The vast majority of our judges and judicial officers are appointed from either the members of legal profession with long professional standing or the law graduates by way of judicial service examination intake.

Now let us find out how much integrity of character or independence of judgement is possessed and practised by an average member of our legal profession or an average law graduate of our country. Do they get any systematic training during their process of making to build up a state of mind or attitude whereby they become committed to uphold the moral and ethical values and thus, the rule of law? Or in other words, how much concern, if at all, are our legal professional bodies and the legal education system to produce a lawyer or a law graduate who would never fail to appreciate the ethics in law?

Unfortunately, the existing legal education institutes of our country do not teach its graduates the ethics or professional responsibility. There is no conceptual framework that to be a good lawyer a student needs to learn and develop good ethics and as such, there is no subject called legal ethics in the official curriculum of any of the law degree of our country. One can always argue that the legal education institutes do not produce professionals but academics. If that is so, then the total responsibility shifts on the professional bodies (such as the Bangladesh Bar Council, Bar Associations, the Judicial Administration Training Institute etc.) to ensure that their members, before joining their respective profession, go through a proper system of training where they are carefully introduced to the issues of legal ethics and professional responsibility. As per Rule 10 of The Bangladesh Legal Practitioners and Bar Council Rules 1972, the functions of the Bangladesh Bar Council includes, inter alia:

to admit persons as Advocates on its roll; to hold examinations for purposes of admission; to remove Advocates from such roll; to lay down standard of professional conduct and etiquette for Advocates; to entertain and determine cases of misconduct against Advocates on its roll and to order punishment in such cases; to promote legal education etc.

Under the current policy of the Bangladesh Bar Council, every person shall, before being admitted as an Advocate, pass a written examination, viva-voce and a vocational training course of approx. 7 weeks. The syllabus for the written examination for enrolment does include a topic, "Rules of Professional Etiquette" which is examined by assessing a candidate's knowledge on Bangladesh Bar Council Canons of Professional Conduct and Etiquette.

These Canons were framed in exercise of the power conferred on the Bangladesh Bar Council by section 48(q) of the Legal Practitioners and Bar Council Act 1965 and are crucial for any legal practitioners of Bangladesh as they (Advocates) are expected to discharge certain high duties in the society. In Bangladesh, the Advocates are expected to be role models of "integrity, imbued with the spirit of public service and dedicated to the task of upholding the rule of law and defending at all times, without fear or favour, the rights of citizens." Hence, Canons of Professional Conduct and Etiquette set out an Advocate's duty towards the Court, his/her clients, colleague advocates and towards the public generally. Therefore, as per Bar Council Enrolment Examination Policy, every candidate is expected to be familiar with these canons and is examined by way of answering a given hypothetical problem of ethical conflict situation. But this is simply not enough to ensure the target result of having an overall ethical and professionally responsible legal profession because -

There is no system or institute to provide tutorials to explain or discuss the issues of ethics and professional etiquette to the aspiring candidates. Therefore, the candidates take preparation for the written exam on their own. The utmost need for popularising legal ethics and basic professionalism cannot be treated so callously.

The materials on legal ethics provided and suggested to the candidates are insufficient. The candidates are provided only with the bare rules, no explanatory notes or case references are attached or suggested. Therefore, there is no way that an average candidate can develop a critical mind while reading through the words of the ethical rules. The candidates are not examined as to whether they are familiar with the different grounds for which they can be disqualified for admission to be an Advocate. Also, no materials are provided regarding actual cases of disqualification in the previous years. If provided, that would definitely make the new Advocates aware of their professional responsibility and accountability right at the beginning of their profession. The candidates are not examined on their knowledge of disciplinary proceedings of Bar Council. No materials are provided as to explaining to the candidates when they can be found guilty of professional or other misconduct. They also do not get to refer to previous decisions of the tribunal or court to find out different incidences of professional mal-practices, for which they can be reprimanded, suspended or even removed from practice or struck off the roll. Therefore, the new entrants to the legal profession remain totally unaware of the required standard of their profession. It is also worth mentioning that though the candidates answer a question on legal ethics in the written examination, there is no way to know whether they have written the right answer or not, once the result is published. Therefore, there is a danger that the candidates might fail to realize the importance of being professionally ethical, once they enter the profession.

However, the current policy of the Bangladesh Bar Council is that, every successful candidate (i.e. who have passed the written examination and viva-voce), would need to go through a compulsory training course known as Bar Vocational Course (BVC) to get a Call to the Bar and the 'certificate'. The BVC is conducted by the Legal Education and Training Institute (LETI) of Bangladesh Bar Council.

Within a span of 7 weeks, the students of BVC have approximately 80-84 classes and unfortunately, only 3 classes (each with approx. one hour duration) are allocated to have a discussion on the topic of Professional Ethics. The discussion is of general type and there is no specific syllabus available for those sessions. It is very disappointing to note that this is the first time (and perhaps the only time) the newly entrant Advocates get a chance to have a discussion on the most sensitive issue of their profession and that does not get proper weightage in their training mechanism. The necessary link is that every practising Advocate of today is a potential Judge of tomorrow. The increasing un-professionalism among today's lawyers is indeed a matter of great concern for all of us. Therefore, to secure impartiality at the bench, we need to maintain a pool of lawyers who are professionally and ethically duty-bound, who are responsible and accountable not only to their clients but also to the court, colleagues, members of the public and above all, to their own noble profession.

Let us now turn to the training mechanism of the Judicial Officers of this country. With the advent of new ordinance, it is expected that there will be a new Judicial Service Commission, which would be responsible for the appointment of the Judicial Officers. Like before, most probably the minimum required qualification would be a law graduate. As I have already pointed out that the issues of professional ethics are not introduced in the law courses of this country, this has to be covered up during the training period of the newly appointed Assistant-Judges and other post-appointment professional training schemes. As per Judicial Administration Training Institute Act 1995, the Government of Bangladesh has set up a Judicial Administration Training Institute (JATI) to arrange for training of persons appointed in the judicial service, lawyers and some other professionals connected with the judicial system in order to increase their professional efficiency.

Under its current training policy, the Judicial Administration Training Institute (JATI) runs a 60 Day Basic Course for newly appointed Assistant Judges, 21 Day Courses (and sometimes, 3 day short courses) for Senior Assistant Judges, Joint District Judges and District Judges. It is again unfortunate that the curriculum for the "Basic Course" does not have any module on ethics or professional responsibility. However, the curriculum for Judicial Administration Training Course for the District and Session Judges do have a module on "Judicial Ethics and Code of Conduct of Judicial Officers".

Nobody can deny that there is a need for the development of an ethical framework in our entire legal and judicial arena. For the long time benefit of the society, in general and the legal and judicial professions, in particular, there is no other alternative but raising the conscience of our legal and judicial professionals with regard to ethics, professional responsibility and accountability. 'Impartial Judiciary' is not a fancy dream but a constitutionally guaranteed fundamental right of every person of this country. Though, in reality, it is a long way to go, we can nevertheless initiate our journey by: introducing subject like "Legal Ethics and Professional Responsibility" in various Law Degrees of Bangladesh because teaching law to students without a moral framework denies them the opportunity to develop healthy personalities (as adopted in all most all LL.B degrees of Australia); giving more importance to the topic of 'ethics and professional responsibility' in the Bar Council Enrolment Examination (as adopted in the enrolment examination of legal practitioners of the Supreme Court of New South Wales) ; arranging regular seminars and workshops on ethical issues by different Bar Associations; members of the Bar as well as the Bench can participate in those seminars (as arranged by the Bar of England and Wales); making regular publications on popularising the ethical values among professionals; giving more importance to the topic of 'ethics and professional responsibility' in the Judicial Service Examination; giving utmost priority to the issues of ethics in the Judicial Training Schemes of the country. We have to keep in mind that in an adversarial system, like that of ours, Judges are expected to play the role of an "impartial" umpire. Moreover, only an 'impartial judiciary' can guarantee a proper administration of justice to meet the ends of Article 35(3) of our Constitution.

By ensuring judicial independence from the executive organ of the government, we are, no doubt, in a position of installing a better democratic system in our society, but there still remains a grey area as to how efficient this system would work if the players and the operators of this system are not motivated enough to make it work. Therefore, if 'independence of judiciary' from the executive organ is the first step, let securing 'impartial judiciary' be the next one.

September 09, 2001 Published at Daily Star, Dhaka