Independence of budget for judicial independence

A judge fainted in the courtroom in Jhenaidah. He had suffered a heatstroke. Junior officers of the adminstration cadre have air conditioned offices, yet the district judges do not.

The issue Supreme Court judges’ status is under trial. According to the previous rules, the rank of a district judge is equal to that of a deputy secretary. Deputy secretaries are provided loans to buy cars and also received a considerable sum for maintenance of the vehicles. But district judges get nothing.

Deputy secretaries have air-conditioned well-furnished offices. The district judges sit in the heat of their non air-conditioned offices.

Mobile courts are unconstitutional, but executive magistrates conduct these and receive an allowance for this. The admin cadre did not accept the 30 per cent special allowance proposed for judges in the latest pay scale. Judges received salaries as per the pay scale of 2009.

And now the government has proposed to slash the budget of the judiciary in FY 2019-20 budget. It is the lowest budget for the judiciary in the last one decade. A total of Tk 18.45 billion (Tk 1,845 crore) has been proposed for the judiciary.

Meanwhile, under-trial cases have increased to 4 million from 3 million. This will rise to 5 million in a year. Yet the Tk 1,845 crore allocation for the Supreme Court and the lower courts is lower by Tk 11. 87 billion (Tk 1,187 crore) that even that of the livestock and fisheries ministry.

The judiciary required increased logistics and personnel including judges. However, the new budget has not adjusted the inflation. The new budget will not be able to resolve the crisis of judges and other personnel of the judiciary. The judiciary is plagued with various problems including weak infrastructure. The government is unable to provide good salaries for the judges.

The judges lag far behind officials of the admin cadres when it comes to various facilities. They are discriminated against and deprived. And they continue to be so in the proposed budget of the new finance minister.

According to sections 24 and 25 of the Siracusa Principles adopted in the intercontinental conference of chief justices in 1981, ‘The judiciary will make its own budget.’ But the law ministry is making budget for the court avoiding, bypassing the High Court. This is unconstitutional.

Floating the concept of ‘independence of judiciary in independence of budget’, Israel’s Hebrew University professor Shimon Shetreet was lauded worldwide in 1982. As per his recommendation, the International Bar Association in its Delhi Declaration said the judicial administration will be run with sufficient funds jointly by the court and the executive organ.

According to the universal declaration of the conference of world justice in Montreal, ‘the court will mainly run the judicial administration. The ‘priority of the highest order’ of the state will be to provide sufficient resources’. But in Bangladesh, the Supreme Court functions implausibly and the High Court is silent regarding the budget of the lower courts.

The 7th UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan in August-September 1985 declared, among others, that it is the duty of each member state to provide adequate resources to enable the judiciary to properly perform its functions.

The Lusaka Seminar on the independence of Judges and Lawyers held in November 1986 stated that the judiciary must have a greater say in allocation of funds for the judiciary.  The executive shall ensure that the courts are adequately provided with judicial officers and supporting staff. The courts should, as far as possible, make use of the modern aids to simplify and accelerate court proceedings, and the government should provide, as far as possible, adequate funds for the judiciary for this purpose.

The International Commission of Jurists held a Conference on the Independence of Judges and Lawyers at Caracus, Venezuela in January 1989. It recommended certain basic principles. In implementing principles 7 and 11 of the Basic Principles, States shall pay particular attention to the need for adequate resources for the functioning of the judicial system, including appointing a sufficient number of judges in relation to caseloads, providing the courts with necessary supporting staff and equipment, and offering judges appropriate personal security, remuneration and emoluments.

LM Singhivi, pursuant to the UNESCO‘s proceedings referred to earlier, submitted his final report at the 38th session of the UN sub commission and referred to his draft declaration on the Independence and Impartiality of the Judiciary. It shall be a priority of the highest order for the state to provide adequate resources to allow for the due administration of justice, including physical facilities appropriate for the maintenance of judicial independence, dignity and efficiency; judicial and administrative personnel; and operating budgets.

Like other principles, there is a compulsion for Bangladesh to follow the Beijing declaration. The budget of the courts should be prepared by the courts or a competent authority in collaboration with the judiciary having regard to the needs of judicial independence and administration. The amount allotted should be sufficient to enable each court to function without an excessive workload. Unfortunately Bangladesh is defying international decisions and declarations.

Lower courts’ budget prepared by the administration and approved by the chief justice is sent to the parliament in many states of the US.

The Supreme Court of many states in the US monitors the construction of buildings. In a verdict of the Federal Supreme Court in 1980, the salary of the judges increased by 10 per cent. In 1989, USA congress increased salary of judges by 33 per cent in two years by formulating a law. The current government has increased salary of the judges significantly despite opposition. But they have not been able to entirely implement and continue it.

In the United Kingdom, the control of budget by the government has been treated as a threat to the independence of judiciary. Formulating laws in 1965 and 1992, the salary of the judges of the High Court was raised by 25 per cent and 19 per cent. The salary of senior secretaries and HC judges was equal for long. Currently a HC judge in England receives 185,000 pounds annually and a senior civil servant gets 150,000 pounds. Due to work pressure, judges are not very satisfied despite receiving higher salary more than the senior civil servants.

Posts of judges in Britain remain vacant. The meritorious lawyers of the bar are not interested in being judges. Around 40 posts have fallen vacant. The UK government is set to increase 13 per cent of the basic pay of the HC judges to bring the talented lawyers to the bench and the judges of the crown court and Upper Tribunal will be increased by 15 per cent.

Britian’s law minister said, “Judges are the pillars of our democratic society. Their experience brings business of hundreds of pounds in Britain. The people cannot get justice without them.” If our civil servants see that the salary of the judges has increased 13 per cent and their salary increased 10 per cent, we can only imagine the reaction. The salary of some top bureaucrats is more that the salary of the prime minister in England.

After amending the proposed budget, at least 2,000 judges should be recruited. Those who are in judiciary should be given all types of facilities equal as in the rest of the sub-continent. According to the pay commission report of the High Court, Modi’s government recently raised the salary of judges by 200 per cent. This will be changed in every ten years. The pay commission of the High Court in Bangladesh has turned dysfunctional.

*Mizanur Rahman Khan is a joint editor at Prothom Alo. This article, originally published in Prothom Alo print edition, has been rewritten in English by Rabiul Islam.