Eden Building to Stock Exchange

Published:  01:13 AM, 10 September 2017

Powers, limitations and challenges of chief justice

The changing role of the courts was described as follows by Chief Justice McLachlin of Canada at the 10th Common-wealth Law Confere-nce, Cyprus, 1993: The necessary concomitant of the increasing insistence on human rights and the new social face of the law is an independent judiciary, ready and able to review a wide range of government action.

While the legislative and executive branches of government have an important role to play in supporting human rights, the difficult burden of interpreting the rights and maintaining them in the face of governmental intransigence if need be rests on the shoulders of the courts. Even the law-making role of the judge has dramatically expanded" and now consisted of "invading the domain of social policy, once perceived to be the exclusive right of Parliament and the legislatures."

In a judgment in Ruffo v Conseil de la Magistrature, [1995] 4 S.C.R 267, the Supreme Court of Canada held that a large part of a Chief Justice's role in maintaining a high quality system of justice was defined gradually over the years, in the same way as judicial precedents.  Powers were derived from judicial tradition.  The supervisory powers conferred on a Chief Justice were derived from general practice and gradual developments over time.

The policies and procedures instituted by the Chief Justice can have a profound effect on a court's performance and the public's perception of that performance.  The challenges for Chief Justices are many and varied.  They must be scholars, administrators, communicators and leaders.  They must uphold standards of conduct and ethical behavior, in themselves and their judges.  They must be able to work with government but at the same time keep their distance so that no one can accuse them of being either controlled or influenced by political connections.  They are the face and voice of the court.

The effective management of court resources can lead to greater expedition in the resolution of cases.  Inefficient management and utilization of resources will lead to cases of long duration and an increasing backlog of cases.  The point is that the Chief Justice must be concerned with issues of efficiency and the quality of service provided to the public.  

Today a Chief Justice is also the chief executive officer of the court.  The courts are a vital institution in modern society and it is the Chief Justice who must accept responsibility for that institution.  A Chief Justice must foster a culture of excellence.  The Chief Justice's role can no longer be described as simply first among equals.  Thus, the burden falls on the Chief Justice to move the institution forward while maintaining proper relationships with government, the Bar and the public.

A Chief Justice has a special role as one of the leader of the three organ of statecraft. S/he is a leader by virtue of historical development and moral authority, as supplemented by enabling legislation, and by virtue of his or her special role relating to the co-ordination of the activities of the court, its internal management, and to safeguarding standards of judicial ethics and practice.

The Chief Justice sets the direction and tone of the judicial system.  S/he is the public face of justice.  A strong and able Chief Justice can personify the independence of the judiciary and exemplify that independence in the conduct of judicial proceedings in his or her court.  A weak Chief Justice, however, will undoubtedly have a debilitating effect on the other judges and detrimentally affect the public's trust and confidence in the justice system.

A Chief Justice is a symbol and image of judicial system. He can play the most powerful and effective form of leadership occurs when the leaders lead by example.  And, with his personal qualities, conduct and image that a judge, and particularly a judicial leader, projects affect the image of the judicial system as a whole, and therefore, the confidence that the public places in it. There may be individualistic concentration of power and a character-driven presumption against its abuse is a question of concern in different countries.

A Chief Justice certainly must have a significant moral authority and is viewed by the public generally as the voice of the judiciary.  The Chief Justice sets the direction and tone of the judicial system.  A strong and able Chief Justice can personify the independence of the judiciary and exemplify that independence in the conduct of judicial proceedings in his or her court. 

The Chief Justice, therefore, takes his colleagues on board and a unique responsibility not shared by the other judges of his or her court for their support and active participation. A weak Chief Justice, however, will undoubtedly have a debilitating effect on the other judges and detrimentally affect the public's trust and confidence in the justice system.

S/he is the public face of justice.  The Chief Justice John Doyle of South Australia (Judicial Conference of Australia, April, 2001): If the public do not understand these things, can we really expect the public to value them and to support them if they are under threat?  If the public do not understand the workings of the judiciary, can we assume their confidence in the judicial system when others challenge that confidence, depict the system in a way that might undermine confidence or when decisions are made which might test that confidence?

The International Summit of Chief Justices and Senior Justices of the Asia-Pacific Region, held in Istanbul in November 2013, issued a declaration on transparency in the judicial process. Among the principles enunciated in that declaration was that the judiciary should initiate and support appropriate outreach programmes designed to educate the public on the role of the justice system in society.

Today, there is greater responsibility on the judiciary, and primarily on Chief Justices, to inform the public about the court's role and function as the guardian of the public interest and the rule of law.Chief Justice of Court use to manage the relationship between the court and the government.  It is also the Chief Justice who has responsibility for the internal management of the court. 

Bangladesh constitution under Part VI Chapter one and Article 94 to 117 Article elaborate the responsibility and authority and formation of the Court. It has given some description of power and authority of the Chief Justice. Few clues, much less commands, about the appropriate scope of the Chief Justice's powers are provided by the Constitution itself. Probably no major constitutional office is as textually unspecified in any jurisdiction.

Most of the powers of a Chief Justice will not be found in legislation but in tradition, constitutional theory and the conventions of the office. The absence of detailed legislation permits the Chief Justice to emphasize his or her independence from government and the legislative branch. 

Power is not constrained by anything that looks like formal law. This lack of specific statutory stipulations is noteworthy in several respects.  First, it provides the office with considerable flexibility, enabling it to evolve with the personality, strengths and interests of the person holding it.  S/he exercises in her/his adjudicative and extrajudicial roles are in fact quite similar in their most crucial aspect-- both entail the application of official discretion to a discrete problem, with a particular set of alternative choices.

It is observed that the lack of extensive statutory regulation of the function of Chief Justice is of great significance because it allows the Chief Justice to determine in large measure the scope of his or her office, in accordance with his or her own judgment, energies and abilities. Thus, as an administrator may strengthen the structure of the court and streamline its procedures. Significant aspects of the Chief Justice's discretionary authority are currently unconstrained by any collective structure or reason-giving obligation.

Unfortunately, in every developing country including Bangladesh, of the three branches of government, the judiciary is the weakest because it depends on the other two branches of government to pay the salaries of judges and to provide the necessary infrastructure for an effective court system. 

On the other hand it has been observed that judiciary is performing well then other two organs in Bangladesh. In reality a constructive working relationship must exist between the judiciary and the other branches of government if the public is to have meaningful access to justice.  And the Chief Justice has the lead role in creating that constructive relationship.

The Chief Justice has a crucial role to liaison with the government.  S/he cannot ignores the need to develop a working relationship with government will only see his or her court resources suffer as a result.  A developing area of responsibility for Chief Justices is that of being the public face and voice of the court.  Many modern Chief Justices are coming to the view that, if they have a responsibility to uphold judicial independence and to act so as to enhance public confidence in the judiciary, then surely that obligation extends to communicating with the public to explain the court's procedures and the principles under which it operates.

The past few decades has seen a formidable increase in judicial powers, particularly regarding judicial review of legislation, and an ever-growing involvement of the courts in the resolution of social issues.  The human right embodied in the constitution and the perceived inability or unwillingness of the legislatures to deal with controversial social issues given further responsibility to the judiciary to address the issues and to play a much more significant role in shaping the life of the community. 

The court has limitation of interaction with government, people and media on any decision of the court but due to freedom of expression and free media other can express their re-action and even interpret the verdicts with their perception and wisdom. Malaysian Higher Court has unique example for better communication with the citizen. "Corporate Communications Office" managed by the office of the Chief Registrar of the High Court to office plans, designs and executes programs and activities to increase public awareness of the court's role in the community. 

The International Commission of Jurists (ICJ) has few studies in South Asia (2013) namely "Authority without Accountability". One of the ICJ study assesses the Supreme Court's efforts in Pakistan to bring accountability to a government and military that have long failed to protect and respect the rights of millions of people in Pakistan. The Chief Justice, during 8 years of tenure, Iftikhar Muhammad Chaudhry has helped transform the Supreme Court of Pakistan into a robust institution capable of exercising its power independently and impartially, safeguarding the Constitution and acting as a check on the power of other institutions of the State.

One of the Supreme Court's main tools in this regard has been the rare authority to exercise its 'original jurisdiction' to hear important matters relating to human rights, even on its own initiative (suo motu jurisdiction), as granted under Article 184(3) of the Pakistan Constitution. Justice Chaudhry is considered as a rare example of Chief Justice in the developing countries like Pakistan where other two organ and the "forth organ", the military has dominating role in affairs of the nation.

The recent development after verdict scraping 16th Amendment of constitution by the Supreme Court in Bangladesh has created a situation to evaluate the communication between court and people and other two organ of the state- the legislature, administration with judiciary. The Chief Justice S. K. Singha can take a proactive role utilizing the discretionary authority and resolve the confusion among the people and the government.

The writer is a Legal Economist.  E-mail: mssiddiqui2035@gmail.com

Leave Your Comments

Latest News

More From Editorial

Go to Home Page »

Site Index The Asian Age