“Only
Separation of the Judiciary from the Executive is not Enough to Ensure the
Independence of the Judiciary in Bangladesh”
Introduction:
Independence of judiciary from
the executive is certainly a foundation stone of justice, good governance, rule
of law and democratic practice all over the world. It protects in case of any
oppression the weak from the powerful, the poor from the rich, the minority
from the majority and even the citizens from the excesses of Government.
However, from time immemorial in Bangladesh the independence of judiciary was a
debated issue among the political thinkers, policy reformers, and legal
practitioners. In spite of the independence of judiciary in Bangladesh the
present judicial system is just a replica of the system introduced by the
British rulers and all ruling regimes of the early historical period. Pakistan
always attempted to control the judiciary through different mechanisms which
include appointment, tenure and discipline of judges. Therefore the practice of
executive interferences over judiciary is still continuing in Bangladesh. Judicial independence functions to set
out and also protects political rights, civil liberties and also the rule of
law. As such, the three pairs of components are ought to be existed and
balanced, in which the first pair of the component is the utility and
efficiency. For this, courts must be useful to the society and must be efficient
in all their conducts. In terms of utility, they must justly punish crimes,
protect civil liberties and fairly resolve disputes. While in terms of
efficiency, they should not cause waste and delay as these will lead to
diminish of political support. The next pair of the component is the insulation
and accountability.
This indicates that the court has to be insulated from the
politics of the other bodies which are the executive, legislature and political
parties and at the same time not being influenced by any social and economic
power. Besides, certain form of accountability should also contain in the
court, this is because insufficient of accountability will erode public support
towards the courts and encourages other political branches in attempting to
exercise control so as to compensate for the lack of accountability. The last
pair of the component will be the authority and restraint. This pair of
component concern on the power of the courts. Courts must hold the judicial
authority of the government and the ability to enforce their decisions and
orders. The proper and correct incorporation of judicial authority in fact
stabilizes and makes others institutions appear to be more resilient. The court
must also at the same time be restrained and must have self-imposed limits on
the ability to act for executive or legislature would not long permit
limitations upon their own powers in the face of an unrestrained court system.
We have already experienced that to what extent these elements exist in the so
called independent judicial system of Bangladesh. So, at the very first stage
we may admit that only separation of the judiciary from the executive is not
enough to ensure the independence of the judiciary in Bangladesh.
Chapter1: Concept of
Judicial Independence
(A). Independence of judiciary: Meaning,
principles and Essentials:
In a democratic
state, the power rests on three separate organs, namely the executive, the
legislative and the judiciary. [1]At
the Tenth Commonwealth Magistrates’ and Judges’ Conference at Victoria Falls,
Zimbabwe, 22-26, Anthony Allot, the learned professor, unhesitatingly exposed
as to how the Judiciary even in the most advanced democratic countries, such as
the United Kingdom, suffers from embarrassing obstacles against preserving and
upholding independence.[2]
Bangladesh is no exception to Professor Allot’s exposition as it
extremely faces perceptible and imperceptible obstacles in ensuring rule of law
in the society. Meaning of Independence of Judiciary: The judiciary could not
perform its solemn duties unless its independence is guaranteed and protected.
As underlined in the UN document of Basic Principles on the Independence of the
Judiciary and in a number of authoritative instruments of global or regional
relevance ( such as the Beijing Statement of Principles of the Independence of
the Judiciary, the Universal Charter of the Judge, and The Latimer House
Guidelines), the “formal requirements” of independence of the Judiciary, be it
Higher or lower, include constitutional endorsement of its financial,
functional and institutional independence, safeguards against partisan and
improper judicial appointments, security of the Judges’ tenure, their adequate
remuneration and suitable conditions of service and prohibition against post-retirement
recruitment.[3]
Professor Allot defines judicial independence as ‘protection or immunity from
improper or unlawful influences, direct or indirect, on the way in which the
judicial officer carries out his judicial functions’.[4]
Independence of judiciary means a
fair and neutral judicial system of a country. This can afford to take its
decisions without any interference of executive or legislative branch of
government. Taking into consideration some of the recent discussions made in
the Beijing Statement of Independence of the Judiciary (a statement resulting
from the cumulated views of thirty-two Asian and Pacific Chief Justices)
Judicial independence is defined, in this report as a Judiciary uninhibited by
outside influences which may jeopardize. The neutrality of jurisdiction, which
may include, but is not limited to, influence from another organ of the
government (functional and collective independence), from the media (personal
independence), or from the superior officers (internal independence).
Independence of judiciary truly
means that the judges are in a position to render justice in accordance with
their oath of office and only in accordance with their own sense of justice
without submitting to any kind of pressure or influence be it from executive or
legislative or from the parties themselves or from the superiors and
colleagues. The concept of judicial independence as recent international
efforts to this field suggests, comprises
In other words,
Judicial independence is the independence from outside influences which may
jeopardize the neutrality of jurisdiction, which may include, but is not
limited to, influence from another organ of the government (functional and
collective independence), from the media (personal independence), or from the
superior officers (internal independence).[5]
Principles of Independence of the Judiciary:
The concept of
judicial independence includes four basic principles, which have been suggested
and recognized through international efforts in this field. These principles
are:
a. Personal
independence;
b. Substantive
independence;
c. Internal
independence; and
d. Collective
independence.
The followings
are the elaborated version of these four meanings of judicial independence.
a. Personal independence:
Personal independence means that judges are
not dependent on government in any way in which it might influence them in
reaching decisions in particular cases. Personal independence signifies that
the tenure of judges and the terms and conditions of their service are
“adequately secured, so as to ensure that individual judges are not subject to
executive control”.
b. Substantive
independence:
Substantive independence refers
to the functional or decisional independence of judges to arrive at their
decisions without submitting to any inside or outside pressure. It is connected
with the determination of the finding of fact and the application of the
relevant legal norms to the facts of the case. The substantive independence of
judges requires that in performing all the administrative, procedural and
substantive duties a judge should be free from any direct or indirect
interference, improper influence or pressure.
c. Internal
independence:
Internal independence means independence of
judges from their judicial superiors and colleagues. It refers to, in other
words, independence of a judges or a judicial officer from any kind of order,
indication or pressure from his judicial superiors and colleagues in deciding
cases. In this regard, the Montreal Declaration 1983 provides: In the decision
making process, judge shall be independent vis-a-vis their judicial colleagues
and superiors. Any hierarchical organization of the judiciary and any
difference in grade or rank shall in no way interfere with the right of the
judge to pronounce his/her judgment freely.
d. Collective
Independence:
Collective independence means
institutional independence, which is connected with responsibility for the
effective operation of the judiciary as an organ of government. In its easiest
form, judiciary as an institute must be free from interferences of the
executive or the legislature. Financial autonomy of the judiciary is also
related to the concept of collective or institutional independence. If the
judiciary as an institution depends on the executive, the legislature or other
institutions for its operation, this may affect the performance of judicial
duties by individual judges. Judicial Of these four types of independence of
judges the substantive independence is the most important because it is the
inner strength of the judges that provides the steering-force for them to
maintain their impartiality in discharging judicial functions. So, the
substantive independence is considered as a cardinal virtue of judges to
maintain impartiality in administering justice.
Some other points:
a. Appointment of
Judges:
In all cases the head of the
state is invariably empowered by the Constitution to appoint the Chief Justice.
But the method of appointment of judges varies. In some countries judicial
appointments are in the hands of the head of the executive branch after
considering the Chief Justice's advice (except for the appointment of Chief
Justice). In federal systems, judges of state high courts are appointed by the
head of the executive on the advice of the state Governor, Chief Justice of the
supreme court, and Chief Justice of the respective high court (except for the
appointment of the chief justice). In some other countries, there are judicial
service commissions upon whose recommendations judicial appointments are made
by the head of the executive (except in the case of the Chief Justice, whose
appointment is made by the head of the executive on his own). The idea is to insulate the appointment
process from the touch of the executive hand and from political consideration.
But this system is also not perfect. Much depends upon the composition of the
judicial service commission. If the commission is executive controlled then the
justification for its establishment disappears.' On the other hand, if the
commission is under the control of judges, some undesirable features may
develop. It may enable "the judiciary to be self-perpetuating and will
result in emphasis of its elitist class character. It even permits judicial
nepotism.[6]
It may be seen that appointment of judges is an executive function but proper
checks and balances are provided. Firstly, appointments are to be made in consultation
with the chief justice, governor, or judicial service commission. In some
jurisdictions, the head of the executive can act only on the advice of the
cabinet.' Second, clear rules governing qualifications, professional experience
and training, and caliber of persons appointed to the bench are embodied within
the constitution.
b. Security of Tenure:
It is important to insulate
judges from pressure during their tenure of office so that they can act
impartially and without any fear of reprisals. Most of the constitutional
states therefore prohibit arbitrary removal of judges by the executive.
Practically all constitutions stipulate that judges cannot be removed from the
office except for proven misbehavior or incapacity, and only by following the
procedure prescribed by the constitution. In some countries, judges hold office
during good behavior and can only be removed on an address from Parliament. In
others, a judge can only be removed after an inquiry and report by a tribunal
especially appointed for the purpose. This system is also not perfect. The
tribunal appointed can be manipulated by the executive. A recent example is the
dismissal of the Lord President and other two judges of the Supreme Court in
Malaysia on the recommendation of the judicial commission, apparently for not
toeing the government line.[7] Also, in many countries there are
express constitutional provisions to appoint ad hoc' or expatriate judges for a
certain period of time. It may be argued that appointments of temporary judges
may affect judicial independence, but in the conditions of the Third World
countries such appointments sometimes cannot be avoided, if only because of a
lack of qualified citizens. However, there are any number of instances of such
judges being accused of serving as lackeys of the executive.
c. Transfer and Other
Assignments:
A judge may sometimes be
transferred from one jurisdiction to another. In many countries, prior consent
of the judge whose transfer is proposed is not necessary. But any transfer by
way of punishment is not permitted. Transfer with an oblique motive or for an
oblique purpose, such as not toeing the line of the executive or for rendering
decisions unpalatable to the executive, amounts to a punishment. Such transfers
are likely to be struck down by the courts, because they amount to interference
with the independence of the judge concerned or of the judiciary.[8]
However, it cannot be said that transfer
without consent would always amount to an interference with the independence of
the judiciary. Often, transfer may serve the public interest. First, it may be
necessary for the fulfillment of broader national goals such as national
integration. Second, where services of a competent judge are needed in an area
where local talent is scarce. Third, where a judge in his early years is
transferred from place to place to enrich his judicial experience. Finally,
where there is a danger that justice will not appear to be done, and the
prevailing environment is linked with the person of the judge concerned. For
instance, certain persons or members of the bar might exploit their proximity
to a particular judge which had created considerable misunderstanding and
dissatisfaction in the working of the court. Charges against the concerned
judge may be difficult to prove or there may be absence of any connivance or
complicity on his part. But in such cases, if the atmosphere has to be
improved, the transfer of the judge without his consent may become inevitable.
However, safeguards, such as consultation with the chief justice, transfer only
in public interest and judicial review may insulate against the arbitrary use
of the power to transfer by the executive. Sometimes judges are assigned other
functions such as membership of a commission of inquiry or of administrative
tribunal. It is better if assignment of such functions is made with the consent
of the concerned judge.
d. Other Protections:
There are also other rules that
protect judges. Judges are insulated from politics and are encouraged to do
their work professionally. They are given immunities against legal proceedings
for acts done in their official capacity. They have power to punish for
contempt of court. Judges' salaries and remunerations are fixed by the
Constitution or statute and are charged permanently on the consolidated revenue
fund. It is not a regular fund which is subject of parliamentary discussion and
action, and therefore Parliament as such has no opportunity to debate the
conduct of the judges. Further, salaries and remuneration cannot be reviewed to
the judges' disadvantage. The subjudice rule prohibits publications which may
affect the course and the outcome of pending cases. The legislatures cannot
debate matters pending before the courts. The conduct of judges cannot be
raised or debated in the legislature except on a substantial motion. These
safeguards are aimed at making it possible for the judges to perform their function
without fear or bias. In addition, the rule against bias disqualifies a judge
from sitting in cases in which he has some interest.
Therefore,
independence of judiciary depends on some certain conditions like mode of
appointment of the judges’ security of their tenure and discipline of judges.[9]
Judicial Independence in the Constitution: Part VI of the Constitution deals
with the judiciary. Article: 7 provide that all powers in the Republic shall be
effective only under and by authority of the constitution. The responsibility
of seeing that no functionary of the state oversteps the limit of his power is
a necessity, on the judiciary. Article 35(3) of the Constitution provide “Every
person accuse of a criminal offence shall have right to a speedy and public
trial by an independent and impartial court or tribunal established by the law.
Article 116A provide for independence in the subordinate judiciary while
article 94(4) demands independence of the Supreme Court Judges. Subject to the
provisions of the Constitution, all persons employed in the judicial service
and all magistrates shall be independent in the exercise of their judicial
functions.
Essentials of Independence of the Judiciary:
The essentials to make a judiciary independent and the
essentials to make an independent judiciary successful are as follows-
1. The independence of the
judiciary shall be guaranteed by the State and enshrined in the Constitution or
the law of the country. It is the duty of all governmental and other
institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide
matters before them impartially, on the basis of facts and in accordance with
the law, without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any
reason.
3. The judiciary shall have
jurisdiction over all issues of a judicial nature and shall have exclusive
authority to decide whether an issue submitted for its decision is within its
competence as defined by law.
4. There shall not be any
inappropriate or unwarranted interference with the judicial process, nor shall
judicial decisions by the courts be subject to revision. This principle is
without prejudice to judicial review or to mitigation or commutation by
competent authorities of sentences imposed by the judiciary, in accordance with
the law.
5. Everyone shall have the
right to be tried by ordinary courts or tribunals using established legal
procedures. Tribunals that do not use the duly established procedures of the
legal process shall not be created to displace the jurisdiction belonging to
the ordinary courts or judicial tribunals.
6. The principle of the
independence of the judiciary entitles and requires the judiciary to ensure
that judicial proceedings are conducted fairly and that the rights of the
parties are respected.
7. It is the duty of each
Member State to provide adequate resources to enable the judiciary to properly
perform its functions.
8. In accordance with the
Universal Declaration of Human Rights, members of the judiciary are like other
citizens entitled to freedom of expression, belief, association and assembly;
provided, however, that in exercising such rights, judges shall always conduct
themselves in such a manner as to preserve the dignity of their office and the
impartiality and independence of the judiciary.
9. Judges shall be free to
form and join associations of judges or other organizations to represent their
interests, to promote their professional training and to protect their judicial
independence.
10. Persons selected for
judicial office shall be individuals of integrity and ability with appropriate
training or qualifications in law. Any method of judicial selection shall
safeguard against judicial appointments for improper motives. In the selection
of judges, there shall be no discrimination against a person on the grounds of
race, colour, sex, religion, political or other opinion, national or social
origin, property, birth or status, except that a requirement, that a candidate
for judicial office must be a national of the country concerned, shall not be considered
discriminatory.
11. The term of office of
judges, their independence, security, adequate remuneration, conditions of
service, pensions and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed
or elected, shall have guaranteed tenure until a mandatory retirement age or
the expiry of their term of office, where such exists.
13. Promotion of judges,
wherever such a system exists, should be based on objective factors, in
particular ability, integrity and experience.
14. The assignment of cases
to judges within the court to which they belong is an internal matter of
judicial administration.
15. The judiciary shall be
bound by professional secrecy with regard to their deliberations and to
confidential information acquired in the course of their duties other than in
public proceedings, and shall not be compelled to testify on such matters.
16. Without prejudice to any
disciplinary procedure or to any right of appeal or to compensation from the
State, in accordance with national law, judges should enjoy personal immunity
from civil suits for monetary damages for improper acts or omissions in the
exercise of their judicial functions.
17. A charge or complaint
made against a judge in his/her judicial and professional capacity shall be
processed expeditiously and fairly under an appropriate procedure. The judge
shall have the right to a fair hearing. The examination of the matter at its
initial stage shall be kept confidential, unless otherwise requested by the
judge.
18. Judges shall be subject
to suspension or removal only for reasons of incapacity or behavior that
renders them unfit to discharge their duties.
19. All disciplinary,
suspension or removal proceedings shall be determined in accordance with
established standards of judicial conduct.
20. Decisions in
disciplinary, suspension or removal proceedings should be subject to an
independent review. This principle may not apply to the decisions of the
highest court and those of the legislature in impeachment or similar
proceedings.
(B). Steps for
Independence of the Judiciary:
The first attempt was taken after
the division of the sub-continent in 1947. Pakistan government enacted East
Pakistan (then Bangladesh was under Pakistan government) Act No. XXIII of 1957,
which provided for separation of judiciary from the executive. The law was
still hanging for a simple gazette notification. As regards independence and
separation of judiciary, our constitution of 1972 is fairly developed. But the
framers of Supreme Law of the land made an unfortunate insertion in article 115
and 116 as ‘Magistrates exercising judicial functions’, which still. Remain
unattended. Art 22 in unequivocal term states that ‘the state shall ensure the
separation of the judiciary from the executive organs of the state’ as one of
the fundamental principles of state policy. It is not readily judicially
enforceable. Nevertheless the state cannot ignore it for long. There was under
current of demand of implementation of constitutional obligation from the very
inception of Bangladesh. But the Fourth Amendment undermined the
constitutionalism itself, which obviously destroyed the independence of
judiciary. The subsequent upheavals of politics rather by passed it. In 1976
law commission recommended that subordinate judiciary on the criminal side
should be separated from the executive.
In the meantime, we witnessed two
extra-constitutional processes. In 1987, initiatives were taken to separate the
magistracy by amending code of Criminal Procedure, 1898. For unknown reason the
Bill could not be placed before the Parliament. After the fall of autocratic
rule in 1990, exception was high to ensure separation of judiciary. But the
next two governments of 1991 & 1996 did nothing in this regard except
spoiling its tenure. In 1999, the Supreme Court issued 12-point directives in
famous Mazdar Hossain case to ensure separation of judiciary from the
executive. The successive governments have taken time again and again to delay
the process. It may be recalled that the caretaker government (2001) has all
measures to ensure separation but stop at their quest of AL and BNP two major
parties of the country. The BNP leaded coalition government is working very
slowly towards separation of judiciary.
It is a pleasure that Judicial Service
Commission and Judicial Pay Commission have been created various rules and
amendment in the relevant sections of code of Criminal Procedures 1898 are
under consideration of parliament of late the law. Just and Parliamentary
Affairs Minister announced that it would take additional six years (!) to
ensure separation of judiciary the Daily Star 20.6.2004 this statement is
reflective of how indifferent the Government is about separation of judiciary.
The demand separation of the judiciary from the executive is universal to
ensure the independence of judiciary and safeguard the rights of the people. It
is quite unfortunate that the Government is moving towards at shail’s pace.
Judiciary from the executive at all levels in 1973 and 1974 (in West Bengal in 1970)
respectively. Ensuring justice and independence of judiciary will remain a far
very until lower judiciary is separated from the executive. It is mandatory and
constitutional obligation of the Government to ensure separation of the
judiciary from the executive. Five years have been clasped since the Supreme
Court gives it directives in Masdar Hossain case. We may mention here some
draft procedure to separation of judiciary by the government at a glance:
1. The formation of Bangladesh
Judicial Service, establishment of pay commission, appointment in service and
the procedures of temporary dismiss and remove, 2001.
2. Bangladesh judicial service
(ascertainment of field of service, giving promotion, system of control and
discipline including grant of vacation and the term of service) procedures,
2001.
3. Judicial Service Commission
Procedures, 2001.
4. The Code of Criminal
Procedures, 1898 (Amendment) Ordinance, 2001
(C). Concept of Judicial Independence
in Different Countries:
The world today is eager to have
democracy. Tens and thousands of people from various countries of the world are
struggling for democracy. Democracy has been achieved in many countries after
sufferance, pains and sacrifices. But achievement of democracy cannot be the be
all and end all. It is necessary to sustain and safeguard democracy. Democracy
cannot survive without establishment of the Rule of law i.e. Government by law,
not by men. The independence of judiciary is inextricably linked up with rule
of law. And rule of law shall remain a dream without the independence of
judiciary, which in its turn flows from separation of powers. In order to
protect and preserve democracy, nay independence of a country, the separation
and thus independence of judiciary from the executive is the cry of the day. In
a world, the doctrine of independence of judiciary emanated from the anxiety to
safeguard the individual liberty by limiting power of the king. Political
liberty is possible only when the governmental power is restrained and limited.
There is however no denial that,
the executive, legislature and judiciary are the three principal organs of the
Government. All the three wings must work coherently and lack of any of them
working together tend to make the government dysfunctional. In this connection
let us remember the worlds of Montesquieu, the celebrated French scholar, who
in his book ‘the spirit of the laws’ writes that ‘constant experience shows us
that every man invested with power is apt to abuse it, and to carry his
authority until he is confronted with limits’. To me, the independence of
judiciary is very much relevant in the present days in our endeavor to
establish rule of law in the country. It is, however, difficult to define
precisely what independence of judiciary encompasses. Literal meaning of the
word is to secure independence from outside control and influence including the
interference from the executive. That is why the constitution propounds
separation of powers. The basic characteristics of judicial independence are security
of tenure, financial security and administrative security. Judiciary as an
organ of the state has to administer even handed justice in accordance with the
Constitution and the mandate of law. Any interference therein leads to
consequences affecting adversely the very foundation of democracy, making
democracy sometimes merely a façade without the inner spirit of democracy in
the real sense of the term.
In ancient days the state was mainly engaged
to protect the country from foreign aggression and maintenance of internal law
and order in the country. But the notion is now changed. Today, citizens
cherish a number of demands to be fulfilled by the State and vice versa. In the
wake of vast expansion in the horizon of activities of the State there is an alarming
increase in the possibility of invasion of the liberty of its citizens. The
State itself sues its citizens, on the other hand innumerable number of suits
and cases against the State too. Complaints against the State of violation of
law increased many fold. Multitudes of errors and omissions on the part of the
State jeopardizing personal liberties of the citizens have been established to
be true in the courts of law. In such state of affairs application of the
principle of rule of law needs no over emphasis. In order to nourish the rule
of law, thereby safeguard the democracy, the independence of judiciary is a
sine qua non.
The concept of the independence
of judiciary is not absolutely new. During the days of golden Rule of
Khulafa-e-Rashedin, the regime of caliphs, the institution of ‘Qazi’ (Judge)
was in vogue. There are number of instances when the primacy of decision of the
‘Qazees’ reigned supreme and prevailed over the caliphs even. With the passage
of time the concept has spread and now it is universally accepted as a basic
pre-requisite for establishment of the rule of law. It be mentioned that desire for justice is as
old as the human civilization. But justice can only be administered by a court
of law. To achieve justice, the court system i.e. the judiciary must be
impartial, independent and effective with constitutional authority. The
judiciary must be manned by persons of high quality, courage, determination,
devotion, independence and an unbiased mind. Then comes the question what method
should be followed in the matter of selecting and appointing a fit and proper
person to the office of a Judge.
India: In
this connection the decision in the case of Supreme Court Advocates-on- Record Association and another Vs Union of
India reported in AIR 1994 SC 268, an epoch making judgment in Indian
jurisdiction, may be mentioned. Their Lordships in the said decision held, Then
the question which comes up for consideration is, can there be an independent
Judiciary when the power of appointment of Judges vests in the Executive? To
say yes, would be illogical. The independence of Judiciary is inextricably
linked and connected with the constitutional process of appointment of Judges
of the higher Judiciary.
“Independence of Judiciary’ is
the basic feature of our Constitution and if it means what we have discussed
above, then the framers of the Constitution could have never intended to give
this power to the Executive. Even otherwise the governments – Central or the
State- are parties before the Courts in large number of cases. The Union
Executive has vital interests in various important matters which come for
adjudication before the apex-Court. The Executive- in one form or the other- is
the largest single litigant before the Courts.”
Turning to our subcontinent, therefore, it
appears that we are not lagging behind in the march towards establishing
independence of judiciary. In India they have succeeded to keep the judiciary
separated from the clutch of the Executive and thereby achieved to a great extent
the independence of judiciary. The above mentioned decision of the Indian
Supreme Court is an instance in this regard.
Pakistan: Article
175(3) of the Constitution of Pakistan has provided for separating the
judiciary from the Executive. By enacting Article 177 it has been made
mandatory for the President to make appointments of Judges of the Supreme Court
in consultation with the Chief Justice.
United Kingdoms: Judicial independence plays a very major role in British
politics as it is fundamental to the British Constitution. The society of
British mostly depends on the decisions upheld within the courts. Under the
judicial independence of UK, the courts must always remain independent and must
not influence by external pressure and interference especially from the
government. At any levels, judges must be affirm and confident that they are
free from encountering any consequences when they take the government to task
over government decisions. The judicial independence is guaranteed by the
following, which is they behave a professional manner when in office, they are
untouched by the government if they are dealing with the decision that is
against the government act only if they maintain the highest standards in all
scopes. Those involved in the judiciary are paid out of the Consolidated Fund
in order to ensure that they are free from annual parliamentary criticism that
might be used to set out future judicial decisions. In year 2002, the European
court ruling is most likely to take precedence over a British court decision if
the government act is supported by the judiciary and the acts backfire for any
reason. Thus, the judiciary is said to be free from liability where the
government will take the flak but not the judiciary since the act was
originated by the government. They would argue upon the matters precisely and
accurately, that they simply impose and enforce the law but that it’s the
parliament that enacts that law. Judges of a higher or superior court is
protected from any proceedings either related to criminal or civil, in respect
to any act that his judiciary has done though it might be malicious or not in
good trust. Further, an individual is held to be guilty of the crime as per
jury for giving incorrect and false evidence. Even those persons in charge who
acting in a judicial capacity is provided the immunity mentioned, but they do
not have immunities in their private capacities whatsoever and are liable
civilly and criminally in the similar way as to that of other citizens. All in
all, the only individual who enjoys the immunity from law will be the Queen in
her personal capacity.
Australia:
Basically, the
doctrine of judicial independence in Australia is much more similar to that of
the United Kingdoms. In Australia, there are three inter-related notions that
are the judicial impartiality, judicial independence and public confidence, all
of which support a consensual and democratic society. However, the democratic
structure will be weakened and the rights and freedoms of the citizens are at a
state of risk if the public has lost confidence towards the impartiality or
independence of the judiciary. The judges are eligible and should be concerned
regarding the practice of denigration and also the process of growth of their
office by the politicians, media members, by public commentators and
nevertheless by the academicians and as well the legal profession members.
There is an absence of debate in their system as such will overtake the
reasoned and rational criticism of particular decisions and the lazy and
effective way of generalized vilification. It is being said that is from the
senior politicians who is more experienced that usually abandon any trial at
reasoned descends and arguments into irrational abuse. The Federal court is
prepared publicly to bad mouth High court. The best and most striking example
of public vilification would be the assault made against the Justice Michael
Kirby in the Senate on 12 March 2002.
Regardless of the essentiality of the
judicial independence and the frequent repeated statements made by the
community leaders in worldwide which this independence must be preserved, there
are many do not appreciate what the expression implies. Only few who understand
that the judicial independence is an important condition for maintaining the
rule of law in which the rule of law will bind not only the citizen but
including the legislature, the executive and the government and its officials.
The governed and the governors stand equally before the law, which in short is
known as equality before the law. Moreover, the rule of law protects not only
those who are powerful, famous, righteous and influential but at the same time
also protects the rights of the weak, unpopular and the members of the minority
groups and particularly the rights of those being charged with criminal
offences. How if Premier and famous radio commentators and celebrities publicly
pronounce individual guilty of offences regarded by the community as heinous,
then it is very important that those individual be judged according to the law
by judges who are not populists but independent, in particular, impartial.
Public confidence in the judges and thus the authority of the courts can be
diminished without the public aware about it. In 1940 Lord Atkin wrote to Dr
Evatt: “How little the public realise how dependent they are for their
happiness on an impartial administration of justice. I have often thought it is
like oxygen in the air, they know and care nothing about it until it is
withdrawn."
Malaysia: In Malaysia, one of the
characteristics of the law that tends to irritate other sources of power is the
demand of the law's practitioners, which are the judges and lawyers for
judiciary independence. The irritation is often correct of powerful and rich
people and the politicians, government officials and media editors and their
columnists. In the law and the courts, those who are used to be obeyed and
feared commonly find it intensely annoying that there is a source of power that
they cannot control or buy. The essence of a modern democracy is yet observance
of the rule of law, where the rule of law will not prevail without assuring the
judges and the practicing lawyers and also the legal academics, which it’s a
very high measure of independence of mind and action. Judicial independence
embodies both the individual and institutional aspects. As an institution, the
judiciary must be respected as a separate, distinct and independent branch of
government. At the same time, within the judiciary, the individual judges must
have the substantive freedom necessary to perform their duties in an
independent and impartial manner, beyond any improper or undisclosed influence
and pressure. Besides, the notion and concept of judicial independence the
judges to be free from any sort of interference in the exercise of their
judicial powers whereby each judge ought to be independent from external
influences which may seek to reduce his or her impartiality and objectivity.
This needs independence both from the other branches of government and from any
other influences that might influence the capacity of a judge in deciding a
case strictly on the basis of its legal merits. On top of that, although the
systems of appellate and judicial review necessarily impinge on a judge's
independence actions, it also requires independence from other judges involved
in decision making. An impartial assessment of the facts and objective
application of the law are necessary for legal independence.
Bangladesh: In
Bangladesh our Constitution also envisages independence of judiciary, through
separation from the executive, under several Articles. According to Article 95
of the Constitution appointment of Judges of the Supreme Court were made by the
President in consultation with the Chief justice. Though after the Fourth Amendment
there has been change as to requirement of consultation with the Chief Justice,
but in practice the Chief justice is consulted in such appointments. We may
therefore say that a constitutional convention has been developed. Under
Article 22 of our Constitution the State is to ensure separation of the
judiciary from the Executive.
Under Article 115, appointments
to subordinate courts are to be made by the President and under article 116
control and discipline of the subordinate courts including Magistrates
exercising judicial function though vests in the President but he shall have to
exercise the same in consultation with the Supreme Court. Under Article 116A,
the judicial Officers including the Magistrates have been declared to be
independent in the exercise of their judicial functions. In this connection our
Supreme Court headed by Justice Mustafa Kamal (the Chief Justice of Bangladesh,
as he was then, who was also the author judge) gave landmark judgment in the
case of Secretary, Ministry of Finance
Vs Masdar Hossain and others (52 DLR AD 82). In the said decision, after
taking into consideration a number of decisions from Indian and Canadian
jurisdictions, our Appellate Division held, inter alia, that the independence
of the judiciary as affirmed and decided by Articles 94(4) and 116A is one of
the basic pillars of the constitution and cannot be demolished, whittled down,
curtailed or diminished in any manner whatsoever, except under the existing
provisions of the constitution.
It has further been held that
Articles 115, 133 or 136 do not give either the parliament or the president,
the authority to curtail or diminish the independence of the subordinate
judiciary by recourse to subordinate legislation or rules and that what cannot
be done directly, cannot also be done indirectly. The decision in the case,
popularly known as Masdar Hossain’s Case has been acclaimed nationally and
internationally as milestone in the judicial history of Bangladesh and must be
regarded as very bold step, laying foundation, towards achieving independence
of judiciary though the subject matter of the case was with regard to service
conditions, salaries etc of the subordinate judiciary thus affecting financial
security. In the case of Bangladesh Vs
Md. Abu Bakar (57 DLR AD 186), the respondent a Magistrate was imposed a
penalty in a departmental proceeding by the government without consultation
with the Supreme Court. Taking cue from Article 116 of our Constitution it has
been held, (incidentally myself being the author Judge), “In view of Article
116 of the Constitution we are of the view that in order to take disciplinary
actions against any Magistrate exercising judicial function, consultation with
the Supreme Court is a must”. The action of the Government was thus struck
down.
If we run a critical journey
throughout the Landmark decision of Masdar
Hossain (52 DLR AD 82) Case we will find the summaries as follows-
Independence of the judiciary (also
judicial independence) is the principle that the judiciary should be politically
insulated from the legislative and the executive power is subsumed under the
Article 14 of the International Covenant on Civil and Political Rights. The
constitutional provision of a judicial branch of government, and the formal
assurance that it is separate and independent of the other branches, represents
the main way by which most states seek to comply with the principles contained
in the Constitution. The landmark decision of Secretary, Ministry of Finance v
Masdar Hossain (1999) 52 DLR (AD) 82 was determined on the issue that to what
extent the Constitution of the Republic of Bangladesh has actually ensured the
separation of judiciary from the executive organs of the State. 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.
In 1995 by a writ petition number 2424
Masder Hossain along with 441 judicial officers who were judges in different
civil court, Alleged inter alia that:
i. Inclusion of judicial service in the
name of BCS (Judicial) under the Bangladesh Civil Services (Re-organization)
Order, 1980 is ultra vires the Constitution;
ii. Subordinate Judiciary forms chapter
II of the PART VI (THE JUDICIARY) of Constitution and thereby the Subordinate
Judiciary has already been separated by the Constitution. Only the rules under
Article 115 of the Constitution and/or enactments, if necessary, are required
to be made for giving full effect to this separation of judiciary.
iii. Judges of the subordinate
Judiciary being the presiding judges of the courts cannot be subordinate to any
tribunal and as such. The judicial officers are not subject to the jurisdiction
of the Administrative Tribunal.
The court delivered its historic
judgment with 12 directive points on 7th May 1997 (reported in 18 BLD 558). The
Government preferred an appeal by leave (Civil Appeal No. 79/1999) and the
Appellate Division partly reversed the decision of the High Court Division by
its judgment delivered on 2nd December 1999 (reported in 52 DLR 82). In the
said land mark ruling in 1999 what is popularly known as the Masdar Hossain
case, the Appellate Division directed the Government to implement its 12 point
directives, including for formation of separate Judicial Service Commission
(JSC) to serve the appointment, promotion and transfer of members of the
judiciary in consultation with the Supreme Court. A further 12-point directive
called for a separate Judicial Service Pay Commission, amendment of the
criminal procedure and the new rules for the selection and discipline of
members of the Judiciary.
On an extensive examination of
constitutional provisions relating to subordinate courts (article 114-116A) and
services of Bangladesh (article 133-136), the Appellate Division held that
“judicial service is fundamentally and structurally distinct and separate
service from the civil executive and administrative services of the Republic
with which the judicial service cannot be placed on par on any account and that
it cannot be amalgamated, abolished, replaced, mixed up and tied together with
the civil executive and administrative services.” (Para 76). It also directed
the government for making separate rules relating to posting, promotion, grant
of leave, discipline, pay, allowance, pension and other terms and condition of
the service consistent with article 116 and 116A of the constitution.
However, in delivering judgment, the
court made an attempt to differentiate between the terms 'independence' and
'impartiality' and said obiter that they would subscribe to the view of a
leading decision of Supreme Court of Canada in Walter Valente v Her Majesty the
Queen (1985) 2 SCR 673, on protection of judicial independence under section ii
(a) of the Canadian Charter of Rights and Freedoms. 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" 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 practice 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
'Twelve Directions' of Masdar Hossain case:
The ‘Twelve Directions’ given in this
land mark judgment were declared as the operative part of the judgment by the
Appellate Division. The directive points are as follows:
1) It is declared that the judicial service
is a ‘service of the Republic’ within the meaning of Article152 (1) of the
Constitution, but is a functionally and structurally distinct and separate
service from the civil executive and administrative services of the Republic
with which the judicial service cannot be placed on par on any account and that
it cannot be amalgamated, abolished, replaced, mixed up and tied together with
the civil executive and administrative services.
2) It is declared that the word
“appointments” in Article 115 means that it is the President who under Article
115 can create and establish a judicial service and also a magistracy
exercising judicial functions, make recruitment rules and all pre appointment
rules in that behalf, make rules regulating their suspension and dismissal but
Article 115 does not contain any rule-making authority with regard to other
terms and conditions of service and that Article 133 and Article 136 of the
Constitution and the Services (Reorganization and Conditions) Act, 1975 have no
application in the above matters in respect of judicial functions.
3) It is declared that the creation of
BCS (Judicial) cadre along with other BCS executive and administrative cadres
by the Bangladesh Civil Service (Reorganization) Order, 1980 with amendment of
198 is ultra vires the Constitution. It is also declared that Bangladesh Civil
Service Recruitment Rules, 1981 are inapplicable to the judicial service.
4) The appellant and other respondents
to the writ petition are directed that necessary steps be taken forthwith for
the President to make Rules under Article 115 to implement its provisions which
is a constitutional mandate and not a mere enabling power. It is directed that
the nomenclature of the judicial service shall follow the language of the
Constitution and shall be designated as the Judicial Service of Bangladesh or
Bangladesh Judicial Service. They are further directed that either by
legislation or by framing Rules under Article 115 or by executive order having
the force of Rules, a Judicial Services Commission be established forthwith
with majority of members from the Senior Judiciary of the Supreme Court and the
subordinate courts for recruitment to the Judicial Service on merit with the
objective of achieving equality between men and women in the recruitment.
5) It is directed that under Article
133 law or rules or executive orders having the force of Rules relating to
posting, promotion, grant of leave, discipline (except suspension and
removal),allowances, pension (as a matter of right, not favor) and other terms
and conditions of service, consistent with Article 116 and 116A, as interpreted
by us, be enacted or framed or made separately for the judicial service and
magistrates exercising judicial functions keeping in view of the constitutional
status of the said service .
6) The impugned orders in the writ
petition dated 28.2.94 and 2.11.95 are declared to be ultra vires the
Constitution for the reasons [stated in] the judgment. The appellant and the
other respondents to the writ petition are directed to establish a separate
Judicial Pay Commission forthwith as a part of the Rules to be framed under
Article 115 to review the pay, allowances and other privileges of the judicial
service which shall convene at stated intervals to keep the process of review a
continued one. The pay etc. of the judicial service shall follow the
recommendations of the Commission.
7) It is declared that in exercising
control and discipline of persons employed in the judicial service and
magistrates exercising judicial functions under Article 116 the views and
opinion of the Supreme Court shall have primacy over those of the Executive.
8) The essential conditions of judicial
independence in Article 116A, elaborated in the judgment, namely, (1) security
of tenure, (2) security of salary and other benefits and pension and
(3)institutional independence from the Parliament and the Executive shall be
secured in the law or rules made under Article 133 or in the executive orders
having the force of Rules.
9) It is declared that the executive
Government shall not require the Supreme Court of Bangladesh to seek their
approval to incur any expenditure on any item from the funds allocated to the
Supreme Court in the annual budgets, provided the expenditure incurred falls
within the limit of the sanctioned budgets, as more fully explained in the body
of the judgment. Necessary administrative instructions and financial
delegations to ensure compliance with this direction shall be issued by the
Government to all concerned including the appellant and other respondents to
the writ petition by 31.05.2000.
10) It is declared that the members of
the judicial service are within the jurisdiction of the administrative
tribunal. The declaration of the High Court Division to the opposite effect is
set aside.
11) The declaration by the High Court
Division that for separation of the subordinate judiciary from the executive no
further constitutional amendment is necessary is set aside. If the Parliament
so wishes it can amend the Constitution to make the separation more meaningful,
pronounced, effective and complete.
12) It is declared that until the
Judicial Pay Commission gives its first recommendation the salary of Judges in
the judicial service will continue to be governed by status quo [ante] as on
8.1. 94 vide paragraph 3 of the order of the same date and also by the further
directions of the High Court Division in respect of Assistant Judges and Senior
Assistant Judges. If pay increases are effected in respect of other services of
the Republic before the Judicial Pay Commission gives its first recommendation
the members of the judicial service will get increases in pay etc. commensurate
with their special status in the Constitution and in conformity with the pay
etc. that they are presently receiving.
With this decision the court really
tried to do something for the extensive betterment of the country. But the
matter of sorrow is that almost all the directions are only limited to the
letters. The spirit of the decision is yet to be implemented and that is why
only separation is not enough.
Chapter 2: Judiciary of
Bangladesh
(A) Background of judiciary in
Bangladesh:
The judiciary of Bangladesh has a long history. The
separation of the same is also long demanded. The details are given below-
(a) British Period:
During the British rule there was
a demand for separation of judiciary form the executive. The British
administration did not make this separation thinking that separation might go
against their colonial interest. In 1919 the matter of separation of judiciary
was raised in the House of Commons but it was not discussed on the contention
that it was a matter within the jurisdiction of provincial government. In 1921
a resolution regarding separation of judiciary was passed in the Bengal
Legislative Assembly which was followed by formation of a committee. The
committee reported that there was no practical problem in separation. However,
nothing more was done.
(b) Pakistan Period:
After separation and
interdependence in 1947 no step was taken in East Pakistan. The United Front
includes the idea of separation in its 21 points formula in 1954. The firs6t
Constitution in independent Pakistan was adopted in 1956. Unlike the Government
of India Act 1935 (Ss 253, 254, 255 & 156) and the Constitution of India (Art
233 to 237 in chapter vı) this Pakistan Constitution of 1956 did not provide
for any provision regarding “subordinate courts” or “magistracy”; these were to
be regulating by the code of the CPC & the CrPC. In 1957 the East Pakistan
Provincial Assembly passed the CrPC (East Pakistan Amendment) Act 1957 (No. 36)
which dealt with separation. However, this Act was never given effective. In
1958 the Pakistan Law Commission recommended to bring the judicial magistrates
under the control of The High Court. In 1967 the Law Commission again
recommended to give effect to the CrPC Act 1957 (No. 36) though nothing was
done until 1972. In the CrPC (East Pakistan Amendment) Act 1957 (Act No .36 of
1957) an overhauling amendment was made in the CrPC with a view to separating
the judicial and executive functions of the magistrate. A full discussion of
that amendment is beyond the scope of this work.
(c) Bangladesh Period:
In 1972 after independence of
Bangladesh the Constitution of the People’s Republic of Bangladesh was adopted.
Provision was made in Art 22 in the Fundamental Principle of State Policy that
the state shall ensure the separation of the judiciary from the executive organ
of the state. In 1976 a Law Committee headed by Justice Kemaluddin reported to
implement separation of lower judiciary in three stage which as follows:
First Stage: The government may by notification appoint some
particular Magistrate at each station exclusively for judicial work. This can
be given effect without any additional expenses or administrative difficulties.
Second Stage: This should be the nature of separation of judicial
function form executive as envisaged in the CrPC (East Pakistan Amendment) Act
1957 (Act No. 36).
Final Stage: The final stage would be not only complete separation
of judicial function form executive but also constitution of a separate
integrated judicial service under the control of the High Court Division for Civil
and Criminal work right up to the level of the District & session judge.
The committee also recommended that for creation of an integrated judicial
service. , it would be necessary to enact new legalization. In 1987 by an
amendment to the CrPC President Ershad prepared a bill for separation of
judiciary. However, the bill did not see the light of the day. In Pakistan
separation was done in 1973 and India in 1974 by an amendment to the CrPC in
1990 the issue of separation of judiciary was put into the manifesto of the
Three- Party Alliance movement against Ershad regime. In every election after
1990 both the BNP and AL had avowed commitment in their manifesto that going to
power they would separate judiciary form the executive. In 1991 a private
member’s Bill by Mr. Salauddin Yusuf namely the Constitution (14th amendment)
Bill 1991 was introduced for further amendment of Art 95, 98, ii5and 116 of the
Constitution. The Bill was sent to a select committee which had about 13
meeting to consider it.
The Bill tried to reinstate the
provision of the 1972 original Constitution envisaged by the constitution
makers. The revised bill was submitted in parliament in 1994. The comparison of
the original bill and the revised bill reveals that “the BNP has come out as the
champion for the 4th amendment of the Constitution though it is the BNP which
never misses any opportunity to condemn AL for the 4th amendment of the
Constitution; however, nothing was done to pass the Bill. The Bill, however,
did not deal with anything about the separation of subordinate judiciary.
The government side did not
accept any proposal for amendment of Art 115 & 116 of the constitution. ‘By
not agreeing to restore the original provisions of Art 115 & 116 the
government has unmistakably demonstrated that they are opposed to the
separation of subordinate judiciary from the executive. Shekh Hasina as the
Prime Minister in the 7th parliament kept echoing her commitment that she would
do all for separation of judiciary. A committee was formed headed by the
secretary of Law and Parliamentary Affairs Motin Khasru, the Law Minister
stated that a bill for separation of judiciary from the executive was under way
but nothing more was done.
(B) Present Judicial System:
The present system of Bangladesh Judiciary is mainly divided
into two parts which are given below-
(a) Superior Judiciary having
Appellate, Revisional & original Jurisdiction, and
(b) Sub-Ordinate Judiciary having
Original Jurisdiction
The Superior Judiciary:
Bangladesh
Supreme Court is the highest court of Bangladesh, having two wings namely;
a. Appellate
Division
b. High Court
Division
Bangladesh
Supreme Court is the creation of article 94 of the Bangladesh Constitution
which provides:
Establishment
of Supreme Court
(a) There shall be a Supreme Court for
Bangladesh (to be Known as the Supreme Court of Bangladesh) comprising the
Appellate Division and the High Court Division.
(b) The Supreme
Court shall consist of the Chief Justice, to be known as the Chief Justice of
Bangladesh, and such number of other Judges as the President may deem it
necessary to appoint to each division.
(c) The Chief
Justice, and the Judges appointed to the Appellate Division, shall sit only in
that division, and the other Judges shall sit only in the High Court Division.
(d) Subject to
the provisions of this Constitution the Chief Justice and the other Judges
shall be independent in the exercise of their judicial functions.
The subordinate
judiciary is under the control of High Court Division of the Bangladesh Supreme
Court as per the provision of article 109 of the constitution.
.Superintendence
and control over courts
The High Court shall have superintendence and
control over all courts [and tribunals] subordinate to it. The Sub-ordinate
judiciary is the creation of Act of parliament. Article 114 of the constitution
provides thus: There shall be in addition to the Supreme Court such courts
subordinate thereto as may be established by law.
The Sub-Ordinate Judiciary:
The
Sub-ordinate Judiciary of Bangladesh is divided into
a. Civil
Jurisdiction
b. Criminal
Jurisdiction
c.
Administrative Jurisdiction
Civil Jurisdictional Courts:
a. Court of
District Judge
b. Court of
Additional District Judge
c. Court of
Joint District Judge
d. Court of
Senior Assistant Judge
e. Court of
Assistant Judge
Every
Administrative District of Bangladesh have these courts functioning to
adjudicate civil disputes among the citizens.
The Criminal Jurisdictional Courts:
The criminal
judiciary is divided into two
a. The Court of
Session
b. The
Magistracy
The Court of Session:
a. Court of
Session Judge
b. Court of
Additional Session Judge
c. Court of
Assistant Session Judge
The Magistracy:
The Magistracy
of Bangladesh is divided into two Class
a. The Judicial
Magistrate
b. The
Executive Magistrate
The Court of Judicial Magistrate are four in class:
a. Court of
Chief Judicial Magistrate
b. Court of 1st
Class Judicial Magistrate
c. Court of 2nd
Class Judicial Magistrate
d. Court of 3rd
Class Judicial Magistrate
An executive
Magistrate is mainly an administrative Magistrate, holding the limited trial
power only in mobile court. These Courts are functioning in every
Administrative District.
Administrative Jurisdictional Tribunals:
a.
Administrative Appellate Tribunal. (Situated in the capital only)
b.
Administrative Tribunal. (Situated in the capital only)
c. The
Electricity court. (Administrative Magistrate of every District acts as such)
d. House Rent
Controller. (Every District has this court)
e. The
settlement Court (Situated only in the capital).
f. The Land
Appeal Board. (Situated only in the capital)
g. The Labor
Court. (Few Administrative District have this court)
(C). Judiciary and
Good Governance:
Among
the various actors the government is the main actor for good governance. Since
government consists of three basic organs--executive, legislature and
judiciary, the governance of a country revolves based on these three organs.
When an organ is ineffective or does not work smoothly, weak or bad governance
prevails. The judiciary of a country comprises all courts, which interpret
laws, settle disputes, enforce rights of the citizens and impose penalty to the
offenders. A country without legislature in conceivable but without judiciary a
civilized country is hardly conceivable “There is no better test of excellence
of government than the efficiency of its judicial system” (Bryce, 1921:42). So
an effective and independent judiciary is the sine qua non of good governance. A country cannot claim to have
good governance without providing easy, affordable, speedy and impartial
justice to the people.
(D) Judiciary in upholding Constitution and Rule of Law:
No country can realize the ideal
of stable and prosperous polity without an efficient and independent judiciary.
The role of judiciary in Bangladesh in upholding the Constitution and rule of
law has not been impressive. Consequently there is not only frequent violation
of the constitution but also a general decline in the integrity and performance
of the judiciary, which ultimately affect every segment of the society. The
concept Constitutional supremacy and continuity involves numerous aspects
including the judiciary, political parties, bureaucracy, military and other
organs of the state and government. Not all the aspects of Constitutional
supremacy and continuity are examined in this study.
The constitution of Bangladesh
ensures Constitutional supremacy. In addition there are some other features of
the Constitution of Bangladesh which strengthen Constitutional supremacy and
judicial accountability to ensure Constitutional supremacy as the guardian of
the Constitution. An overview of these features is as follow:
1. The Constitution of the
People’s Republic of Bangladesh is the supreme law of the land. This Supremacy
is a Special and Unique feature in our constitution. The preamble of the
constitution also stipulates its aims and objectives and speaks about
Supremacy. The preamble of Bangladesh Constitution has laid down in clear terms
the aims and objectives of the constitution and it speaks of representative
democracy, rule of law, and the Supremacy of the embodiment of the will of the
people of Bangladesh.
2. There is a well-organized
judiciary which plays a significant role in establishing the rule of law and
Constitutional supremacy as the guardian of the constitution. This ensures the
supremacy of the Constitution of Bangladesh.
3. The latest 15th Amendment of
the Constitution of Bangladesh clearly ensures that Martial law or any other
unconstitutional way to seat in the government is void-ab-initio and it is a
punishable offence.
4. In Fifth Amendment and Seventh
Amendment case the declared that all kind of Martial law and
extra-constitutional power as punishable and illegal.
The foregoing study identifies
the various incidents and factors which undermined the independence of the
judiciary in Bangladesh. The factors which are detrimental to the
Constitutional supremacy and continuity and as well independence of the
judiciary in Bangladesh have been critically discussed and examined.
Chapter 3: Judicial
Independence in Practice
(A). The Judiciary in
Politically Sensitive Areas:
The judiciary acts as an arbiter
not only in a dispute between the executive and the individual but also between
the executive and the legislature, the executive and the judiciary,[10]
and, in a federal system, between the federal executive and the state executive
and between one state and another state. Sometimes these disputes may be of a
political nature, but judges cannot avoid making decisions on them. The bases
on which the courts resolve such disputes may be of interest. In a Malaysian
case, Stephen Kalong Ningkan v. Government of Malaysia,[11]
the appellant was the Chief Minister of a State in Malaysia. The Governor of
the State purported to dismiss him on the strength of a letter signed by fifty
percent of the members of the State Legislature, to the effect that the members
no longer had confidence in the Chief Minister, whereupon the Governor asked
him to resign, and upon his refusing to do so, dismissed him. The appellant
thereupon commenced an action in the High Court which held that the Governor
had no power to dismiss the appellant.
Accordingly, the appellant was
reinstated. This produced a vigorous reaction on the part of the federal
government, which proclaimed a state of emergency in the State. The Federal and
State Constitutions were amended authorizing the Governor in his absolute
discretion to dismiss the Chief Minister. Subsequently, a no confidence motion
was passed by the state legislature and the appellant was dismissed. The
appellant challenged his dismissal on the ground that the proclamation of
emergency was made not to deal with the grave emergency but for the purpose of
removing the appellant. The Judicial Committee of the Privy Council held that
the appellant had failed to prove that the emergency was for an improper
purpose. The issue of the justiciability of a proclamation of emergency was,
however, left open but the Federal Court had held that the circumstances which
bring about a state of emergency are non-justiciable. It would appear that in
politically charged cases the courts have generally shown excessive
self-restraint adopting interpretations working to the advantage of the
executive. But sometimes the courts may even go further. In Nigeria in the
1960s, the courts seldom ruled against the government and never in election
cases. With one exception, all the constitutional cases went in favor of the
government. Most of these decisions concerned individual liberties.
(B). Personal Rights:
Perhaps there is no other area so
sensitive and delicate as state security and public order, where the courts
have to maintain a delicate balance between individuals' rights and the
exercise of executive powers. Traditionally, judges are thought of as the
defenders of the rights of individuals. But in most of the Third World
countries, this tradition is only occasionally upheld.[12]
In a Nigerian case it was held that the provisions relating to sedition under
the Criminal Code conformed with the right to freedom of expression necessary
in a democratic society.[13]
The Supreme Court made the sweeping statement: "It must be justifiable in
a democratic society to take reasonable precautions to preserve public order,
and this may involve the prohibition of acts which, if unchecked and
unrestrained, might lead to disorder. Accordingly, the defendant was convicted.
The Court failed to appreciate that the alleged statement did not endanger
public security nor did it in fact have any repercussion on public order. The
statement intended simply to induce the people not to vote for the party in
power at the next elections. The Court also failed to fix a point at which the
restrictions on personal freedoms become acceptable, judged by universal
standards, and at which the public interest overrides the interests of the
individual.
In preventive detention cases the
courts in most Third World countries have taken the view that power to detain
persons deemed prejudicial to national security rested solely with the
executive, acting on its subjective judgment as to whether detention was
necessary. If the detention order is presented and found to be prima facie in
order, then the courts cannot go behind the detention order to inquire why the
person was actually detained. They would not go into the merits of the grounds
for issuing the detention order. Decided cases point to the fact that in
conflict between the interests of the state and the personal rights of an
individual the latter must give way to the former. In politically sensitive
cases as well as in cases involving personal rights, the courts would be loathe
to invalidate executive actions of the top echelons of the executive hierarchy.
In fact, these two types of cases overlap to a certain extent.
(C). Property Rights:
The courts, in almost all
jurisdictions, appear to be more firm in protecting property rights. They have
shown much activism in this area. In India, major constitutional development is
owed to the courts' zeal for the safeguard of private property. Since
Independence in 1947, the Indian legislatures have tried to bring certain
socio-economic reforms, particularly land reforms. But the courts invalidated
the major land reform legislations on the ground that they infringe upon the
fundamental right to property guaranteed by the Constitution. This led to a
number of constitutional amendments, which gave rise to a sort of tussle
between the legislature and the executive on one hand and the judiciary on the
other. This again led to the decision of the Supreme Court in Golak Nath v.
Punjab (hereafter Golak Nath)[14]
one of the most controversial cases in Indian constitutional history. In this
case validity of certain land reform legislation and various constitutional
amendments were challenged. The Court held that Parliament has no power to
amend the Constitution in such a way so as to take away or abridge any of the
fundamental rights guaranteed under the Constitution. This case had overruled
the prior decisions of the Supreme Court, which categorically held that there
is no limitation on Parliament's power of amendments except the procedure for
amendments provided by the Constitution itself. Golak Nath had virtually
amended the Constitution and apparently judicial power had encroached upon the
constituent power of the legislature.
Moreover, the Constitution is a
dynamic instrument. It is the product of its own period and environment and it
cannot remain static. Constitutional law has not only to adapt itself to
changed social circumstances, but to changes and development in human knowledge
also. Attempts to make it static would make it extremely difficult for changing
social needs to be met promptly and systematically. Also, in India, of the
three organs of government, the judiciary is the most independent. The courts
in their zeal for the protection of individuals' rights have on many occasions
invalidated statutes seeking socio-economic reforms. One would not be wrong in
saying that the courts on such occasions have acted as a "third
chamber" of Parliament or as a "super legislature." The power of
Parliament to amend the Constitution is a positive check and control over the
misuse of its powers by the judiciary. If that check is in any way removed or
weakened, it would be almost illusory to talk about control of misuse of power
by the judiciary. This situation is a potential threat to democracy itself.
(D). Invasion of
Freedoms by Private Persons:
At times a threat to fundamental
rights may come from private individuals or groups of individuals. The
constitutional guarantee of rights may be of no avail if private invasion of
such rights is allowed. Blackstone in his Commentaries had assumed that the
fundamental rights were rights not only against the government but also against
private coercion.[15]
Those rights in his view are to be protected against private as well as public
invasion. The judiciary, as a custodian of the rights of individuals, has a
duty to protect against private encroachment upon these rights. The judiciary
can give protection in at least three ways. First, by directly ruling against
private invasion of fundamental rights.[16]
Second, by enjoining the state to protect citizen's rights against private
coercion because the Constitution imposes a positive duty upon the state to
ensure that citizens are protected and not impeded in exercise of their rights.
Third, by upholding the restrictions imposed by the legislature on the rights
of an individual or group of individuals for the purpose of protecting the
rights and freedoms of other persons, i.e. by supporting legislation which
itself forbids private infringement of rights. It would appear that in cases
involving infringement of fundamental rights by private persons the judicial
attitude is yet to crystallize. The dearth of cases in this area appears to be
due to a wrong impression not only of the government but also of public figures
and even lawyers that the protection against encroachment upon fundamental
rights is available only against the government.
(E). Judges and
Socio-Political Stresses in the Society:
The judiciary cannot stand aloof
and apart from the mainstream of society. They must be sensitive to the
policies and the set economic and social goals of the nation, its economic and
political pressures, and social stresses existing within the society.[17]
Failure to understand socio-political realities of a particular society may on
occasion lead to unhappy conflict between the judiciary on one hand and the
executive and the general public on the other. At times, judges may face very
difficult and delicate choices. Cases before them may have international
political overtones and may involve highly sensitive issues, or policy matters
to which a particular nation is fully committed. In such situations, the mark
of the utility of a judicial decision is not the soundness of its logic, but
its role in stabilizing the social and political activity of the nation. The
purpose of our discussion here is not to examine the merits or demerits of the
above decisions but to put forward a point that indifference to the
socio-political realities of the society in which it is operating may affect
the credibility of the judiciary. Whether public criticism of judges in such
situations constitutes a serious threat to judicial independence is a matter of
opinion, but failure to respond to social-economic and political realities too
often leads to a lowering of the prestige of the judiciary. Judicial independence
depends also upon the support of public opinion, without which the independence
of the judiciary must inevitably be in grave danger.
(F). Judges and
Constitutional Breakdown:
One of the most difficult
problems which affects judicial independence in the Third World countries is
that of the constitutional breakdown or revolution, which occurs because of
constitutional inadequacy or of a successful coup d’état generally followed by
imposition of martial law or army rule. Constitutional breakdown poses serious
problems. It creates an environment in which constitutional and conventional
restraints become inoperative. "The legislative and judicial branches
become subordinated to the executive which may itself become subordinated to
the military. The independence of the judiciary is undermined by "laws
creating special courts and by laws and decrees depriving the courts of
jurisdiction to review executive and legislative actions. A situation is
created in which the judiciary faces a seemingly intractable dilemma whether to
deny validity to the new regime or to legitimatize it. A related problem is
that of governmental declarations of emergency, which similarly undermine
judicial independence. However, there is a notable difference. In cases of
constitutional breakdown, the courts face the problem of whether or not to
legitimatize the new regime which has abrogated the constitution; in cases of
declaration of emergency, they do not face such a choice. This is because in
most of the Third World countries the Constitution itself empowers the executive
to declare a state of emergency in certain situations. In most of the countries
the courts have generally taken the view that they would not go into the merits
of the declarations of emergency. They refused to review the circumstances
leading to an emergency declaration on the ground that these were essentially
matters to be determined according to the judgment of the responsible ministers
in the light of their knowledge and experience.[18]
In general, the judicial response to emergencies has been very passive. In a
sense this is an understandable application of the doctrine of the separation
of powers: i.e., courts do not decide political questions.
(G). Practical Judicial
Independence in Bangladesh:
We have already got knowledge
about the practical independence of judiciary throughout the world. Now we have
to estimate the practical implementation of the elements of independent
judiciary in Bangladesh. It cannot be denied that the judiciary of Bangladesh
sometimes tries to be neutral as it is independent and neutral in the letters.
If we estimate the neutrality of judiciary of Bangladesh we will find some
cases in which it has become neutral. If we say about the Masdar Hossain case
we will see that the judiciary played the most neutral role in giving the
judgment. But the matter of sorrow is that we will find very few cases like
this one. The overwhelming majority of judgments are under severe criticism. It
is the shortcoming of our judiciary. With the decision of Masdar Hossain’s case
the judiciary has become independent but it is still limited to letters. The executive
organ is still influential over the judiciary and the judiciary is compelled to
obey all the orders of the executives only for political reasons. So, it is
crystal clear that practically the judiciary of Bangladesh is not independent.
Chapter 4: Strengths
and Weaknesses of Judicial Independence in Bangladesh: Solution and the Core
Idea of this Writing
(A).
Strengths of Judicial Independence in Bangladesh:
The higher judiciary of Bangladesh that
comprises the Appellate and High Court Divisions hears appeals from orders,
decrees and judgments of subordinate courts and tribunals, disposes of
allegation of human rights violation and enjoys the power of superintendence
and control over all courts and tribunals subordinate to it. Like many other comparable
institutions of developing democracies, it often confronts with an additional
challenge of strengthening constitutional order that often are threatened by
lack of democracy, autocracy of the executive organ and disregard to or
derogation from constitutional norms. In doing so, it is authorized to take
measures to enforce the organs and agencies of the government to act within the
rules and principles of constitution. The judiciary could not perform its
solemn duty unless its independence is guaranteed and protected. This
protection is the strength of the independent judiciary. Some more strengths
are given below-
(a) Articles 94(4) and 116A of
the Constitution of the People’s Republic of Bangladesh guarantee that the
judges shall be independent in the exercise of their functions.
(b) Judges enjoy a fixed tenure
of office. For this specified tenure and age they can deliver judgment without
any hesitation.
(c) Judges are subject to removal
for specified reasons and through specified procedure of an inquiry run by the
Supreme Judicial Council.
(d) The power of removal or
discipline of judges is not exclusively vested on the executives.
(e) At present the media of
Bangladesh is very strong. It plays a vital role in the materialization of the
practical independence of judiciary.
(f) There is a well-organized
legal professional council which plays a significant role in maintaining
judicial independence and accountability.
(B). The Weaknesses of Judicial
Independence in Bangladesh:
Although the Constitutional
supremacy is guaranteed by the Constitution of Bangladesh, there are numerous
weaknesses which undermine the Constitutional supremacy and continuity, as well
as the Democracy. Some of my findings are summarized below-
1. Lack of the norms of parliamentary democracy. The democracy of our country cannot be
properly nourished, for this the proper democratic culture cannot be yet grown
up. For these the political parties cannot tolerate the opinion of others, and
they have existed fraction and lastly the military take the chance.
2. Lack of a non-partisan strong civil society. A non-partisan
civil society, one of the foremost pre-conditions of the success of liberal
democracy, which is able to pressure create and bargain and, negotiate with the
state without the influence of political parties in favor of the citizen is yet
to flourish in Bangladesh. Most of the CSOs, specifically in the post-military
phase, are guided by the vision of the political parties, instead of pursuing
an independent policy.
3. Lack of bold and independent decisions of the judiciary at the
times of constitutional crisis. The role of the superior judiciary at the
testing times of the Constitutional crisis in Bangladesh, it has been very
disappointing and detrimental to the development of political institutions
based on the universal principles of democracy and popular sovereignty. The
judiciary has consistently compromised on its own powers and independence.
A consensus appears to be among
analysts that judges of the superior courts in Bangladesh, save few exceptions,
could not resist external pressure, particularly of executive, and always
judged over constitutional questions to appease the government of the day, at
the cost of the fundamental rights of the citizens of Bangladesh and
surrendering the political sovereignty of the people of Bangladesh.
4. The role of the individual judges in achieving extra benefit by
the extra-constitutional government. It’s a strategy by them to take the judges
into trap and use them in their own interest. It has been seen in Bangladesh in
several times.
5. Lack of the democratic institutional norms and values, and
patience to honor others opinion.
6. The Conspiracy of the anti-liberation stream by the foreign
backed is also one of the causes of such extra-constitutional martial law.
7. Throughout corruption of the politician and executive is also
one of the main causes of such extra-constitutional martial law.
8. Lack of cohesion within the ruling political party and the oppositions.
9. In Bangladesh in the name of President
it is the Law Ministry which decides whether and if so how many new judges
would be recruited. The executive control over the whole process is exercised
in order partly to outnumber the judges appointed by the previous government.
10. In the absence of
constitutional obligation of the president to consult with the Chief Justice in
appointing other judges of the Supreme Court, “conventional” consultation is
limited to the list of candidates chosen by the executives. Unlike India and
Pakistan. Article 124 of the Constitution of India categorically asks the
President to engage in prior consultation with the Chief Justice of India in
making appointments in the higher judiciary. The second judge's case judgment
of 1994 ruled that the CJI must take into account the views of the two senior
most judges of the Supreme Court to ensure that the opinion is not merely his
own individual opinion but is in fact the collective opinion of a body of men
at the apex level in the judiciary. Likewise, as interpreted in constitutional
petition no 08 and 09, the Pakistan Constitution requires consultation with
chief justice for appointments in the Supreme Court and High Court.
(11) The Law ministry by
providing the “secretarial” service controls the information needed for
considering the suitability of particular persons for judicial appointment.
(12) Bangladesh
Constitution has omitted to specify the qualifications needed for appointment
of judges. Article 95 only mentions the “disqualifications” i.e. nobody would
be considered for appointment unless s/he is a citizen and an advocate of the
Supreme Court or judges in the subordinate court for at least ten years. It
however authorizes the Parliament to enact law for specifying qualifications
which has yet not been done ostensibly to protect the scopes of political
manipulation in judicial appointments.
Some other points:
(1) Executive Dominated Judiciary
(2) Lack of Popular Access to
Justice
(3) Government Negligence
(4) Lack of Consciousness
(5) Lack of Political Will
(6) Lack of Interaction with
Other Courts
(7) Overlapping Competencies
(8)Lack of Strong Civil Society
(9) Corrupted lawmakers
(10) Lack of Democratic Culture
(C)
Solution to the Weaknesses of Judicial Independence in Bangladesh:
The above
findings clearly suggest that reform measures are absolutely vital for
strengthening independence of the Higher Judiciary. Many of the above loopholes
in independence of judiciary could have been neutralized by an efficient system
of monitoring the performances of the Judges. Bangladesh constitution has
established a Supreme Judicial Council in order to ensure accountability of
judges by prescribing code of conducts and investigating their incapacity or
misconduct. It is really a good initiative if can be implemented properly. To
eradicate all the problems we can follow the following steps-
(a). Increase in number of
judges should be decided by Parliament, consultation with the Chief Justice or
a collegium of Senior Judges in appointments in the Supreme Court should be
made mandatory and the opinion of the Chief Justice or the aforesaid collegium
should enjoy primacy in those appointments.
(b). The Parliament must,
under the mandate given by Article 95(2) (c) immediately elaborate
qualifications for appointment in the higher judiciary. For example: in regard
to 10 years’ experience in the High Court, the Act should ask for ancillary
requirements: the person considered for appointment must pay subscription regularly
for ten years, must have experience of conducting at least 3 cases alone or
with seniors every year in his first five years as advocate and alone in the
next five years.
(c). In order to make the
appointment process more competitive, in the light of Article 44(2) of the
constitution, writ jurisdiction of Hebius Corpus and the powers under Article
102(1) should be conferred to the District Courts at the divisional
headquarters and provision should be made for eligibility of lawyers practicing
there in appointments in the High Court.
(d). Democratization of the political parties needs to be
considered as a major precondition in order to materialize the scope of Western
liberal democracy in Bangladesh that was created in 1990. Some measures can be
taken, with a view to minimize the malpractices and to strengthen intra-party
democracy. This can stable the democracy as well as the Constitutional
continuity and supremacy. Without democratic government the constitutional
supremacy and continuity cannot be maintained.
(e). A special parliamentary committee can be formed to examined
the constitution and prepare proposal to this effect People expectation. The
special committee will work efficiently to establish supremacy of the
constitution which will be the embodiment of the people’s will.
(f). In the verdict of 7th and 5th amendment case the court
declared the extra-constitutional way to come into power as void ab-initio and
as punishable offence. And in the 15th Amendment the parliament ensures the
constitutional supremacy again by inserting an Article. However, the reality of
Bangladesh can be completely different, if the political parties are not
sincere about it.
(g). The people of Bangladesh have to play a major role in
protecting independence of the judiciary as well as to constitutional
supremacy. Public opinion must be sensitive and reactive to any interference in
the judicial affairs. The political parties, civil society organizations, bar
associations, press and media can effectively and easily mould public opinion
in this regard.
(h). Independence of judiciary cannot depend solely on the
structure of the government and the judiciary’s formal role within it. It
depends on the judges’ character also. Judges should develop judiciary as an
institution. They must collectively as well as individually resist any external
interference in the Constitutional affairs as the guardian of the Constitution.
(i). To achieve the independence of the judiciary as the guardian
of the constitution and to have efficient judges of integrity, the whole system
of the judicial appointment needs overhauling. The system of appointment of
judges is of paramount importance to ensure independence of judiciary because
it is primarily the human being that makes or mars the institution. The judicial
appointment must be made more competitive and more transparent. The executive’s
power to appoint judges to the superior courts must be limited.
(j). The corruption of the executives and politician must be
stopped.
(k). The accountability of the Judges
should be enhanced by modifying existing code of conduct and formulating rules
for systematic monitoring of the compliance with those rules, enhancing public
access to information in the light of recently passed Right to Information Act
and enhancing the mandate of the Supreme Judicial Council to initiate suo moto
enquiry into conduct and capacity of judges.
(l). Article 99 of the
original constitution should be revived to impose total ban on all types of
post-retirement appointment in the service of the republic
(m). The Office of the register should be
strengthened to act as a full-fledged secretariat in order, among others, to
provide the secretarial service for the appointments in the Higher Judiciary.
(n). The salary and remuneration of the
Judges should be increased to attract more competent Advocates to this service
and training of the additional Judges of the Higher Judiciary should be
arranged.
(D). The Core Idea of this Writing:
The wistful endeavor of critical
discussion of the conditions of the independence of the judiciary from the
executive of Bangladesh relating to that of the different countries of the
world exists in this writing. We have already become known from here that
the Independence of Judiciary is a constant struggle for many part of the
world. In the sub-continent, countries even like India which has stronger and
longer democracy are still learning from its inadequacies in ensuring judicial
independence. Bangladesh lacks more in legal framework as well as in practice
in establishing such independence. Although a number of measures are taken
following the famous Masdar Hossain case to beef up the independence of the
lower judiciary, little, if not nothing, has so far been done in regard to
Higher Judiciary. We have found here several drawbacks in the maintenance of
the independence of judiciary of Bangladesh which resemble the title of the
writing that only separation of the judiciary from the executive is not enough
to ensure the independence of the judiciary in Bangladesh. We have also
found that in most of the Third World countries, effective constitutional
safeguards are provided (at least in theory if not in practice) so that the
judiciary is free from the executive control that could be exercised through
appointment, removal, suspension, transfer, salary reduction or administrative
retirement. Our sample survey of case law from various countries may not be
adequate to support firm conclusions, but broad trends can be noticed. In the area
of personal rights the courts have leaned more toward the executive interests
in safeguarding public security, public order, etc. as against the individual's
freedom of expression, freedom of assembly and association, freedom of movement
and right to personal liberty. They have adopted a restrained approach in these
areas and have adhered to the strict interpretation of the law, whereas in the
cases involving property rights the courts have adopted a flexible approach and
have shown much activism. Cynics may call this a false activism. At times the
judiciary has flouted rules of natural justice and has transgressed the limits
of its powers to encroach upon the areas of other organs of government to
protect vested property rights. The concept of judicial independence carries
with it an implied limitation that the judiciary remains within the bounds of
its power and follows well- established principles of law.
Again if we
want to judge the condition of our country regarding the independence of
judiciary we will find only judiciary but the term independence is still in
dream. Frankly speaking, if we concentrate on the recent judgments of our
courts we will be able to recognize the degree of the independence of judiciary
of Bangladesh. There are very few judgments of higher judiciary without the
influence the executives and politics.
Conclusion:
Judicial independence is a
concept fraught with ambiguities and is difficult to achieve in practice. Judiciary
forms the basic element of the statehood shaped by deliberate policies to
establish social justice and equality of all citizens. In a modern society it
must, therefore, reflect the fundamental principle of state policy as well as
universal value and ethics of international human rights regime, which are not
fundamentally altered by cultural or class differences. In order to meet the
challenge of the next century and to accomplish the constitutional goal, to
secure equal justice in economic, political and social life, it is important to
extend the judicial mind and the due process in all spheres of administrative
dealings with the affairs of men and society. Even if there are sufficient
constitutional safeguards, much depends upon the executive and individual
judges. In countries where the executive is very powerful it can be achieved
only to the extent to which the executive is willing to concede. On the other
hand, in countries where independence of the judiciary is in general respected
and the judges are able to decide against the government of the day, it cannot
always be said that the judiciary is completely independent. It is possible
that individual judges might be influenced by powerful economic or political
interests, or by the values acquired as a result of their social and cultural
background. After all, judges are human and as such are vulnerable to human
frailties. In the words of Justice Tan Sri Haji Mohamed Azmi: "It must
always be borne in mind that judges are, after all, human and although they are
professionally trained to be fair and fearless in discharging their functions,
they are as vulnerable as anyone else to human frailties." It becomes
clear that the problem of achieving judicial independence is not only a legal
problem, but a social, cultural and political problem as well. The
questions and doubts as to an independent judiciary have come into public
discussion of the time and again due to controversial appointments to the High
Court, arbitrariness in judicial actions, appointments of Chief Justices and
withdrawal of cases on political ground in the last four years even after the
formal separation of the judiciary from the executive. In fine, we can say that
despite the formal separation of the judiciary from the executive, the
executives along with the powerful politicians are still influencing heinously
on the decisions of the judiciary. That is why the judiciary of Bangladesh is
not independent practically though formally and for this reason only separation
of the judiciary from the executive is not enough to ensure the independence of
the judiciary in Bangladesh.
Bibliography
(1). Robson, W.A. 1951. Justice
and Administrative Law.
(2). Talukder,
Dr. S. M. Hassan on Law and Judiciary in Bangladesh: An Appraisal (2011).
(3). Peter Gerangelos on The Separation of Powers and Legislative Interference
in Judicial Process: Constitutional Principles and
Limitations (2009) (Hart Publishing, Oxford)
(4). Roger
Masterman on The Separation of Power in the Contemporary Constitution: Judicial
Competence and Independence in the United Kingdom.
(5). Judicial
Independence in the Age of Democracy: Critical Perspectives from around the
world edited by Peter H. Russel and David M, O’Brain
(6). The
Culture of Judicial Independence Edited by Shimon
Shetreet and Christopher Forsyth
(7).
Judicial Independence and Accountability: A Comparative Study of Contemporary
Bangladesh Experience by Sarkar Ali Akkas.
(9).
Separation of Judiciary and Judicial Independence in Bangladesh by Md. Awal
Hossain Mollah
(10).
Independence of the judiciary by Arjana LLANO
(11).
The Independence of Judges: The Uses and Limitations of Public Choice Theory by
Richard A. Epstein
(12).
Talukder, Dr. S. M. Hassan on Law and Judiciary in Bangladesh: Law and Practice
(13).
Some important articles on the Internet.
[1]Separation of Judiciary and
Judicial Independence in Bangladesh By Md. Awal Hossain Mollah
[2] The Problems of
Independence of the Judiciary in Bangladesh By Justice Naimuddin Ahmed.
[3] Independence of the Higher
Judiciary By Asif Nazrul
[4] The Problems of
Independence of the Judiciary in Bangladesh By Justice Naimuddin Ahmed.
[5] Separation
of Judiciary and Judicial Independence in Bangladesh By Md. Awal Hossain
Mollah.
[6]
Claire Palley, "Rethinking of the Judicial
Role, The Judiciary and Good Government" (1969), 1 Zambia L.J. 1, note at
30.
[7]
G. Robertson, "Malaysia: Justice Hangs in
the Balance," The Observer, London, August 28, 1988; A.J. Harding,
"The 1988 Constitution Crisis in Malaysia," 39 LC.LQ. 57 (1990).
[8] Observations of Tulzapurkar J. in
S.P. Gupta v. President of India, A.I.R. 1982 S.C. 149 at 410.
[9] Independence of Judiciary
in Bangladesh: an overview By Md. Awal Hossain Mollah.
[10] S.P. Gupta v. President of India,
A.LR. 1982 S.C. 149.
[11] [1970] A.C. 379 (P.C.).
For comments, see Yash Ghai, "The Politics of the Constitution: Another
Look at the Ningkan Litigation," in Comparative Constitutional Law 106
(M.P. Singh ed. 1990).
[12] S.N. Ray, Judicial Review and
Fundamental Rights 220 (1974). D.D. Basu, Commentaries on the Constitution of India (6th ed. 1973-78);
V.N. Shukla, The Constitution of India (D.X Singh ed. 7th ed. 1986).
[13] (1961) 1 All Nigeria L.R. 186.
[14] AI.R. 1967 S.C. 1643.
[15] Richard A Posner, The Economics of
Justice 18 (1983).
[16]
Articles 32 and 226 of the Indian Constitution;
Section 84 of the Constitution of Kenya; Section 30(3) of the Law of the Fifth
Amendment of the State Constitution of 1984 (Tanzania).
[17]
L. Shimba, supra note 14, at 4. See also
observation of S.M.F. Ali J. in S.P. Gupta v. President of India A.LR. 1982
S.C. 149 at 445-46.
[18] Stephen Kalong Ningken v. Government
of Malaysia [1970] AC. 379 at 391.
