“An overview of the concept of Independence of Judiciary”
Introduction:
Bangladesh got it constitution just after one year of the independence in 16th December, 1972. Like other democratic country it has divided the power into three separate organs namely the executive, the legislature and the Judiciary. Bangladesh constitution vests executive power in executives and legislation power in parliament. The judiciary vests on the judiciaries that consist of all the court and tribunals who are basically responsible for ensuring justice in the society. As a result judiciary system should be independence from all types of influence and biasness. But the reality has not been same all the time from the very beginning of our birth. Along with many other reasons the judiciary system has not been able to work independently in our country. People of our country have an age old perception that it is the executive power that actually restrains the judiciary system from work properly. Unfortunately this perception has it proof in the reality. After a long time the historical judgment came across. In November 2007 the subordinate judiciary of Bangladesh is formally separated from the executive in order to strengthen the independence of judiciary. Hence, it cannot be said that the judiciary of our country is working properly and independently. The reason is the judges who are going to ensure the independence of the judiciary are not still independent. The recruitment process of the judges are still being interfered by the political people. In this case the independence of the judiciary system can never be ensured as the applicators of the law are still biased in time of judgment. In this way we are now in the same cycle as we were before.
§ Judiciary system and its formation in Bangladesh
The present legal system of Bangladesh owes its origin mainly to 200-year British rule in Indian Sub-Continent. The Civil Courts Act, 1887 and the Criminal Procedure Code, 1898 as amended up to 2007 is the main legal basis of the present court structure particularly the subordinate judiciary in both civil and criminal side. The judiciary system of Bangladesh is composed of two divisions:
· The Supreme Court
· The Subordinate Court
· The Supreme Court
The highest court in Bangladesh is the Supreme Court. Supreme Court was created by the order Article 94(I) of the constitution of the People Republic of Bangladesh. It consists of two divisions, namely the Appellate Divisions and the High Court Division. The functions of the two are distinct and the appointment of judges to each is separate.
The Appellate Division: The appellate division of Bangladesh consists of the chief justice and other senior justice. The chief justice is the head of all the judges of appellate and high court division. The main function of Appellate Division is to discharge appeal case charged against the verdict of High Court Division. This decision is final and every citizen of our country has to abide by this kind of judgment. The source of power for appellate division is the constitution and the ordinary law.
The High court Division: The high court division has two benches. One is single bench and another is divisional bench. Like the appellate division the high court division has two sources of power such as the constitution and the ordinary law.
The lower judiciary in Bangladesh are consists of two parts. The district courts and the session courts, with 10-30 judges sitting in each of the country’s 65 districts. Then there are also Magistrates courts, District Courts etc.[1]
§ Meaning of separation of judiciary
Separation of judiciary means that the judiciary should be free from the interruption of executive or legislation department of the government. It never says that there will be no relation between them. It only demands that there should not be any influence on judiciary. Separation refers to a kind of judiciary which does the judgment only on the basis of law without any restriction, influence, inducement, pressure and threat.
Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence. The concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive).
§ Background of the separation of judiciary in Bangladesh
Just after we got our constitution in 1972, provision was made in Article 22 as a Fundamental Principles of State Policy that the state shall ensure the separation of the judiciary from the executive organs of the state. This article was supposed to be one of the main bases of the judiciary separation of our country. But no government has taken the initiative to implement the directives of the article 22.’ In 1976, a Law Committee headed by Justice Kemaluddin Hossain recommended to implement separation of subordinate judiciary in three stages’. In the mean time in 1987 the initiative were taken by amending code of Criminal Procedure, 1898. But due to some unknown this was not placed in the parliament. After the fall of the autocratic leader General H.M. Ershad in 1990 expectation raised higher, but the next two governments didn’t do anything in this regard. At last in 1999 the Supreme Court issued a 12- point directive in famous Mazdar Hossain case to ensure separation of judiciary from the executive.
But both the government worked very slowly on this. 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. A full bench of the Appellate Division of the Supreme Court on January 10, 2007 ordered the then CG to publish various rules on separation of the judiciary through gazette notification within a week and remove major hurdles for the separation. Finally the last CG in a landmark move on January 16, 2007 published the gazette notifications of four rules relevant to separating the judiciary from the executive. The Chief Adviser of the CG and finally the President of the Republic have also endorsed their consent to the documents of those rules.
§ Judicial separation in the Constitution of Bangladesh:
The judicial independence is unconditional according to the constitution of People’s Republic of Bangladesh. There are several articles which clearly describe the independence of Bangladesh. Some of them are as follows:
· Article 22 clearly state, “The state shall ensure the separation of the judiciary from the executive organs of state.”
· Article 95(1) addressed the method of appointment for the Supreme Court: “the president shall appoint The Chief Justice and other Judges.”
· Articles 115 talks about the appointment of judges, “Appointment of persons in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf.”
· Article 116 says,” The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”
The constitution also talks about the independence of the judiciary. Art. 35(3) of the constitution provide “Every person accused 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 provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975 discussed later in the paper: 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.
§ International Standard of Judiciary Independence:
Almost all of the countries in world have more or less political interference on their judiciary system. But now a day it is not only a domestic matter. It has got some international standards. For example: the Universal Declaration of Human Rights (1948) and European Convention on Human rights (1950) etc.
Besides that in 1985, the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan adopted some principle that guarantee the judicial independence. The principles are divided into six categories.
1st group of Principle:
“The first concerns general issues of judicial independence: independence must be guaranteed, but this is not enough. The judiciary must also be given jurisdiction; it must receive the resources necessary to perform its tasks; its rulings must be implemented; and tribunals eschewing established procedures must not be used as a device to avoid the judiciary.”
2nd group of Principle:
It is concern with the freedom of expression. It is a very volatile area because it varies country to country greatly.
3rd group of Principle:
The third principle introduces the qualification, selection and training of judges.
4th group of principle:
This group determines the terms and condition of the services of judges.
“Here the principles require that such matters be governed by law, that judges serve either until retirement or until a legally-fixed term expires, and that assignment of cases be based on internal administrative grounds.”
5th group of principle:
These are about their professional secrecy and immunity.
6th group of principle:
The sixth and final set of principles involved discipline, suspension and removal of judges, requiring appropriate processes and insisting that judges may only be disciplined for cause.
§ Scope of political interference :
Though after a long time and procedure the Judicial separation has been done but in reality the independence is still in questions. A careful observation will reveal that still there are some ‘hole’ that actually weakens the judiciary system. Still the politicians have the chance to interfere in the judicial system. So ultimately the separation is still in pen and paper. Here are some of the issues where the executive influences are still in force:
· Number of judges:
whereas In India and Pakistan, the decision to increase number of judges in the Higher Judiciary is a matter of parliamentary scrutiny and informed debate, 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. For example: the previous BNP-led Alliance government in their 5 years term had appointed 45 judges which were more than the number of existing judges at the time of their assumption in power in 2001. Likewise, although 17 new judges were appointed or reappointed during the first year of the present Awami League regime, they have already announced a decision of appointing 50 new judges soon.
· Consultancy with the precedent:
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. In there as well, the Law ministry by providing the “secretarial” service controls the information needed for considering the suitability of particular persons for judicial appointment.
· Qualification of the Judges:
Bangladesh Constitution has omitted to specify the qualifications needed for appointment of judges. It has only mention the disqualification of the candidates. But it has given the authority to 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.
· Lack of specification:
There is no legal obligation for i) confirming services of judges after their two years experiences as additional judge or ii) elevating senior most judges to the Appellate Division or iii) appointing the most senior judge as the Chief Justice. The conventions in latter two areas cannot be said to be firmly established to ensure that political expediency does not dominate.
§ Results of interference
· Politically gainful appointment is also evident in growing disregard to inadequacy in quality and experience of the candidates and also in preferring loyal Advocates than to the qualified district judges in the appointments in the Supreme Court.
· Appointment of a good number of partisan and less competent judges in the SC has had an adverse effect on the quality of administration of justice and on its independence, as those judges are often more succumbing to political influence and corruption. Such impact of improper appointment in last ten odd years could be discerned from occasional decline in administration of justice. Although Higher Judiciary is still respected and honored by people, there are growing allegation of unfair practice in disposing of bail petition, delay in disposing of cases, politically bias decisions and erosion in supervising subordinate judiciary etc.
· So, the separation does not lead to fairness and independence, and political influence has made it the “pen & Paper separation” not in reality.
§ Conclusion:
Until the formal separation of the judiciary from the executive the judiciary remained in a vulnerable position, where the lower courts were controlled by the executive and the appointment procedure of judges to the Supreme Court depended to a large extent on political allegiance. However, the separation of the judiciary has not met people’s expectations in terms of its independent functioning. The subordinate courts, despite being under the control of the Supreme Court, continue its dependence on the executive which has undermined its effective functioning. Measures designed to insulate the judiciary from political interference have not thus ensured the impartiality of the institution due to its administrative dependence.
Appendix
1. Mollah, A.H (2005). Separation of judiciary and judicial independence of Bangladesh. Retrieved from http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan020065.pdf
2. Hossain, S.(February, 2012). Separation of judiciary from executive. Retrieved from https://www.lawyersnjurists.com/resource/articles-and-assignment/separation-of-judiciary-from-executive/
3. The constitution of Bangladesh
4. Najrul, A. (February, 2010). Independence of higher judiciary. The Daily Star.
5. Autheman, V. (2004). Global Best Practices,Judicial Integrity Standards and Consensus
Principles, The Rule of Law white paper series.IFES.
6. Institute of Governance Studies (2009). Institutionsof Accountability: The Judiciary. Background
Paper, Dhaka: BRAC University.
7. Sherif, A.O. Brown, N.J. Judicial Independence In The Arab World: A study presented to the program of Arab governance of the United Nations development program. (p. 4). Retrieved from www.deontologie-judiciaire.umontreal.ca/…/ONU_jud-independence.
[1] Mollah, A.H (2005). Separation of judiciary and judicial independence of Bangladesh. (p. 4) Retrieved from http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan020065.pdf