Q: “An independent judiciary free from influence of legislative and executive organs of the state is the prime requirement of a democratic state”. Discuss
The question calls for a discussion about the separation of powers of the state. The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. In any state, three essential bodies exist: the executive, the legislative and the judiciary. It is the relationship between these bodies which must be evaluated. However, the doctrine of separation of powers does not insist that there should be three institutions of government each operating in isolation from each other. Indeed, such arrangement would be unworkable, particularly under a constitution dominated by the sovereignty of parliament. Under such an arrangement, it is essential that there be a sufficient interplay between each institution of the state. For example, it is for the executive, for most part, to propose legislation for parliament’s approval. Once passed into law, Acts of Parliament are upheld by the judiciary. A complete separation of the three institutions could result in legal and constitutional deadlock. Rather than a pure separation of powers, the concept insists that the primary functions of the state should be allocated clearly and that there should be checks to ensure that no institution encroaches significant upon the function of the other.
The executive formulates policies and executes them. In other words, it runs the country for us. It includes the Prime Minister, Minister of the Crown, members of the Parliament, the civil service, local authorities, police and armed forces.
A legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise taxes and adopt the budget and other money bills. Legislature are known by many names, the most common being parliament and congress.
The judiciary adjudicates or resolves disputes between state institutions, between state and individual and between individuals. It includes all the judges in the courts of law and all those people exercising judicial functions.
SEPARATION OF POWERS IN UNITED KINGDOM
Under the uncodified, largely unwritten British constitution, there is no strict separation of powers. It is basically a system for check and balance which ensures that powers are not abused.
The independence of the judiciary is essential to the rule of law and to the continuance of its own authority and legitimacy. The independence of the judiciary in England and Wales from political pressures results from a combination of statute and convention. Of the three main branches of central government, the judiciary comes closest to being separate and independent. For England and Wales this branch comprises most importantly the Supreme Court of Judicature, which consists of the Court of Appeal, the High Court and the Crown Court. The county court and the magistrates’ courts may be seen as a further branch of the judiciary. The Appellate Committees of the House of Lords sit as the supreme court of appeal in the United Kingdom for England and Wales, Scotland and Northern Ireland. In addition there is a network of administrative tribunals, many of whose members are part-time appointees, exercising judicial functions, which may also be regarded as part of the judiciary, though the provisions for their appointment, tenure and remuneration differ from those in respect of the Supreme Court and the Lords of Appeal in Ordinary.
The overlap between the three branches may be illustrated by the position of Lord Chancellor, who was a member of the cabinet, while being the head of the judiciary and also chaired the House of Lords. Fortunately, the role of the Lord Chancellor is now being reformed.
The Constitutional Reform Act 2005 removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now performed by the Lord Chief Justice. The Lord Chancellor no longer sits as Speaker of the House of Lords, which will now elect its Speaker from among its member. In future, the Lord Chancellor need not be a senior lawyer and may be a member of either House of Parliament.
Currently, the executive, judiciary and legislature have some common members. United Kingdom basically adopted the system of ‘Parliamentary Executive’, blending legislature with the executives. For example, the Home Secretary who is a senior member of the cabinet (executive function) is also a member of the House of Commons (Legislative function). He also exercise an adjudicative function (judiciary) within criminal process, such as, the granting of mercy and pardon in the name of the Crown.
A key aspect of the doctrine of the separation of powers is the application of judicial review, whereby the court can rule on the legality of the executive action. Similarly, in royal prerogative judicial reviews serve as the check and balances to ensure that executives (ministers) do not abuse their powers.
SEPARATION OF JUDICIARY – BANGLADESH PERSPECTIVE
The constitution of Bangladesh vests the executive power in the executive and the legislative power in parliament. The judiciary comprises all courts and tribunals, which performs the task of ensuring rule of law in the society. 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 Bangladesh, the President in consultation with the Supreme Court according to the constitution appoints judicial Executive abuse of this constitutional order result in biased appointment of judges, and other officers of the judicial cadre, favoring individuals who support the governing political party. 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 judicial independence can be classified in four ways,
§ Substantive Independence of the Judges: It refers to the independence of judges to arrive at their decisions without submitting to any internal or external pressure.
§ Personal independence: The judges are not dependent on government in any way which might influence them in reaching at decisions in particular cases.
§ Collective Independence: That means institutional administrative and financial independence of the judiciary as a whole
§ Internal Independence: It refers to independence of a judges or a judicial officer from any kind of order or pressure from his judicial superiors and colleagues in deciding cases.
Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus gaining public confidence in it. The judiciary in Bangladesh, headed by the Chief Justice, consists of the Supreme Court and the Subordinate Courts. The Supreme Court has two divisions, the Appellate Division (seven judges) and the High Court Division (72 judges). They have separate functions and separate appointments are made to each. The Subordinate Courts comprise of the Civil Courts, The Criminal Courts, The Special Courts and Tribunals. The persons presiding over all subordinate courts (other than Magistrates’ Courts) are persons in judicial service.
A total of 223 judicial officers or lower court judges in 1995 filed a writ petition in high court seeking to separate judiciary from the executive because their service were being regulated by the government’s law ministry in violation of the Constitution. The high court had in 1997 ordered the separation while the Appellate Division upheld the verdict in 1999, rejecting a government appeal. In 1999, Bangladesh’s apex court, the Appellate Division of the Supreme Court, gave a landmark judgment in Secretary, Ministry of Finance v Masdar Hossain (the Masdar Judgment). This judgment re-affirmed the constitutional mandate for independence of the judiciary and laid out a roadmap to achieving separation of the judiciary from the executive. However, all the democratic governments were moving towards the implementation process at a considerably slow pace. The draft procedure undertaken by the governments for separation of judiciary are given below.
- The formation of Bangladesh Judicial Service, establishment of pay commission, appointment in service and the procedures of temporary dismiss and remove, 2001.
- Bangladesh Judicial Service (Service Constitution, Composition, Recruitment and Suspension, Dismissal & Removal) procedures, 2001.
- Judicial Service Commission Procedures, 2001.
- The Code of Criminal Procedures 1898 (Amendment) Ordinance, 2001.
But these drafts have certain flaws. Constitutional amendment is essential if the judiciary is to be separated from the executive. Article 48 and Article 55 must be amended to avoid conflicts related to control and appointment of judges. Secondly, the promotion and other facilities given to the magistrates are not clear in the draft. Thirdly, mobile court plays a vital role to sustain the law and order of the country. Currently, the executive controls it but according to the Criminal Procedure Clause-190, magistrate cannot direct the mobile court. So it is a confusing matter that who will control mobile court. Finally, it is not mentioned in the draft that who will provide salary to the Judges or Magistrate if the Judiciary is separated. The major step towards separation was taken by the interim government responsible for conducting free and fair election. The Bangladesh’s Military-backed Caretaker Government approved formal separation of judiciary from the executive on November 01, 2007. The Chief Adviser marked the formal separation of the judiciary with appointment of 218 judicial magistrates.
JUDICIAL INDEPENDENCE IN THE CONSTITUTION
Part VI of the constitution deals with the judiciary. Article 7 provides that all powers in the Republic shall be effective only under and by authority of the constitution. Article 35(3) of the constitution provides 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 was part of the detrimental changes to the constitution made in 1974 and 1975. Article 22 mentions that the state shall ensure the separation of judiciary from the executive organ. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 and 116.
Constitution of 1972 framed explicit provisions mandating independence of the judiciary and its separation from the executive at all levels. In the next three decades, amendments were made under different regimes to the original constitutional provisions. In the post ‘democratic’ years since 1990, the judiciary at all levels has been caught up in the partisan political divisions affecting the major institutions of state. In the absence of any legislation from any party giving force to the constitutional mandate for separation, it was ultimately the Supreme Court which gave directions in the Masdar judgment for effecting separation.
In Pakistan, the new Constitution of 1956 called for the State to ensure separation of the judiciary. In East Pakistan, new legislation (the 1957 Act) envisaged dividing the Magistracy into two classes, Executive and Judicial. The Executive Magistracy was to comprise of District Magistrates, Additional, Sub-Divisional and Special Executive Magistrates. The Judicial Magistracy was to consist of Judicial Magistrates, and Magistrates of the First, Second and Third Class. However, this law did not come into force. A major step towards separation was taken with the establishment of the Hamoodur Rahman Law Commission which recommended that separation be attempted in both wings on the lines proposed in the 1957 Act. Before any further steps taken to implement these recommendations, the War of Liberation took place, and Bangladesh was established as an independent nation in 1971.
In 1972, the new Constitution supported full separation of the entire subordinate judiciary, including Magistrates. In 1975, the Government enacted the Fourth Amendment to the Constitution which curtailed the powers of the Chief Justice and the Supreme Court in the matter of appointments of both the superior and subordinate judiciary, and Supreme Court’s powers of control of the subordinate courts. In 1978, some of these changes were later reversed by the Second Proclamation Order No. IV of 1978. In 1988, further incursions into judicial independence were made by the Eighth Amendment to the Constitution which provided for the decentralization of the unitary High Court Division. Following the return of the democratic regime in 1991, the Twelfth Amendment to the Constitution extended High Court’s supervision and control over subordinate court to include tribunals. However, no other steps were taken by any Political Government towards effecting full separation for the next ten years.
THE MASDAR HOSSAIN JUDGEMENT
The Masdar Hossain’s case, popularly known as ‘separation of judiciary’ was pronounced in December 2, 1999 by the Appellate Division of the Supreme Court. The Court directed the Government to implement its 12-point directives to separate judiciary from the executive by creating a new Judicial Service to include the magistracy. The court identified five conditions of judicial independence:
1. Security of Tenure
2. Security of Salary
3. Institutional Independence of Subordinate Judiciary
4. Judicial appointments by separate Judicial Service Commission
5. Administrative Independence and Financial Autonomy of Judiciary
In this long period, three governments respectively have sought extensions of times on one pretext or other as many as 28 times to implement the directives. The Political Government regularly stated that separation of judiciary is largely a policy matter and will implement the judgment sooner or later. Apart from this delaying tactics, statement from governmental level pointed out that the separation of judiciary was not a popular demand and the government may go for a referendum on this issue. Since independence almost every mainstream political party made pre-election pledge that if voted to power, they would separate judiciary from the executive but every government has betrayed with their pledge to this effect. It is pledged in article 22 of the constitution that State shall ensure the separation of the judiciary from the executive.
BARRIERS IN SEPARATION OF JUDICIARY FROM THE EXECUTIVE
Since, the independence of Bangladesh, various governments have regularly pledged to separate judiciary and failed consistently. The real push for setting in place a formal legal framework for separation should have come from the judiciary itself. The main barriers to separation of judiciary were,
- Necessitate of Central Authority: Lack of any identifiable body or institution, such as Higher Courts, Law Ministry, Law Commission or the Bar, to coordinate between concerned institutions.
- Lack of Political Will and Commitment: Executive perceives that full separation may lead to breakdown in law & order, loss of control over criminal justice system.
- No Realistic Stride towards Severance: Laws not backed with administrative measures such as revising service terms & conditions of judicial officers, restructuring service, financial or administrative arrangements.
- Reluctance of Executive Magistrates to join the Judicial Service: Prevailing perception of Judicial Service involving lower remuneration/less prestige & lack of prior assurances on terms and conditions of service or promotion prospects.
- Lack of Proactive Approach by the Judiciary: Insufficiently proactive approach to enforcing compliance with its own orders or guidelines regarding separation.
- Reluctance of Supreme Court in undertaking Administrative Duties: Current Judicial bodies are of the opinion that administrative and supervisory duties are less important than judicial functions.
- Ineffective Planning by the Supreme Court: Failure to take steps in advance for handling cases on files of Executive Magistrates, addressing this additional backlog; risk of further backlog with Judicial Officers taking over such functions.
- Lack of a Wider Constituency or Unification of Voice: The lack of wider public awareness on relevance of separation to the effective delivery of justice to ordinary citizens.
IMPLEMENTATION AND SEPARATION OF JUDICIARY
The judiciary became independent of the executive form Nov 1, 2007 with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending with the magistrate courts. 218 magistrates, 202 from the judiciary and 16 from the administrative cadre service would start running the judicial magistracy. The remaining 453 magistrates will be recruited in three months by the Judicial Service Commission. The judiciary was separated from the executive following the 12-point directive issued by the Appellate Division on December 2, 1999 in its landmark judgment in the government appeal against the High Court verdict in Masdar Hossain’s case.
An independent judiciary is an immensely important body to any government because it is bestowed with three invaluable abilities – the ability to protect the minority, protect the rights of individuals, and ensure the stability and protection of the Constitution. The basic need for the independence of the judiciary rests upon the following points:
1. Ensures the functioning and implementation of Organs: Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers.
2. Interpreting the provisions and pre-requisite of the constitution: Judiciary must be independent and self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms.
3. Disputes and Disparity referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and not partial or committed justice.
The independence of the judiciary hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past. Courts have always tried to uphold the independence of judiciary and have always reiterated that it is a basic feature because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law. The importance of an independent judiciary is clear. Without it, the rights and freedoms of the individual and the sanctity of the Constitution are always sacrificed.
§ The Constitution of the People’s Republic of Bangladesh
Available online: http://www.parliament.gov.bd/Constitution_English/index.htm
§ Barnett, H. (2009). ‘Constitutional & Administrative Law’, 7th Edition Routledge Cavendish
§ Parpworth, N. (2006) ‘Constitutional & Administrative Law’, 4th Edition, Oxford University Press
Secondary Sources – Online Articles
§ ‘Constitutional Reform Act 2005’, The National Archives London. Available online: http://www.legislation.gov.uk/ukpga/2005/4/introduction/enacted
§ Hossain, S. & Alam, T. (2006). ‘Draft UNDP Policy Paper: Practical Steps for Separation of the Judiciary from the Executive in Bangladesh’, Dr. Kamal Hossain & Associates. Presentation to Donor LCG, BRAC Inn. Available online: www.lcgbangladesh.org/Governance/reports/undp_presentation_26Feb06.pdf
§ Mukta, K. M. (2009). ‘Ensuring effective separation of judiciary’, The Financial Express 25 March 2009. Available online: http://www.thefinancialexpress-bd.com/2009/03/25/62143.html
§ Omar, I. & Hossain, Z. (2005). ‘Coup d’etat, constitution and legal continuity’, The Daily Star 24 September 2005. Available online: http://www.thedailystar.net/law/2005/09/04/alter.htm
§ Case: ‘Secretary, Ministry of Finance v Masdar Hossain (1999)’, Bangladesh Supreme Court Bar Association. Available online: http://www.bangladeshsupremecourtbar.com/Masdar_Hossain_Case.php
§ Afroz, T. (2004). ‘Independence of judiciary: What next?’ Law and Our Rights, The Daily Star 04 January 2004. Available online: http://www.thedailystar.net/law/2004/01/01/index.htm
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 Minister of the Crown is the formal constitutional term used in the Commonwealth realms to describe a minister to the reigning sovereign.
 An Uncodified Constitution is a constitution in which there is no single, formal document delineates the powers of a government.
 The House of Lords is the upper house of the Parliament of the United Kingdom.
 The seat of a judge; the bench on which a judge and his associates sit for administering justice.
 Constitutional Reform Act 2005 received Royal Assent on 24 March 2005
 The Houses of Parliament is the meeting place of the two houses of the Parliament of the United Kingdom—the House of Lords and the House of Commons.
 The House of Commons is the lower house of the Parliament of the United Kingdom.
 The Judicial review is the doctrine under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary.
 The Royal Prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the Sovereign alone.
 The system of checks and balances is designed to allow each branch to restrain abuse by another branch.
 (Bari, 1993, 2: Rahman, 2000)
 Chief Justice of Bangladesh is the chief amongst the judges of the Supreme Court of Bangladesh He also is the head of the whole judicial establishment in the country, including subordinate courts.
 Subordinate courts are created by some relevant statutes. All their powers, functions and jurisdictions are well determined by the respective statutes. The major bulk of the cases, both civil and criminal, are tried and heard in such courts and tribunals. Such courts and tribunals spread all over the country at district levels.
 Article 94, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 Writ Petition is a request made to government or any other authority like court to pass a written order on the subject matter. Generally in the democrative set up, one may request to review something in the interest of public at a large and such a request is known as writ petition
 The Apex court stands for Bangladesh Supreme court
 20 (2000) BLD (AD) 104. 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.
 Judicial Service Commission is responsible for appointment of judges, magistrates and judicial staff.
 An Act to consolidate and amend the law relating to the Criminal Procedure. (available online: http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=75)
 The caretaker government is a form of government system in which the country is ruled by a selected government for an interim period during transition from one government to another, after the completion tenure of the former. As the outgoing government hands over their power, the caretaker government comes into place. The main objective of the caretaker government is to create an environment in which an election can be held in a free and fair manner without any political influence of the outgoing government.
 The Chief Adviser of the Caretaker Government of Bangladesh takes over as the Head of Government for 90 days during transition between one elected governments to another. The Caretaker Government that is mandated only to hold the Parliamentary Elections in Bangladesh. The Chief Adviser and is selected by the President, and the Chief Adviser selects the other advisers.
 Part VI – The Judiciary, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution”, Part I – The Republic, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part1.htm)
 “Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law”, Part III – Fundamental Rights, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part3.htm)
 “Judicial officers to be independent in the exercise of their functions”, Chapter II – Subordinate Courts, Part VI – The Judiciary, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions, Chapter I – The Supreme Court, Part VI – The Judiciary, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 “The State shall ensure the separation of the judiciary from the executive organs of the State. Separation of Judiciary from the executive”, Part II – Fundamental Principles of State Policy, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part2.htm)
 “The Chief Justice and other Judges shall be appointed by the President”, Part VI – The Judiciary, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 “Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf”, Chapter II – Subordinate Courts, Part VI – The Judiciary, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 “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” Chapter II – Subordinate Courts, Part VI – The Judiciary, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 The case was decided on the issue of how far the independence of judiciary is guaranteed by our Constitution and whether the provisions of the Constitution have been followed in practice. The court identified 5 five conditions of judicial independence.
 After a long exercise in 1956 the East Pakistan Assembly had passed an Act known as the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957, incorporating a complete separation of the judiciary from the Executive. (East Pakistan Act No. Xxxvi of 1957). But due to the executive disinclination and reluctance the notification required to put the law into operation was never issued (retrieved from http://www.thedailystar.net/law/2004/09/04/index.htm).
 Hamoodur Raman’s Law Reforms Commission submitted a fairly comprehensive report on the delays in civil and criminal litigation. The commission recommended to the Government to create a permanent law reform body for regular and systematic reform of the legal system in the country.
 The war began on 26 March 1971 and ended with the liberation of Bangladesh on 16 December 1971. The armed struggle was the culmination of a series of events, situations and issues contributing to the progressively deteriorating relations between East and West Pakistan. The questions of land reforms, state language, inter-wing economic and administrative disparities, provincial autonomy, the defense of East Pakistan and many other consequential questions had been straining the relations between the two wings of Pakistan ever since independence of the country from Britain in 1947.
 The Constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Major changes were brought into the constitution by this amendment. The presidential form of government was introduced in place of the parliamentary system; a one-party system in place of a multi-party system was introduced; the powers of the parliament were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. This Act (i) amended articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the constitution; (ii) substituted Articles 44, 70, 102, 115 and 124 of the constitution; (iii) amended part III of the constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions relating to the office of the president and its incumbent; (vii) inserted a new part, ie part VIA in the constitution and (viii) inserted articles 73A and 116A in the constitution. (available online: http://www.banglapedia.org/httpdocs/HT/C_0336.HTM)
 Article 95 & 115, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 Article 116, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 The Second Proclamation (Fifteenth Amendment) Order 1978 The Second Proclamation Order 1978, which was the proclamation order No. 4 of 1978, was issued on 18 December 1978. Its main features were (a) substitution of Article 58 of the Constitution, (b) amendment of Articles 65, 66, 73A, 80, 92, 116, 142, 145, 147 and 152 of the Constitution, and (c) amendment of the Third Schedule and Fourth Schedule (GOB, 18 December 1978) (available online: http://www.bpedia.org/P_0342.php)
 Eighth Amendment Act This Amendment Act was passed on 7 June 1988. It amended Articles 2, 3, 5, 30 and 100 of the constitution. This Amendment Act (i) declared islam as the state religion; (ii) decentralised the judiciary by setting up six permanent benches of the High Court Division outside Dhaka; (iii) amended the word ‘Bengali’ into ‘Bangla’ and ‘Dacca’ into ‘Dhaka’ in Article 5 of the constitution; (iv) amended Article 30 of the constitution by prohibiting acceptance of any title, honours, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the president. It may be noted here that the Supreme Court subsequently declared the amendment of Article 100 unconstitutional since it had altered the basic structure of the constitution.
 Article 100, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 This Amendment Act, known as the most important landmark in the history of constitutional development in Bangladesh, was passed on 6 August 1991. It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142. Through this amendment the parliamentary form of government was re-introduced in Bangladesh; the president became the constitutional head of the state; the prime minister became the executive head; the cabinet headed by the prime minister became responsible to the Jatiya Sangsad; the post of the vice-president was abolished; the president was required to be elected by the members of the Jatiya Sangsad. Moreover, through Article 59 of the constitution this act ensured the participation of the people’s representatives in local government bodies, thus stabilising the base of democracy in the country. (available online: http://www.banglapedia.org/httpdocs/HT/C_0336.HTM)
 Article 109, Constitution (available online: http://www.parliament.gov.bd/Constitution_English/part6.htm)
 The court delivered a historic judgment directing the Government to implement 12 directive points on 7th May 1997 ( reported in 18 BLD 558) which includes formation of separate Judicial Service Commission (JSC), separate Judicial Service Pay Commission, amendment of the criminal procedure and the new rules for the selection and discipline of members of the Judiciary.
 Law Commission an independent body set up by an Act of the Parliament to keep the laws of Bangladesh under review and recommend reforms when needed. It is not a branch of the government for acting as legal adviser or as a drafting cell. One basic function of the commission is to conduct this research and consultation, and make proposals for updating, improving and simplifying the laws.
 An Executive Magistrate is an officer of the Executive branch (as opposed to the Judicial branch) who is invested with specific powers.
 Free from any pressure from any organs like executive.
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