Independence of judiciary means a fair and neutral judicial system which can afford to take its decision without any interference of executive or legislative organ of the state. Independence of judiciary truly means that judges are in a position to render justice in accordance with there own oath of office and only in accordance with there own sense of justice without submitting any kind of pressure or influence be it from the executive or legislative or from parties themselves or from the superiors or colleges. one of the three organs of the state is judiciary. The judiciary of a country comprises all courts and tribunals which interpret law settle legal dispute, enforce legal rights of citizens and impose penalty of the offenders. Thus in a democratic state, the power rests on three separate organs, namely the executive, the legislature and the judiciary. Though there is no specific vesting of judicial power, it is vested in the judiciary. A social structure remains coherent and cohesive with the aid of a sound judicial system. Judiciary redresses the grievances of the people and resolves disputes. Separation of judiciary universally ensures the independence of judiciary and safeguards the rights of the people. Therefore, it is impossible to ensure rule law, fundamental human rights of freedom, without previously independent courts and tribunals to resolve disputes independently. So the complete independence of judiciary is the first major steps in the process of its developments. In Bangladesh the Judicial norms and practice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary.
Our long cherished ‘separation of judiciary’ is a thing of reality at last on November 1, 2007 after 36 years of independence. Which has been ignored by political and military government over the last 36 years? This historic evolution would usher (to show someone where they should go) in a new era of greater judicial independence & this greater independence would enable the lower judiciary to satisfy the justice-seekers. The people hail & will hail the persons whose contributions culminated in this separation of judiciary from executive and at the same time we have to think about the possible implications that may follow this separation. Independence is only meaningful if it serves the cause of justice for all. Separation of judiciary is a constitutional mandate and a demand of the people for the welfare of the people & judicial magistrates will able to carry out duties independently once the separation is implemented. This is undoubtedly a milestone that has been achieved to advance and ensure greater judicial independence and thereby establish rule of law in the country. By all means, this is a historic beginning of an arduous task and it has to be further accomplished to perfection by the future governments. The provision for the separation of the judiciary from the executive was introduced in the constitution after the country’s independence in 1971. The demand also existed in the then East Pakistan as the 1949 draft constitution of the Awami League had pledged to separate the judiciary form the executive. The Jukta Front also demanded the judiciary from the executive. The Jukta Front also demanded the separation of the judiciary in the 15th point of its 21-point demand announced on November 4, 1953. The then provincial legislative passed the law for separating the judiciary in 1957, but no gazette notification was issued to enact the law. In 1958, the law Commission recommend following the law. In 1958, the Law Commission recommended following the law and bringing judicial magistrates under the direct-control of the High Court. In identified coexistence of the judiciary and the executive as the main reason behind delayed disposal of cases. Article 22 of the constitution of in depended Bangladesh says, “The state shall ensure the separation of the judiciary from the executive organs of the state”. But the provision has remained neglected since formulation or the constitution in 1972. However, the non-party caretaker government started initiatives separating the judiciary in January 2007 after assuming power & it was successful on November 1, 2007.
2.1 Philosophy behind the Formation of Judiciary
One of the basic objects for which a state was established in the society was the creation and protection of individual’s rights. But an independent organ as the means through which this object might be accomplished has been recognized and existed from early times. This independent organ is judiciary. An investigating look from broader point of view will reveal the idea that the existence of judiciary does not depend on the existence of the legislature.
2.2 Definition of Independence of Judiciary
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 colleges. The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence:
2.2.1 Substantive Independence of the Judges
Substantive Independence, which is also described as functional or decisional independence means, the independence of judges to arrive at their decisions in accordance with their oath of office without submitting to any kind of inside or outside pressure (from government and other centers of power, public and private; and on the other hand, the inside pressures from parties themselves) but only to their own sense of justice. In determining the minimum standers of judicial independence the international Bar Association suggests in 1982 that in discharge of his judicial function of a judge is subject to nothing but the law and the commands of his conscience.
2.2.2 Personal Independence
Personal independence means that judges are in no way under any interference of the executive or legislative in discharging their judicial functions. In respect of personal independence of the judges the international Bar Association says that it means that the terms and conditions of judiciary service are adequately secured so as to ensure that individual judges are not subject to executive control.
2.2.3 Collective Independenc
Collective independence means the institutional administrative and financial independence of the judiciary as a whole vis-a-vis other branches of the government namely the executive and the legislative.
2.2.4 Internal Independence of the Judges
Internal independence of the judiciary means independence of judges from their
judicial superiors and colleagues. 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 disputes. Among these four types of independence of judges the substantive independence is most important. Because it is the inner- strength of the judges which provides the steering- force for them to maintain their impartiality in discharging judicial functions. When a judge administers justice, it is presumed and expected that he will administer justice impartially.
2.3 Conditions of Independence of Judiciary
Independence of judiciary dependence on some conditions which are as under:
- Mode of appointment;
- Security of tenure; and
- Adequate remuneration and privileges.
Mode of appointment
As mention earlier the conditions for appointment of judges should be a healthy one so that men of keen intellect, high legal acumen, integrity and independence of judgment from among the lawyers get opportunity to be judges. If there is any scope of personal favoritism and political bias in appointments, men of integrity and sense of justice will not be appointed as judges and when the judges lake these qualities, they will administer justice in a partial way resulting in low quality if judgment and such a situation will compel the people to withdrew their confidence from the judiciary. So the substantive independence which is the vital element of judicial impartiality depends on the mode of appointment. As professor Garner says “If the judges lack wisdom, probity and freedom of decision, the high purpose for which the judiciary is established cannot be realized. The existence of these necessary qualities depends in large measure upon the method by which the judges are selected.” The existing methods by which judges are chosen in different countries of the world are given below:
- Election by the people;
- Election by the legislature; and
- Appointment by the executive.
Election by the people
This system of popular election of judges was first introduced in France in 1970. But this system was not a successful, for the masses of voters do not always possess the understanding necessary to appreciate the soundness of judicial opinion. It was the result of the elections which took place in 1973 that most of those who were elected were engravers, stone-cutters, clerks, gardeners and common laborers who had no quality to administer justice. This is why with the advent of Napoleon the system of popular election was abolished. This method, of course, is now in vogue in some of the States of the American Federal Union. The chief disadvantage if this method is that different political parties nominate their candidates and people being influenced by the parties elect a candidate though that particular candidate has no quality to administer impartial justice. Judges, therefore, elected by this method become subject to popular passion and prejudice. It tends to lower the character of judiciary. Again, it is impossible for a judge to put for the electorate either a programmed or a personal success concerning has judicial conduct. This is why Laski says that “of all the methods of appointment that of election by the person at large is without exception the worst.”
Election by the legislature
This method exists in Switzerland and in two States of American Federal Union. This system is not consider good because in this system judges are nominated by political parties in the parliament and the majority is sure to get his candidate elected whatever be his quality to administer justice. It is contended that when a judge is elected with the support of the majority party, he will have to appease that party and it will be quite impossible for him to deliver neutral justice.
Appointment by the executive
The appointment of judges by the executive is the most common and available method of choice and this system in vague almost all countries. This may be of two types:
- By the executive independently; or
- By the executive after consultation with the court or from a list of nominees presented by the court or with the consent of the legislature.
The first method is sometimes contended to be objectionable in the sense that personal favoritism or political consideration may determine the appointments and instances are cited from Britain, France, and USA and largely from third world countries. Mr. Briand, when was the Minister of justice of France in 1912 himself declared that the judges had become the pay of politicians? The second method is most democratic and objective. Because when the court prepares a list or the Chief Justice consults he, who is closely associated with the performance of Bar, will select the name of those lawyers who are men of high legal acumen, integrity, independence of justice etc. Such a method of appointing judges is conducive to the development of the standard of judicial decisions on the one hand and on the other hand, it is therefore, perfect to ensure impartial justice in the country.
Security of tenure
Security of tenure for the judges is most important in securing their independence and impartiality. Security of tenure means that:
- Either judge is to be appointed for the whole life i.e. 65 or 75 years.
- During this tenure the conditions of service must be such that they can fearlessly administer justice.
In other words, the power of transfer or removal of a judge must be a strict and difficult one. If the transfer or removal of a judge is to depend upon the pleasure of particular person or the executive, neither independence nor impartiality can be ensured. Because in such a situation judges will be under a constant fear of being removed or transferred from office, if they give decisions against the executive. In UK judges are guaranteed their security of tenure; they can be removed by the King only when both the Houses pass a resolution presumed him for corruption or moral turpitude. In the USA judges of the Supreme Court can be removed by impeachment. The process of impeachment is difficult in that the House of Representatives prefers the charges and the trial in held by the Senate.
Adequate Remuneration and Privileges
In order to ensure the independence of judiciary it is essential, next to the permanency of office, to provide judges with adequate remuneration and privileges. Adequate remuneration and privileges includes include the following three things:
Firstly, the salaries, housing facilities, allowances and other privileges are to be such that they can easily maintain a standard life and they do not have to think of corruption or bribery. Again, if judges are ill-paid able persons may not be attracted to this profession.
Secondly, the conditions of salaries and other privileges must be such that they cannot be varied to there disadvantages during the tenure of there office. This is why in democratic countries judges are paid there salaries and allowances from the consolidated fund and there is no need for the approval of the parliament for this payments every year.
Thirdly, after retirement a judge should receive pension person so that during his tenure he need not indulge in corrupt practices and he can lead a peaceful retired life.
3.1 Structure of Judiciary in Bangladesh
Bangladesh’s Constitution came into force on December, 16; 1972. It contains fairly stringent safeguards for the independence of the judiciary in Article 95 (Appointment of judges), Article 96 (Removal of judges) and Article 99 (prohibition of further Employment if judges), although the formal separation of power is not emphatically articulated7. Over the years, its safeguards of judicial independence, rather that being strengthened and consolidated, have been diluted through a number of constitutional amendments. According to Article 94 of the constitution of Bangladesh there shall be a supreme court in Bangladesh which composed of two divisions, High Court and Appellate Division. The supreme court shall consists of 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. It is also stated in this section that the judges shall be independent in the exercise of there judicial function. Magistrates are controlled not by the judicial branch, but by the Ministry of Establishment and by the government. Magistrate judges are typically transferred to their magisterial posts for 3-10 years during the course of their employment with the government, thereafter are reverted back to their old administrative positions (ADB, 20030. There are four different types of magistrates: magistrate of the first class, Second class, third class and honorary magistrates (Hoque, 2003). Responsible for 80 percent of criminal cases, it is the magistrates who usually decide if the accused is to be granted bail or prosecuted and typically has the power jail and imprisonment for up to seven years.The most notable executive interference in lower judiciary crime through the appointment of judges and more importantly executive control over the Magistrate, this bond between the executive and the judiciary are an important constitutional discrepancy that results in the deterioration of the concept of judicial independence and rule of law.
3.2 Constitutional basis of Independence of Judiciary
Part VI of our constitution deals with the judiciary. According to Article 7 “all powers of the Republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority, of this constitution. The responsibility of seeing that no functionary of the state oversteps the limit of his power is a necessary, on the judiciary. According to article 35(3) of the constitution provides “every person accused of criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by law. Article 116A provides for independence of subordinate judiciary while Article 94(4) prescribed independence of Supreme Court judges. Again Article 116A provides that all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.
4.1 Independence of Judiciary in the light of Masder Hossain Case
In 1972 after independence of Bangladesh the Constitution of the Peoples’ Republic of Bangladesh was adopted. Provision was made in Article 22 in the Fundamental Principles of State Policy that the state shall ensure the separation of the judiciary from the executive organs of the state. In 1976 a Law Committee headed by Justice Kamal uddin reported to implement separation of lower judiciary in three stages which are as follows:
First Stage: The government may by notification, appoint some particular Magistrates at each station exclusively for judicial work. This can be given effect forthwith without any additional expenses or administrative difficulties.
Final Stage: The final stage would be not only complete separation of judicial functions from 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 level of the district and Session Judge. The Committee also recommended that for creation of an integrated judicial service, it would be necessary to enact new legislation. In 1987 by an amendment to the Criminal Procedure Code 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 in India in 1974 by an amendment to the Criminal Procedure Code. 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 from the executive. In 1991 a private member’s Bill by Mr. Salauddin Yusuf namely the Constitution (l4tI Amendment) Bill 1991 was introduced for further amendment of Articles 95, 98, 115 and 116 of the Constitution. The Bill was sent to a select committee which had about 13 meetings to consider it. The Bill tried to reinstate the provisions 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 4 Amendment of the Constitution though it is the BNP which never misses any opportunity to condemn AL for the 4 Amendment of the Constitution.9 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 Article 115 and 116 of the Constitution. ‘By not the executive Sheikh 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. Abdul Motin Khasru, the Law Minster stated that a bill for separation of judiciary from the executive was under way but nothing more was done.
Finally, the last Caretaker Government on 1st November, 2007 implements some direction of Masder Hossain Case of the Supreme Court regarding the separation of the judiciary and brought some change in code of criminal procedure. That was the bright day of separation of judiciary in the history of Bangladesh.
How far the constitution of Bangladesh have actually secured the separation of the judiciary from the executive organs of the state and whether the parliament and the executive have followed the constitutional path are the crux issues that fall to be determined in this appeal by leave by the Government appellant from the judgment and the order dated 7.5.1997 passed by a division Bench of the High Court Division in Writ Petition no.2424 of 1995. Writ Petitioner-respondents who are District Judges, Additional District judges or subordinate judges filed the said Writ petition impeding the appellant. Secretary, Ministry of Finance, Government of Bangladesh as Respondent No.3 and other Ministers and functionaries of the Government as respondent No. 1-2 and 4-6 in which a Rule Nisi was issued at the first instance to show cause as to why the Bangladesh Civil Service (Re-organization) order, 1980, purporting to incorporate “judicial Service” within the Bangladesh Civil Services as one of the cadre Services should not be declared as ultra vires the constitution and unconstitutional, in particular violate of Article 27 and 29 of constitution and why the impugned orders passed by the appellant dated 28.02.1994 and 02.11.1995 suspending and then canceling respectively an earlier order of the appellant dated 8.01.1994 regarding the pay and allowances of the respondents should not be declared ultra vires, malafide, discriminatory and violates of fundamental rights as guaranteed by the constitution and to show cause as to why the attempt to treat the judges of the subordinate courts as part of the Civil Services Cadre meant for the executive branch of the Government and to subject them to ant laws meant for the employees of the executive Government should not be declared illegal and ultra vires of the constitution and why a separate rules for the judges of the subordinate courts should not be framed as contemplated under Article 115 of the constitution. Six broad points was urged by the writ petitioner and accepted by the High Court Division. These are as follow:
i. The term Judicial is a fundamental misconception as judicial service is recognized and treated separately in Article 115, 116 and 116A of the constitution and define separately in Article 152(1) of the constitution. The subordinate courts are part and parcel of the constitution as a separate and independent entry and can not be a part of the civil, administrative or executive service of the country. The definition of service of the Republic in Article 152(1) of the constitution is broad and includes defense and judicial services, but that does not mean that judicial service and defense service are part of the civil or administrative service. The definition clause cannot bring judicial service within the ambit of executive or administrative service which is called Bangladesh Civil Service. Article 133 cannot be invoked for the judicial officers as there are separate provisions for them in Article 115 and 116 of the constitution of Bangladesh Judicial officers are not persons of the Service of the Republic for the purpose of Article 133 and hence the Rules regarding their appointment and conditions of service cannot be framed under Article 133. It will be totally unconstitutional if the subordinate courts are tagged with or brought under the control of the executive under part ix or any other part of the constitution excepting part VI.The judicial service cannot be legally brought within the ambit of Act No32 1975 because if it is so done it will alter the very fundamental and basic structure of the constitution relating to separate and independent judicial service as contain in part vi of constitution. The inclusion of judicial service under Bangladesh Civil Service (Re-organization) order, 1980 dated 1.09.1980 as Bangladesh Civil Service (Judicial) is ultra vires of the constitutions. As the defense service is under part vi, so is judicial service is under part vi. In such a situation, the defense service has been correctly organized by separate Acts and Rules and in a similar way the judicial service shall have to be organized in accordance with the provision of part vi and the enactments and rules made there under.
ii. The Writ petitioners have come up for a declaration that the judiciary has already been separated under part vi of the constitution and that the respondents should be directed to implement and carry out the mandate of the constitution in pursuance of Articles 109, 115, 116 and 116A.In the instant case the High Court Division can direct the legislature and the executive to perform their functions which they are required to do under the constitution. The state should provide immediately for bringing judicial service under the direct control of High Court Division functionally and structurally and this direction was given by the High Court Division in exercise of power under Article 102(2)(a)(l) of the constitution. The High Court Division, in its opinion, is competent to direct the respondents to make necessary Rules in order to enable the subordinate judiciary to functions as an independent institution. Rules made under Article 115 may provide for independent service commission as well as independent pay commission for the purpose of appointment of judicial officers and magistrate performing judicial functions and for the purpose pf fixing their scales and grades of pay commensurate with there recognized status in the constitution.
iii. For the effective implementations of the provisions of Article 115 and 116 necessary Rules are to be framed by the President. Although Articles 115 speaks of appointment, it also means terms and conditions of service. Article 115 and 116 require that not only recruitment Rules but also Rules governing conditions of service of the judicial officers and magistrate performing judicial functions are to be made by the President. Since the rule making power of the President is wide, unlimited and absolute, the President can make any provisions under these Rules that are necessary for carrying out the purposes of separation of judiciary from the executive.
iv. For separation of the subordinate judiciary from the executive no further constitutional amendment is necessary. Article 109 of the constitution brings subordinate courts and tribunals under the control and superintendence of the High Court Division. Necessary rule making power has been given making the Supreme Court as the real wider of authority in framing rules under Article 115 of the constitution. Read with Article 116 and 116A of the constitution the subordinate judiciary has already been separated from the executive in the constitutional scheme. In the Fundamental Principle of State Policy Article 22 of the constitution provides that the State shall ensure the separation of judiciary from the executive. This principle shall be applied by the State in making of laws and Article 22 was not meant for beautifying the constitutions an ornament. The will of the people was entitled to be implemented within a reasonable tine and a period of 25 years from independence definitely a reasonable period to implement the desires of the people. The Supreme Court alone shall have overall control, supervision and management over them in any manner whatsoever.
v. Judicial officers do not come within the jurisdiction of Administrative Tribunals their (service conditions are governed and determined by under chapter ii of part VI of the constitution .Courts and judges are not subordinate to the said tribunal, and hence judges and the courts are not to seek relief from the Administrative Tribunal.
vi. Some unreasonable conditions were attached with the pay scales of the Subordinate judges, Additional District and session judges and District and session Judges who were not attached in respect of pay scales and allowances of other Bangladesh Civil Service Cadre holders. The impugned orders Annexure F&F (1) so far as the same relate to the writ petitioners and other judicial officers, are ultra vires, the constitution begins violated of articles 22 and 29 of the constitution.
Judgment of the case
Reading Article 115 as we have done, we find no constitutional basis of the exercise of Government power in creating BCS (judicial) Service Cadre under the SRO dated 1 Sept. 19SOand 31 August. 1986. The learned Attorney General has conceded that the general provisions of the constitution will prevail subject to special condition. This is a golden rule of the constitution not only the statute but also of a constitution. Article 133 and Article 136 of the constitution are the general provision s but Article 115 is special condition. This power of the President can not be obliterated when the parliament makes or exhausts its exercises under Article 136. The President is not empowered to act under the proviso of Article 133 what he has required to do under Article 115. These are distinct and separate powers. The parliament in exercise of its power under Article 136 cannot usurp the primary rule -making power of the president under Article 115.Article 136 will always have to be read keeping in view the fact that the reorganization of the services of the Republic can not be allowed by amalgamating or unifying the judicial service with any other civil administrative executive services of the Republic, or by-placing the judicial service on a par with the civil administrative executive services on making it one of then many cadre services of the Bangladesh Civil Service. The judicial Service has a permanent entity as a separate service altogether and it must always remain so in order that Chapter 11 of Part 6 is not rendered nugatory. While making the Bangladesh Civil Service (Re- organization) order, 1980 the Government had forgotten that the presiding officers of subordinate courts have been placed in a service the nomenclature of which has been designated in the constitution which calls it a (judicial service). It should be so known formally in accordance with the constitutional nomenclature. If the constitution provides that the Supreme Court ill be known as the supreme court of Bangladesh (Article 94) then the Supreme Court cannot be designated in any other language. It will have to be known that the Supreme Court of Bangladesh Similarly, when the constitution provides that there will be a judicial service then that service cannot be designated as(BCS) judicial. That it has been done to distinguish it from military service is not only an inappropriate explanation but also a convenient way to perpetuate the equalization of judicial service of civil administrative executive services. The judicial service cannot be a branch of the civil services. The connotation of the two services is fundamentally opposed to each other. It will be known either as the judicial service of Bangladesh or as Bangladesh judicial service. A subordinate legislation cannot delegate to a specified authority the power to change the identity, status and nomenclature of a constitutionally designated service. The above are the observations, guidelines, elaborations and acceptance or rejection of some parts of the impugned judgment. Finally, the operative part of the judgment is as follows: The Supreme Court gave 12 –point directions to the Government to ensure the independence or separation of judiciary. The operative part of the judgment came to be known as 12-point directions which are as follows:
i. Judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is functionally and structurally distinct and separate service Republic.
ii. The word ‘appointment’ in Article 15 mean that it is the President who under Article 115 can create and establish a judicial service and a magistracy exercising judicial functions make rules etc; Article 115 does not contain any rule-making authority with regard to other terms and conditions of service; Article 133, 136 of the Constitution and Services (Reorganization and Conditions) Act 1975 have no app1icu1iomi in respect of the judicial functions.
iii. Creation of BCS (Judicial) cadre along with other BCS executive and administrative cadres by Bangladesh Civil Service (Reorganization) Order, 198O amendment of 1986 is ultra virus the Constitution, Ban Civil Service Recruitment Rules 1981 arc inapplicable judicial service.
iv. Government is directed to take necessary forthwith for the President to make Rules under I to implement its provisions. (b.) Nomenclature/of the judicial service shall designed as the Judicial Service of Bangladesh (c.) either by legislation or rules or order a judicial Service. Commission is to be established forthwith with the majority or members for the Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service.
v. Under Article 133 law or rules relating to posting, promotion. Grant of leave, discipline, pay, allowance and other -terms and conditions of service consistent with Article 116 and 116k, shall be enacted separately for the judicial service.
vi. Government is directed to establish a separate Judicial Pay’ Commission forthwith as part of the Rules to be framed, under Article 115.
vii. In increasing control and disciplines 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.
viii. The conditions of judicial independence in 116A namely,
(i) Security of tenure (ii) security- of salary and- other benefits and pension and (iii) Constitutional independence from the parliament and the executive shall be secured in the law or Rules made under Article 113 or in the executive orders having the force of Rules.
ix. The executive government shal1 not require the Supreme Court of Bangladesh to seek their approval to incur any expenditure on any items from the fund, allocated to the Supreme Court. The members of the judicial service arc within the jurisdiction of the administrative tribunal.
x. The members of the judicial service are within the jurisdiction of the administrative tribunal.
xi. Amendment of the Constitutional for separation of judiciary form the executive may be made by the Parliament.
xii. Until the Judicial Pay Commission gives its first recommendation the salary of judges in the judicial service wi1l continues to be governed by status quo ante.
However, directive pints points of the operative part require the government to frame Rules that are to deal’ with establishment of a judicial service of Bangladesh; to enact law regarding posting, promotion, grant of leave, discipline, pay, allowances, pension and other terms and conditions of service; to establish a separate judicial Pay commission by Rules; to make law ensuring security of tenure of judges, security of their salary and other benefits and pension and institutional independence from the Parliament.
4.2 Implementation of the Judgment of Masder Hossain Case
More than five years have passed since the judgment was pronounced by the Appellate Division in 1999. Up to February 2006 the successive governments took 23 adjournments to implement the judgment on this or that plea. During these 5 year time the government implemented none of the directives given in the judgment though some drafts of Rules have been made. During the last Caretaker Government in 2001 4 drafts were prepared: (l) The Code of Criminal Procedure 1898 (Amendment) Ordinance 2001; (2) Judicial Service Commission Rules, 200; and (3) two rules on Judicial Service. The Caretaker Government did not implement any of those drafts and the responsibility came to be for the subsequent BNP Government to implement the judgment. The incumbent upon the BNP Government to implement came to be based on three-sided pledge: first, it was BNP’s avowed manifesto in the 8 Parliament election to implement separation of judiciary; second, after wining the election the BNP promised the Caretaker Government that after formation of the newly elected government, it would implement the judgment of the Masder Hossain case without any delay and relying on that pledge the Caretaker Government did not implement the judgment in their last cabinet meeting; third, it is mandatory for the government to implement the judgment of Masder Hossain case as an order of the Highest Court of the land. However, the BNP Government which has already passed its most of the time in power have not done anything substantive to implement their pledge. Barrister Moudud Ahmed who is the Minister of Law and Parliamentary Affairs told the dailies that it would take another 6-7 years to implement the separation of judiciary. Lastly on 1st February, 2006 the Appellate Division rejected time prayer by the Government for third time and fixed February 22 as the date of the contempt petition against the Government for not separating judiciary from the executive as per Supreme Court’s direction. Earlier the court twice rejected similar government pleas- on August 7, 2004 and again on October 20, 2004. Though there are points both for and against the judgment in Masder Hossain case it has been an outcry for long to see the judiciary separate from the clutches of the executive.
4.3 Reason for Delaying in the Implement of the Judgment
The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. There have some common problems regarding the separation of judiciary, which is given below:
4.3.1 Lack of Consciousness
Of the total people constituting the electorate of our country, I am sure more than 10% voters do not know what actually is mean by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions we should have at least an average knowledge of our present judicial system. Lack of consciousness people’s have no strong movement for this reasonable and demand full wants.
4.3.2 Lack of Political Will
Any kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. And Government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate the judiciary from the executive it would be impossible. Though most of the political parties have commitment to separation of judiciary but after formation of government they technically avoid the matters. That’s why the process of separation of judiciary is going on endlessly.
4.3.3 Lack of Interaction with Other Courts
Lack of interaction of the judges in Bangladesh with their counterparts in other countries is a possible factor for their insular understanding of law. Of course, the courts’ scarce resources limit the opportunities for such interaction, and, the very limited judicial interaction with foreign courts, when it does occur is arranged in hierarchical order. This means that older judges, who are usually less amenable to fresh ideas and have less time left on the bench, undertake such interactions most often, receiving the most limited results possible (ADB, 2003).
4.3.4. Lack of Strong Civil Society
Civil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.
4.3.5. Lack of Democratic Culture
We have reached upon 36th years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have set up a democratic government. But we have so far made little progress in practicing parliamentary culture. Our leadership instead of guiding the nation toward setting up a strong parliamentary democracy has so long been engaged in the politics of mutual hatred and vengeance. Tolerance and respect for opposition party is now foreign in our politics. Such intolerance and enmity between political parties have adversely affected the nation as a whole and virtually has divided the nation into some group antagonistic to each other. This inimical attitude of our political parties has not only polluted the politics of our nation but has created groupings among public servants in general and bureaucrats in particular. Of late the highest judiciary has reportedly been politicized.
4.3.6. Executive Dominated Judiciary
Article 115 of the constitution: Appointments of persons 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. It is noticeable in this article that the President with exercising this power is not required to consult the Chief Justice of Bangladesh. We know that the President cannot exercise his powers whatever, without the advice of the Prime Minister, accept of course his power to appoint the Prime Minister. This is how the executive organ of our state is controlling the judiciary. Their appointments, postings, transfers, promotions, punishments etc. are at the hands of the President or for that matter, the government.
4.3.7. Lack of Popular Access to Justice
Unlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh. The very wide powers of the highest court to deliver justice have been under-utilized. Less than a dozen-suomoto case during the last ten years has succeeded, perhaps reflecting judicial conservatism.
4.3.8. Overlapping Competencies
Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary. Generally ministries do not have legal officers of their own, and the public prosecution service is an adhoc arrangement. Arguably, judicial independence is compromised when a person acts as both a prosecutor and a judge. Law officers have to defend government positions while judges might rule against the government. A directive of the Masdar Hossain Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this directive has not been carried out.
4.3.9 Corrupted lawmakers
The air of separation of judiciary is entering; side by side it has also bad smell. Maximum judges and lawmakers are corrupted. The takes bribe spontaneously and make the case diverted. It is a very common phenomenon in our country. So if the independent judiciary is vested upon the dishonest lawmakers, there must be disorders in law and order situation of Bangladesh. Recently Transparency International of Bangladesh (TIB) exposed the corruption of the lawmakers (Table-1).
Table: Corruption of Lawmakers
|Case Number||Bribe Providers||Whom was bribe given|
It is also alarming news that maximum lawmakers are concerned with any of the major parties of the country. So it is a matter of great tension whether public will get justice or not that is why, first of all politics among them must be banned. Otherwise there will be use of separation of judiciary from the executive.
4.3.10 Government Negligence
The High Court Division of the Supreme Court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But the government has so long remained headless and negligent to the High Court Division’s directives. When the government itself does not honor the highest court of the country, how can the people in general confide in the judicial system and such underhand practice? However, the government has sought, and the Appellate Division has granted, a number of extensions in time for the implementation of the Supreme Court’s directives. Finally, the last care-taker government on 1 November 2007 passed some rules which was directed by the Supreme Court and brought certain changes of Code of Criminal Procedure, 1898.
4.1 Steps taken for Independence of Judiciary in Bangladesh
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. XX11I 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 mean time, 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 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 Masdar 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 the request 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 hail’s pace. It may be noted that Pakistan and India have taken necessary steps for free the 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. Law Minister is seeking for additional six years in this regard we can fairly questions how long will it take to ensure separation of judiciary from the executive?The last caretaker government passed some rules regarding the independence of judiciary by amending section 4,6,8,9,11,12,17,17A,18,29B,29C,31,36,37,41,42,45 and some other section of Code of Criminal Procedure on November 1, 2007.Finally, the last caretaker government issue some rules and regulation in accordance with the judgment of famous Masder Hossain case.The laws which are related to separation of judiciary by the government at a glance:
(i) The Bangladesh Judicial Service (formation of the service, appointment in the service and temporary dismissal and removal) Rules, 2007.
(ii) The Bangladesh judicial service (ascertainment of field of service, giving promotion, system of control and discipline including grant of vacation and other condition of service) Rules, 2007.
(iii) The Bangladesh Judicial Service Commission Rules, 2007.
1. Justice Johir uddin Ahmed
Bangladesh Supreme Court (High Court Division)
On 27th May I visited court and meet with him and want to know about the separation of judiciary. He said that the High Court Division of Supreme court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back, but the government has so long remained headless and negligent to the high court Division directives. When the movement itself does not honor the highest court of the country, how can the people in general confide in the judicial system.
2. Justice Gazi Saidur Rahman
Bangladesh Supreme Court (High Court Division)
In the time of Interview he shared with me that in magistrate court depends not on law but on the amount of bribe. Any kind of meaningful changed, political will is mandatory because our democratic policy deals by various political parties. And government formed by citizens mandate with their representatives. So, if the political parties have no interest to separate the judiciary from the executive it would be impossible. Though most of the political parties have committed to separation of judiciary but alter formation of government they technically avoid the matters. That’s why the process of separation of judiciary is going on endlessly.
3. Justice Faruk Ahmed
Bangladesh Supreme Court (High Court Division)
He told me Inherent lack of administrative cheek and balance in magistracy. Unlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh. The very wide power of the highest court to deliver justice have been under-utilized. Less than a dozen-sou moto ease during the last ten years has succeeded, perhaps reflecting judicial conservatism.
4. Kamruzzaman Bablu,
Dhaka Judges Court
I visited judge court on 25th May and meet with him. He told me that they cannot take an independent view of the case before him if he knows that his posting promotion and prospects generally depend on the executive hand. We have reached on years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to set up a democratic government but we have so far made little progress I practicing parliamentary democracy has so long been engaged in the politics of mutual hatred and vengeance. Tolerance and respect for opposition party is now foreign our politics. Such intolerance enmity between political parties have adversely affected the nation as a whole and virtually has divided the nation into some antagonistic to each other. This inimical attitude of our political parties has not only populated the politics of our nation but has created groupings among public servants in general and bureaucrats in particular.
5. Advocate Gazi Shah Alam
Former Secretary, Dhaka Bar Association
Adequate remuneration and privilege. Some of them want the interference of home ministry and little bit satisfy with the present from of separation. The air of separation of judiciary is entering side by side it has also bad smell. Maximum judges and lawmakers are corrupted. They take bribe spontaneously and make the case diverted . It is a very common phenomenon in our country. So if the independent judiciary is vested upon the dishonest lawmakers, there must be disorder in low and order situation of Bangladesh. It is alarming news that maximum lawmakers and concerned with any of the major parties of the country. So it a matter of great tension whether public will get justice or not that is why, first of all politics among them must be banned. Otherwise there will be use of separation of judiciary from the executive.
6. MD. NAJIBULLAH HIRU
Ex-General Secretary (Dhaka Bar Association)
End of normal file star trial, Magistrate gives bail de changes this. They are impliedly bias political party. Often, executive branch ministers to work as there legal offices recruit judges from the subordinate judiciary. Generally ministers do not have a legal officers of their own, and the public prosecution service is an adhoc arrangement. Arguably, judicial independence is comprised when a person acts ‘as both a prosecutor and a judge’. Low officers have to depend government. A directive of the Masder Hossain judgment calls of the roles of the judges and prosecutor to be supersets. Unfortunately, so far this directive is not completely carried out.
From the above discussion I have some recommendations for removing the judicial problems and separating the judiciary from the executive and ensure the judicial independence in Bangladesh.
i. Political interference is a major impediment to the proper justice. If the judiciary is separated, cases can be dealt without political interference. We cannot expect proper justice if judiciary does not work independently. There is hardly a little chance for case to be biased in case of independent judiciary. So from this point of view separation of judiciary is necessary.
ii. The citizenry and government must have more respect for judicial decisions. This would go a long way in centralizing the notions of the rule of law, defining the limits of government, creating parameters of accountability, and ensuring other necessary pre-conditions for an ordered and predictable society (ADB, 2003).
iii. In Bangladesh with immediate technical assistance for carrying out the directives of the Masdar Hossain judgment, particular knowledge of how the functional separation of powers is initiated and implemented in other countries should be seriously considered. The creation of judicial service commission (JSC) implies a drastic expansion of administrative responsibilities for the Supreme Court, a burden that it is currently ill suited and to shoulder.The rudimentary technical competence of the administration of the Supreme Court is an area of concern, and courts in general are in need of more technical assistance.
iv. The appointment of Judges of the Supreme Court, currently done by the President, is susceptible to external influences in a selection process that is nontransparent. A change in the system of selecting and appointing judges of High Court Division is another aspect requiring attention. The courts themselves must encourage ordinary citizens to seek justice through their chambers. At present, lower courts are mistrusted and the judiciary in general, if it is to be effective, must encourage and support citizens’ access to justice.
v. Improvements in court administration must be made at both the national and the District levels. Administrative reorganization is vital at this time in order to put in place the structures and processes necessary to administer an independent judiciary. At sometime in the future the judiciary may be expected to perform all of those necessary functions, which are now being performed by the Executive. At the national level, the Registrar’s Office in the Supreme Court will be studied and reorganized along functional lines, i.e. case management, planning budgeting and financial management, general administration, human resources, and research. Institutions such as the existing Judicial Council will be studied and other administrative reorganizations may be recommended and implemented.
At the district level, to reduce the administrative workload of the District Judges, the administrative officer and other staff, on whom the judge relics in administrative matters would be upgraded, in part by developing career path for them. The District Court’s administrative office would be modernized and would have appropriate and trained staff, e.g., a planning and budgeting officer, a purchasing and accounting officer, and other customary staff, e.g., a court order clerk, a process/decree officer, and process servers.
Office manuals would be developed documenting the new procedures and standard forms; office space would be created adequate for staff, records and equipment, and technology, including computers and suitable software, with linkage to the Court Management Information System (CMS), would be supplied by the government. Yet these I have some other specific recommendations:
The establishment and enforcement of a procedural calendar for the life of a case;
The enforcement of time limits for processing cases, backed by a regime of costs and/or other sanctions to discourage non-compliance:
i) The elimination of unnecessary procedural steps for, and other hurdles to, the enforcement of judgments;
ii) Improved courtroom facilities, as well as technology support, with automated case tracking systems, as part of the CMIS to be installed in the Supreme Court and the District Courts.
iii) Separate secretariat should be established to ensure the independence of judiciary.
The broader theory of ‘separation of powers’, from which the concept of ‘separation of judiciary’ emerged, the powers of a given state to be allocated among three separate organs i.e. executive, legislature judiciary, so that neither of them gets arbitrary and a check ca imposed upon one organ if it tends to become autocratic. However, we keep theories aside for a while and rely more on our empirical observations, it would transpire that the roar of the executive so most vis-à-vis the other organs. Even in the USA, the epitome o separation of powers theory, Mr. Bush still can drag his war-dominated foreign policy on despite the fact that Democrats form the major both houses of the Parliament. This observation helps us to realize it is hard, if not impossible, for other two organs to do or to at from doing something which run counter to the will or interest c executive. This is evident in the course of implementation of Masdar Hossain case itself. Despite being ‘supposed’ representatives of p two consecutive political governments afforded to abstain executing the judgment and got away with that. Indeed, there are countries where this separation theory applies but not because of the vitality of the theory itself rather because those countries had developed national sense of respect to words their democratic institutions amounting to inviolability, breach of which is regarded and impossibility. So, it is more of political culture then of mere implementation of theory. We have come across a long way in shaping our legal and institutional structure towards ensuring justice and now we must focus on inculcating the democratic values and spirits, both in optical and legal spheres, in such a way that these may be felt integral to our national life. Mere separation was not enough to ensure justice; it has to be complemented by reforms in the police, courts and the legal profession. In this connection we would like to point out that independent judiciary has now to shoulder more responsibility than before. It will have to ensure that the process of appointment of judges has no flaws and the appointed judge’s work with greater integrity. Common people must have easy access to the legal system and get legal help timely and at minimum cost, as said by the chief justice. Judiciary is the last resort of the suffering people; therefore, it must live up to its newly acquired status. We wish the independent judiciary make its presence felt and meet the expectations of the people that are, amply reflected in the jubilant mood they have greeted the separation of judiciary.