Introduction:
Rule of law, it is also known as supremacy of law. It says that all the governmental decisions are have taken by applying known laws or principles.[1] It is a system which describes the relationship between the power of the politics and people. It is also used to define the functions of the legal system. It also says that the “rule of law” is just the opposite of “rule of man”.
This rule of law is using by the politicians, judges. They described it as an idea of an exceedingly vague.[2] In current time world is using the explanation of A.V. Dicey to explain the rule of law. According to him, rule of law mainly includes three important things and these are: (1) No one is above the law and again the authority people should not enjoy extra facilities. (2) Law is equal for everyone (3) Individual liberties.[3]
Now, this rule of law explains in different ways based on different subjects. One of the major topics of this rule of law is free judiciary. In different articles of constitution it has declared that the activities of judiciary are free from influence of legislative and executive body of the state and this is must for rule of law. This whole report will discuss about this topic. It also discuss about how this free judiciary process of rule of law is working in Bangladesh and other countries. It will also talk about some differences of this free judiciary and some historical and key points of rule of law.
History of Rule of Law:
“Rule of law” is a kind of law in focus from very old-time. Now, credit goes for A.V. Dicey[4] to create a concept based on the primordial time laws. This concept of A.V. Dicey has made based on different civilization including ancient Greece, China and many others ancient civilizations.
Now from the concept of Dicey it found that he divided the rule of law matter into three different eras. In the ancient Greek era, it was the rule that the state would be under the best form of Government and under the best person. Plato advocated that the best person is a king who would be a good philosopher and that person is above all laws.[5]
In the middle age the rule of law introduced by the Islamic Jurist based on the religious law which was more directly can be said as the Sharia law. Almost in the similar time 1215 in England a partial rule of law introduced by the king John.[6]
In 1610, in a declaration from House of common declared that law would be equal for everyone except the king and queen, and by this declaration for the first time royal people came under the law. From this step the rule of law was starting to set up among different countries and people.
Rule of Law and Judicial Independence in Different Countries:
Judicial independence is a mandatory part of rule of law and it applies almost in all countries. Here we are discussing about few countries.
Canada: In Canada the independence of the judicial has entered into the constitution under in section of 96 to 100 and it is in the constitution act, 1867. It gave different guarantees on independence in different laws (not all laws) to Canadian judiciary. In 1982 the level of independence extended as Canadian judiciary has independence to interfere criminal laws. In 1997 a great shift was found in Canadian Judicial independence issue as the supreme court of Canada has unwritten constitution rule as guarantee to independence in all level of judges which gave them independence in institutional independence and decision-making independence. By the institutional independence it has ensured that judicial branch is totally independent from the branch of executive and legislative also it gives the judicial branch of Canada to get the access in any law and act of the country without letting know anyone.
United Kingdom: In 1688 after the Stuart dynasty used his power over the parliament then the King William III made a change by giving the independence to the judicial branch.[7] In modern time independence has given to the parliament of United Kingdom to take any action and for that parliament does not have the power to comment on the activities of the court. Again, by the constitutional reform act 2005, the political interaction reduced greatly in the process of selection of judges.
United States of America: As the Article III of the US constitution it says that the judicial power will extend in all cases under the constitution. This extension is applicable in both equity and law issues of the country.[8]
India: India, it has the longest constitutional copy in the history of the world. As this country has big details about most of the aspects in its constitution so it sometimes limit the chance to take some judicial decisions, but it keeps a great opportunity to the application of judicial review. To express the level of judicial freedom journalist said, rule of judges instead of rule of law.[9]
In India the judicial branch has all types of freedom. They have the institutional independence which gives them the power to deals with the take decision about country and gives judge and appointment, payments, salaries and other important issues of judges without the influence of legislative and executive body of the country. Most importantly as the Indian rule of law Indian judiciary process is free from the presser of executive body of the state.[10]
Rule of laws in Constitution of Bangladesh and freedom of Judiciary Branch:
Rule of law, has explained over the different aspects of the human rights and explains the independence level or freedom of the people of the state. It talks about the equity and other different topics. For example in the article 19 of constitution it was state ta all the laws are always equal for everyone.[11] In article 27 it talks about the guarantees about the enforcement of equal law to everyone, in article 28 it explained that states will not discrimination in any factor to any of the citizen.[12]
Freedom of Judiciary:
The freedom of judiciary branch is must part of rule of law. It is also stated many times in the constitution of Bangladesh in different articles. In article 22 it explains that the state ensured the separate judiciary branch from the executive branch of the state.[13] From here it found that the highest book of the Bangladesh ensures an independent institution for judiciary branch to make it free from the influence of other influences.
Again, the constitution has the given the power to the high court to pass required to enforce the fundamental right. High court can use this power under the section Article 102 (1).[14] This right has ensured again in the article 44 (1). High Court has the independence to use this law if they find that any right of the citizen has been void.
Moreover, in the article 7, 26 and 102 (2) of constitution it gives a power to the Supreme Court to exercise the judicial review. By these articles of constitution, it ensures role the Supreme Court as the guardian of the country which can examine any legal action which has taken in the country. Supreme Court also can observe the different aspects of both Legislative and Executive and take any action against them if they void any rule of constitution.
Though from the upper explanation, it clears about the independence of judiciary branch. But the independence has of judiciary has declared again in the section of 4 of article 94 and in article 116 A. Article 94 (4) says, “Subject to the provisions of this Constitution the Chief Justice and the other Judges shall independent in the exercise of their judicial functions.” [15] It means that Supreme Court have to independent to exercise any functions of judicial branch. Again in the article 116 A says, “Judicial officers should be independent in the exercise of their functions”. It means that judicial branch is totally free to exercise their functions.
Explanation of Independent Judiciary:
An independent and impartial judiciary is, however a precondition to rule of law. Constitutional provisions will be mere moral precepts yielding no result unless there is machinery for enforcement of those provisions and faithful enforcement of those provisions is not possible in the absence of and independent and impartial judiciary. In different articles it ensures the impartial and independence of Supreme Court. Now, it is mandatory to formation a full free, impartial and independent judiciary to make sure establish of rule of law in the state. “It is subordinate judiciary who brought most closely into contract with the people and it is not less important perhaps indeed even more important that their independence should be place beyond question.”[16] From here it found again that there should not be any interference in the work of judicial branch. Again as the rules of procedure, the Parliament is incorporated with the rule of sub-judice. Also, Parliament should not accept any petition about the topic which contains the matter of sub-judice. Parliament only has got the power to take this petition if there is court of law has applied on that issue.[17] Not only this, any one will not admit question about the decision of the sub-judice.[18]
It is also stated that if any matter is under the legal procedure of the court or more specifically it can be said that any matter that is under the adjudication of the court then the Government or any other executive body or anyone else cannot deal with that issue. While any matter is under the adjudication of the court than no one has the legal authority to go over of that topic. Court has full independence to run over the issue independently.[19]
Again, according to the article 22 of the constitution it ensures that the judiciary branch will be an independent institution. The judiciary branch will work as the separate part of the state. Also, as the separate institution of the state this Judiciary, the district judges will appoint on the recommendation of the Supreme Court. No only this other members of the judicial branch should appointed by the president, but after the discussing about the appointment with the Supreme Court and the Public Service Commission.[20] Moreover the control of the judiciary branch, magistrate and the employees of the judicial service is under the Supreme Court. Supreme Court will check out control the discipline level of these sub organizations of the judiciary service.[21]
Control of President on Judiciary service: In some point President of Bangladesh has control over this. Like, Judiciary service needs permission when they are exercising the power to appoint someone in the service.[22] Again President also has the control over the discipline and other rules and regulation issue of judiciary service.[23]
Free Judicial Department must for rule of law:
The rule of law is types of law which ensure that all types of civil laws are running under perfect condition. Rule of law is usually describes in different way it talks about all types of the human rights and many other topics which are greatly related with the human rights of the people of the state.[24] Now to ensure all the rights it is important to keep away the powerful authorities of countries to misuse their power. That’s why it is important to get a free form of judiciary branch in the country which should be free from the influence of other departments of the country as it can establish the justice in the country and confirm the fulfillment of the foundation of rule of law.
Independence of Judicial Branch and Current Situation of Bangladesh:
Recently government has promised that the Supreme Court has just held that the Presidents satisfaction will limit when an Ordinance needs to publicized. It is obviously a very important step to establish an independent judicial branch.[25] But still in Bangladesh in different ways the independence of the judicial branch has been void. Government is using the judicial sector for their political reason. At the level state practices, the criminal justice system blames for sustaining man ill-thought practices that indeed an onslaught on the higher norm of rule of law.
Observation on the Topic:
From the total observation on the topic and what I have discussed in this whole report I have found that to establish the rule of law must to ensure the freedom of judiciary branch of the country. Not only this, inaugurate the rule of law it must be to keep the judiciary free from the influence of executive body. Now, it has seen in different countries that to establish the rule of law they have ensured the freedom of judiciary department, where judiciary branch is acting as the independent organ of the country. Now, it also ensures in the constitution of Bangladesh that the judiciary must free from the influence of political and other institutions of the country. Again if the president of the country wants to take any action against the judicial organ, then he must need to discuss about this issue with the Supreme Court. In the constitution of the country in article 22, 94 (4), 102 (1), and in many other articles it ensures that the independence of the judiciary branch.
Conclusion:
This whole report bases on discussion of the freedom of judiciary department. From this whole report we have found that in Bangladesh constitution, it highly ensures independence of the judicial branch of the country. No doubt it is must for establishing the rule of law. To ensure the free judiciary in many articles of the constitution of the Bangladesh it says about the importance of the influence less judiciary department. Now, this free form of judicial organ is also a mandatory matter in most of the countries of the world. Also, to ensure the human rights according to the rule of law it compulsory to give total independence to the judicial branch.
Bibliography:
Books:
- Black’s Law Dictionary, Fifth Edition, page 1196 (West Publishing Company 1979)
- Chandra Mohan v. U.P., AIR 1966 SC 1987, 1993
- Islam, M. , Freedom of thought, consequences, speech and press. Rule of law, (Published 2003)
- Robinson, Simon. “For Activist Judges, Try India”, Time Magazine (2006-11-08)
- Tamanaha, Brian Z., On the Rule of Law. Cambridge University Press. (Published 2004)
- Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949)[1] David Clarke, “The many meanings of the rule of law” Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998
Websites:
- Rule of law; available from “http://legal-dictionary.thefreedictionary.com/Rule+of+law” (access from n.d.)
Khan,B.U. (n.d.) The Rule of Law. Dhaka, University of Dhaka, P. 4
- Srivastava, R.K.; A Guide to India’s Legal Research and legal system; available from “http://www.nyulawglobal.org/Globalex/India_Legal_Research.htm” (Access: October, 2008)
- Justice Gerard La Forest, Provincial Judges Reference, para. 306.
Supreme Court; available from “http://www.historylearningsite.co.uk/supreme_court.htm” (access: n.d.)
Others
- Bangladesh Constitution
Article 19, Article 22, Article 27, Article 28, 94(4), 102 (1) , Amended Article 115, Amended Article 116
- Rule of Procedure
Rule 53, Rule 63, Rule 100, Rule 133
- US National Archives
[1] Black’s Law Dictionary, Fifth Edition, page 1196 (West Publishing Company 1979)
[2] Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 9.
[3]Islam, M. (2003). Freedom of thought, consequences, speech and press. Rule of law, 1(82), 58
[4]Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949)
[5] David Clarke, “The many meanings of the rule of law” Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998
[6] US National Archives
[7] Justice Gerard La Forest, Provincial Judges Reference, para. 306.
[8] Supreme Court; available from “http://www.historylearningsite.co.uk/supreme_court.htm” (access: n.d.)
[9] Robinson, Simon. “For Activist Judges, Try India”, Time Magazine (2006-11-08)
[10] Srivastava, R.K.; A Guide to India’s Legal Research and legal system; available from “http://www.nyulawglobal.org/Globalex/India_Legal_Research.htm” (Access: October, 2008)
[11] Article 19 of Bangladesh Constitution
[12] Article 27, Article 28 of Bangladesh Constitution
[13] Article 22“The State shall ensure the separation of judiciary from the executive organs of the State.”
[14] Article 102 (1) of Bangladesh Constitution
[15] Article 94(4) of Bangladesh Constitution
[16] Chandra Mohan v. U.P., AIR 1966 SC 1987, 1993
[17] Rule 100 of Rule of Procedures.
[18] Rule 53 of Rule of Procedures
[19] Rule 63 and 133 of Rule of Procedure
[20] Islam, M. (2003). Freedom of thought, consequences, speech and press. Rule of law, 1(85) P. 62 & Article 115 of Bangladesh Constitution.
[21] Islam, M. (2003). Freedom of thought, consequences, speech and press. Rule of law, 1(85) P. 62 & Article 116 of Bangladesh Constitution
[22] Amended Article 115
[23] Amended Article 116
[24] Rule of law; available from “http://legal-dictionary.thefreedictionary.com/Rule+of+law” (access from n.d.)
[25] Khan,B.U. (n.d.) The Rule of Law. Dhaka, University of Dhaka, P. 4