“An analysis on the separation of the judiciary and the impact of Political Interference on the appointment of High Court Judges” –illustrate and evaluate
Judiciary is the power exercised by panel of adjudicators. Judiciary is the custodian of constitution as well as rights of inhabitant in a state to protect under lawful framework. A functioning and an independent judiciary can restrain and hold the executive accountable together with other state institutions as well as political and economic elites. A vigorous judiciary is very important in establishing rule-based governance. For independent functioning, the judiciary needs protection or immunity from unlawful, improper influences, direct, or indirect, on the way in which a judge carriers out his judicial functions. It must be free from any improper influences from any quarter or for any reason, it shall have exclusive jurisdiction to decide its competence. The Judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. It must be provided with adequate resources to properly perform its functions.
The judicial structure, modeled after the British system, is comparable to that of neighboring countries. Besides the 1972 constitution, the fundamental law of the land, there are codes of civil and criminal laws. The upper level courts have exercised independent judgment, recently ruling against the government on a number of occasions in criminal, civil and even political trials. The trials are public. There is a right to recommend and right to appeal. There is also a system of bail. An awesome accumulation of cases remains the most important trouble of the court system.
Judiciary system in Bangladesh
Bangladesh grew to be one of the leading autonomous states in 1971 before that it was part of British and Indian colonial. As a result, a strapping influences of British law found in the Bangladesh legal system Courts and the judges would now is able to set up the rule of law away from the interference of rector. By handing over the power to recommend judges and magistrates of the Supreme Court, it is extremely reducing the capability of politicians to influence the legal system. The article 22 of Bangladesh constitution complete those, the State shell guarantee the partition of judiciary from the executive appendage of the state. However, as this article is not compulsory to execute by the government, government does not accomplish this article. Furthermore, by the constitutional amendment, lawmaker of our country reduces the autonomy of the judicial system. Otherwise, the structure of the judicial system allows the executive branch of our country to control the judicial system.The judiciary of Bangladesh has been facing lot of hindrance to accomplish its sovereignty, to maintain the rule of law and to guarantee its domination.
Separation of judiciary
The separation of the judiciary aims at ensuring independence of the judiciary. The term separation of judiciary means the judicial limb of the government shall be free from interruption of the any organ of the government. It does not mean the judiciary has no relation with other organ of the government like Executive and Legislative. It means the judiciary shall do its function as per law of the country not to by any other means. Moreover, there shall not be any unsuitable or unwarranted interference with the judicial procedure, nor shall judicial decisions by the courts be subject to revision. Moreover, 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 mainly the executive.
Dr. Kamal Hossain, a respected advocate of Bangladesh Supreme Court, explains the concept of severance of the judiciary through the idea of double standards. An executive officer follows plans, which are of a vertical nature, with the higher offices guiding the decisions of the lower officers, who look for the best possible ways to further the plans established by those higher in the pecking order.
We may mention here some draft procedure to separation of judiciary by the government at a glance:
- 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 (ascertainment of field of service, giving
- Promotion, system of control and discipline including grant of vacation and the term of service) procedures, 2001.Judicial Service Commission Procedures, 2001.
- The Code of Criminal Procedures, 1898 (Amendment) Ordinance, 2001.Nevertheless, these drafts have some flaws, which are mentioned below:
Constitutional amendment: First constitutional amendment is essential if the judiciary is to be separated from the executive. In the proposed process, the judges are supposed to be indirect control of the president.
Future of Working Magistrate: How the promotion and other facilities will be given to the magistrates, it is not clear in the draft. If the working magistrates do not go under judiciary, there will be great problem because of shortage of judges.
Mobile Court: In order to sustain the law and order of the country, mobile court plays a vital role. Executive controls it though it is the work of judiciary.
Pay Commission and Finance: Who will provide money/salary to the Judges or Magistrate, if Judiciary is separated; it is not mentioned in the draft. So before separation, pay commission and finance must be fixed.
Advantages of separation of judiciary
An independent judiciary free from influence of legislative and executive organs of the state is the prime requirement of a democratic state. In order to get rule of law in the country separate and independent judiciary system is very important. It also ensures that impartial and consistent law for everyone in the state no matter who is in power, and without influence of proper judgment. In their most recent dialogues with the GoB ,development partners have highlighted the need to ensure separation of the judiciary for purposes of good governance and to ensure access to justice, safety and security. Judiciary becomes institutionally as well as functionally independent, it is expected to be more effective in protecting citizens’ rights and ensuring rule of law. An independent judiciary is expected to work impartially and not under any undue influence from ministers, parliament members, political leaders, media or any powerful person or association. Independence of judiciary truly means that the judges are in a position to make justice in accordance with their promise of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence from executive or legislative or from the parties themselves or from the superiors and colleagues.
Appointment of high court judges with political interference
In early 2010, the Bangladesh daily newspaper Amar Desh published a report that showed judges’ decisions tended to favor the ruling political party. According to the act and article 35(3) in our constitution, every person has the right of independent and impartial judgment. 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 individual for up to seven years.
Politically motivated judge appointments have increased during the past few regimes, says Asif Nazrul,a professor of law at the University of Dhaka.“Among the 45 Supreme Court judges recruited by the previous Bangladesh Nationalist Party (BNP)-led alliance government, more than one-third were allegedly affiliated with the ruling alliance,” he said. Article 95 of the Bangladesh Constitution does not specify the qualifications needed for appointment of judges in the appellate and high court divisions of the Supreme Court. It only says a person can’t be qualified for appointment as a judge unless he or she is a citizen of Bangladesh and has practiced law in the Supreme Court for at least 10 years, has held judicial office in the country for at least 10 years, or has other such qualifications as may be “prescribed by law” for appointment as a judge of the Supreme Court.
In Bangladesh, the law allows the government to make the Supreme Court appointments. Ruhul Quddus Babu was among 17 new judges appointed in April 2010. He was one of nine people accused in the 1988 murder of a leader of the student wing of the political party Bangladesh Jamaat-e-Islami. The charges against all nine accused were dropped shortly before his appointment was announced, causing a strong opposition by the Supreme Court Bar Association (SCBA).
The president upon consultation with the Chief Justice of Bangladesh appoints judges of the Supreme Court. Traditionally, the judges of the Supreme Court are appointed from amongst the practitioners and judges of the subordinate judiciary based on their legal acumen, neutrality and professional reputation. The Supreme Court of Bangladesh has known many renowned jurists and judges. The relationship between the lawyers and the judges has always been that of mutual respect and admiration. The doctrine of political question has evolved in constitutional jurisprudence in many countries, which requires the courts from adjudicating on political issues in order to uphold the neutral and apolitical image of the judiciary. However, the impact of such political appointment has been felt very recently, when some judges of the higher judiciary have trespassed into adjudicating on politically disputed issues. This has adversely affected people’s confidence in the judiciary and has questioned the long-standing politically neutral character of our judiciary.
Political intervention is a main impediment to the accurate fairness. Although judiciary system is separated from the administrative branch, Government of Bangladesh should ensure which remains free in any circumstances. Some judicial ethics is important which are shown below:
· A judge should uphold the integrity and independence of the judiciary
· A judge should avoid impropriety and the appearance of Impropriety in all activities.
· A judge should perform the duties of the office impartially and diligently. The judicial duties of a judge take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:
(1) A judge should be faithful to and maintain professional competence in the law and should not
(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.
(3) A judge should be patient, dignified, respectful, and courteous to litigants, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of those officers to the judge’s control, including lawyers to the extent consistent with their role in adversarial system.
(4) A judge should accord to every person who is legally interested in a proceeding, or the person’s lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex- parte communications on the merits, or procedures affecting the merits of a pending or impending proceeding.
(5) A judge should dispose promptly the business of the Court including avoiding inordinate delay in delivering judgments/orders.
(6)A judge should avoid public comment on the merits of a pending or impending court case.
In a word, though complete independence of three organs of a government is impossible and hampers the check and balance of the administration, required level of independence, especially independence of judiciary from legislative and executive, is important to sustain the lawful right and expansion for a democratic nation. All the people concerned with judiciary have to take part in active and effective role from honest attitude. Then the freedom of judiciary will convey efficient result in future .Moreover we have to appreciate the separation of judiciary in Bangladesh, which is implemented in November 1, 2007 though it will take time to get pleasure from the full benefit of this separation of judiciary.
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