An independent judiciary free from influence of legislative and executive organs of the state is the prime requirement of a democratic state.
Introduction
Now a day’s be a democratic country is a prime requirement for the development of a country.[1] From the definition[2] of democracy, we found that there are three main organs of a democratic government. These are legislative, executive and judiciary. The legislature will legislate, executive will execute the law and the judiciary is to apply laws to the individuals.[3] As the fields of this thee organs are unique, they must be independent from one another’s influence.
This essay will be discussed about independence of judiciary, judicial independence in Bangladesh constitution, influence of legislative and executive on judicial system and its impact and importance of separation of judicial system.
Independence of judiciary
The dictionary meaning of ‘independence’ is ‘not subject to the control of any person, country, free to act as one pleases; autonomous, not affected by other etc. However, this meaning of independence is not applicable for the independence of judiciary. Judicial independence is defined, as a Judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media (personal independence), or from the superior officers (internal independence) .[4] 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[5].
Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it[6]
Separation of judiciary and Bangladesh constitution:
The article 22[7] of Bangladesh constitution utter that, the State shell ensures the separation of judiciary from the executive organ of the state.[8] However, as this article is not mandatory to execute by the government, government does not execute this article. More over, by the constitutional amendment, lawmaker of our country reduces the independence of the judicial system. Besides this, the structure of the judicial system allows the executive branch of our country to influence the judicial system.
Influence of legislature:
Regarding appointment of persons to subordinate courts, Article 115 of the constitution of Bangladesh says, “In the judicial service or as magistrate exercising judicial functions shell be made by the President in accordance with rules made by him in that behalf.”
It is important to mention that this Article 115 is substituted for the original article 115 by the Constitution (4th Amendment) Act.1975 (Act 2 of 1975). In original Article 115 stated that the President would make the appointment but in case of direct judges the appointment would be made by the recommendation of the Supreme Court and in case of other judges in accordance with rules made by the Precedent after consulting with the appropriate Public service Commission and Supreme Court.[9]
To control and discipline the subordinate court, the Article 116 says,” The control and discipline of the persons employed in the judicial service and magistrates exercising judicial function shell vest in the President and shell be exercised by him in consultation of supreme Court.”
However, in the original Article 116, the power of posting, promotion and grant of leave and discipline of the persons employed in the judicial service and magistrates exercising judicial function were given to the Supreme Court.
From the above, we can see that, legislatures gave the power to the President who is the part of the executive. And in this way, legislatures influence the independence of judiciary.
Influence of executive:
In many countries, executive[10] referred to simply as the government.[11] In Bangladesh, the party[12] which has the majority in the parliament runs the government and parliament members elects the President.
At a glance, the judiciary of Bangladesh consists of two divisions, the Supreme Court and the subordinate courts. The Chief Justice of the Supreme Court sits in the Appellate Division[13] and is the Chief Justice of Bangladesh. The president, sometimes-in consultation with the Chief Justice appoints the judges of the Supreme Court.
The lower judiciary in Bangladesh also consists of two parts.[14] Then there are also the courts of Magistrates, the Judges of the District Courts are under the jurisdiction of the Supreme Court and belong to the Bangladesh civil service, while judges in the courts of Magistrates are members of the country’s, administrative cadre, which is responsible for the general administration of its territories and are not controlled not the judicial branch, but by the Ministry of Establishment and by the government.[15]
From the above we can see that, government has a huge influence to appoint and control the promotion and other disciplinary subject of the judges, spatially on the magistrates.
Impact of influence by legislature and executive on judicial system:
In Bangladesh, generally President is elected by the ruling government and s/he make decision in consultation with the Prime Minister[16] At the same time President, sometimes-in consultation with the Chief Justice appoints the judges of the Supreme Court. As a result, While some Chief Justice in the past have insisted on being consulted on these appointments, others were not so exacting, leading to “Political” appointments by the party in power.[17] A controversy was occurred just for a political appointment was done by the previous government appoint a High Court judge who was convicted to manipulate his LLB transcript.[18] For this consequence, the judicial system lost its credibility at that time.
[19] Acording to Article 35(3)[20] 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. The most notable executive interference’s in the lower judiciary come through the appointment of judges and more importantly executive control over the magistrates. As he knows that his posting, promotion and prospect depends on his pleasing the executive head, he will generally tries not give any judgment against his boss though he knows that second party is not getting the impartial judgment.[21] This kind of inequality in justice also has a bad impact on economy.[22] Article 22[23] demand separation of judiciary from the executive. The Deputy Commissioner has both executive power and judicial power.[24] Therefore, influence of legislative and executive interference in judicial system not only hampers the human rights according to the constitution but also hampers the overall growth of a country.
Importance of Separation of judiciary:
From the above discussion, we can say that separation of judiciary is truly important for a democratic country. The idea of “Separation of judiciary” is 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.[25] The separation of the judiciary basically aims at ensuring independence of the judiciary. Once the 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.
In most cases, judicial independence and separation of judiciary is executed by giving judges long tenures, making them not easily removable, ensuring that their leave, adequate remuneration, promotion, transfer and other conditions of service are adequately secured by law and reiterating that decisions of those matters are not influenced by political or any other unjustifiable interests.[26]
Recommendation
For the independence of judiciary, some criteria have to be fulfilled. These are
1. An independent judicial service commission.
2. Independence of magistrate from the control of the executive.
3. Implement all the article of constitution related to the independence of judiciary.
4. Willingness of politicians regarding amendment of constitution which can hamper the independence of judiciary.
5. Amendment of constitutional article which are against the independence of judiciary.
Conclusion
Although complete independence of three organs of a government is impossible and hampers the check and balance of the government, required level of independence, especially independence of judiciary from legislative and executive, is important to maintain the constitutional right and development for a democratic country. So we have to appreciate the separation of judiciary in Bangladesh which is implemented in November 1, 2007 though it will take time to enjoy the full benefit of this separation of judiciary.
Bibliography:
1. Akkas, Sarkar Ali. Independence and Accountability of Judiciary — A Critical Review, Dhaka, the Centre for Rights and Governance (CRiG), 2004,
2. Ali, S.A.M.M. 2004. Wither separation of the judiciary. The Daily Star. Retrieved from http://www.thedailysatar.net/2004/01/07/d401070 20330.htm
3. Alam,M.Shah.2004. Addition to legal literature. Retrieved from: http://www.thedailystar.net/law/2004/10/01/book.htm
4. ADB. 2003. Judicial Independence Overview and Country-level Summaries. Asian Development Bank. Retrieved January 10, 2005, from http://www.adb.org/Documents/Events/2003/RETA5987/Final_overview_Report_pdf
5. Bari, H.M. Fazlul. 2004. Separation of Judiciary How long will it take? Retrieved .
from: http://www.thedailystar.net/law/2004/08/04/vision.htm.
6. Halim, M.A. 1998. Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka: Rico printers.
7. Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh.–Retrievedfrom
Www.ais-dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf
8. Hossain Zakir, The Constitution and Judicial independence, The Daily Star, November 21, 2004
9. Hoque M.S. Judicial Transgression, The Bangladesh Observer, March 23, 2004
10. Justice Ahmed,Naimuddin.2004. Independence of judiciary: role of Supreme Court. Retrive from: http://www.newagebd.com/store/anni07/05.html
11. Justice Hossain Kemaluddin , Independence of judiciary in Bangladesh- lawand practice, Dhaka, Anindya Computer, 1994.
12. Justice Hasan K M, Independence of judiciary and the rule of low, The Independent, January27, 2004
13. Mollah, Md. Awal Hossain. Seperation of Judiciary in Bangladesh Retrieved from:http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan020065.pdf
14. Nazrul,Asif. Deciphering independence of judiciary. Retrieved from
http:// www.thedailystar.net. /law/2004/09/04/.
15. Rahman, S.M. Matiur. 2004. The Problems of Separation of Judiciary from the
Executive. Retrieved from http://www.thedailystar.net. /law/2004/09/04/.
16. Rahman,Khan Ferdousour. Independence of judiciary: A dream comes true.Retrieved from: http://www.thedailystar.net/law/2007/03/04/opinion.htm
17.Rahman Syed Sadiqur, Controversy should be over, the independent, Juty 29, 2003
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[1] See wikipedia.org/wiki/Democracy
[2] Democracy means representative democracy, in which citizens elect officials to make political decisions, formulate laws, and administer programs for the public good.
[3] Justice K Hossain, Independence of judiciary, page 90
[4] See unpan1.un.org/intradoc/groups/ public/documents/apcity/unpan020065.pdf, page 1
[5] See unpan1.un.org/intradoc/groups/ public/documents/apcity/unpan020065.pdf
[6] See unpan1.un.org/intradoc/groups/ public/documents/apcity/unpan020065.pdf
[7] Article 22 exists in the Fundamental principle of the State Policy chapter, the execution of which is not mandatory on the part of the government.
[8] Justice K Hossain, Independence of judiciary, page 91
[9] Justice K Hossain, Independence of judiciary, page 90
[10] In political science and constitutional law, the executive is the branch of government responsible for the day-to-day management of the state
[11] http://en.wikipedia.org/wiki/Executive_(government)
[12] , general people elect the parliament members in Bangladesh
[13] The Appellate division is one of the divisions of Supreme Court. Another division of Supreme Court is the High court.
[14] These are District courts and Sessions courts.
[15] See unpan1.un.org/intradoc/groups/ public/documents/apcity/unpan020065.pdf
[16] Prime minister is the head of the government and also the leader of ruling party.
[17] See http://www.adb.org/Documents/Events/2003/RETA5987/Final_overview_Report_pdf
[18] The Daily Star, November 21, 2004.
[19] See independence of judiciary and the rule of law, the Independent , 24 June 2004
[20] Art. 35(3) of the constitution provide “Every person accused of a criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by the law.
[21] See justice Kemaluddin Hossain, Independence of judiciary page 91
[22] Economist prof. Wahiduddin mahmood in a round table meeting. The News Today, august 15 2005.
[23] The article 22 of Bangladesh constitution utter that, the State shell ensures the separation of judiciary from the executive organ of the state.
[24] The deputy Commissioner who is the chief executive in the district can arrest and prosecute a person. He also acts as a judge and tries criminal cases.
[25] Md. Awal Hossain Mollah, Separation of Judiciary and Judicial Independence in Bangladesh, Page 2
[26] See www.newagebd.com/store/anni07/05.html ,Deciphering independence of judiciary, Dr Asif Nazrul