Constitution has manifested independence of Judiciary however appointment of High court judges without political influence is far from truth

Constitution has manifested independence of Judiciary however appointment of High court judges without political influence is far from truth -explain

1. Introduction:

In a democratic state, the power rests on three separate organs, namely the executive, the legislature and the judiciary. The constitution of Bangladesh vests the executive power in the executive and the legislative power in parliament. Though there is no specific vesting of judicial power, it is vested in the judiciary; the judiciary comprises all courts and tribunals, which performs the delicate task of ensuring rule of law in the society. 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. The dysfunction of judiciary impacts more severely than that of any other institution as it removes from the mind of people the sense of attachment with the society. In Bangladesh the Judicial norms and practice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary.

Independent judiciary is the sin qua non-of a democratic government. And separation of judiciary is the precondition of the sound and independent judiciary. Since the beginning of the British colonial rule[1], the question of separation of judiciary from the executive has been a continuing debate, though Bangladesh has been past thirty four years of its independence, she has failed to separate the judiciary from the executive. Today it is a burning question of our country. This paper attempts to explore to what extent initiatives, have been taken to separate the judiciary from the executive and what are the obstacles available to implement the initiatives in this path. I have also discussed in briefly the conceptual side and lastly concluded with some recommendations, so that policy of separation of judiciary from the executive would be effective and helpful for the policy makers and implementation

2. Independence of Judiciary:

Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. According to Barrister Rahman, “taking into consideration some of the recent discussions made in the Beijing Statement of Independence of the Judiciary (a statement resulting from the cumulated views of thirty-two Asian and Pacific Chief Justices) Judicial independence is defined, in this report 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)” ( 2004,np)

Barrister Halim says that “Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from executive or legislative or from the parties themselves or from the superiors and colleagues.” The concept of judicial independence as recent international efforts to this field suggests, comprises above mentioned four meaning of judicial independence (Bari, 1993, 2: Rahman, 2000).

3. Separation of Judiciary:

According to Hadley “Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence.” (2004, np) The concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive)[2]. For example, in Bangladesh the president in consultation with the Supreme Court according to the constitution appoints judicial officers other circumstances include functional aspects of the judicial system when the administration of justice is in some way, affected by executive orders or actions –. Executive abuse of this constitutional order result in biased appointment of judges, and other officers of the judicial cadre, favoring individuals who support the governing political party. Dr. Kamal Husain, a respected advocate of the Supreme Court, explains “the concept of separation of the judiciary through the idea of double standards.” (2004; 5 March) 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. Executive decisions are made in lines of policy; law is not a policy. Judges or magistrates performing judicial functions must examine what evidence is given and find a way to best apply it to the law; there is less room for an individual’s perceptions in judicial decisions.

Hadley suggested that Complete separation is relatively unheard or outside of theory, meaning no judiciary is completely severed from the administrative and legislative bodies because this reduces the potency of checks and balances and creates inefficient communication between organs of the state (2004). A high degree of separation, however, can be a strong guardian of judicial independence, as this paper will attempt to prove. The constitution of Bangladesh is the first defense of judicial independence, presiding over all the “Republic’s affairs and framing the organization and administration of the government. While constitutional flows exist, regarding separation of the judiciary, there are adequate provisions for formal judicial independence.

4. The Problems and Obstruction of Separation of Judiciary from the Executive in Bangladesh:

The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. So far many erudite articles written by highly intellectual persons of the relevant fields were published in the leading newspapers of our country.

But those intellectual exercises have gone unheeded so far. Barrister Rahman identified that There were of course commitments of the political parties every time before the elections were held (2004, p.4). We must seek the reasons why this very important organ of the state has so far not been given the shape as enunciated in the sacred constitution where the nation has solemnly affirmed for an independent judicial system. I have point out here some common problems.

a. 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.

b. 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).

c. Lack of Democratic Culture:

We have reached upon 34th 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. Barrister Rahman commented that “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.” (2004, editorial page, p.3)

d. 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.

e. 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 Hussein Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this directive has not been carried out.

f. Government Negligence:

The High Court Division of the Supreme Court 10.

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. Formally land officially the government is committed to implementing these directives, which would also include some changes in the criminal procedural laws. However these repeated extensions suggest continuing challenges to the ultimate implementation of University of Rajshahi, Rajshahi the directives (ADB, 2004). It is strongly felt everywhere that immediate steps are taken for separation of the judiciary from the executive organ of the state.

5. Recommendations

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.

1. 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. The citizenry and government must have more respect for each other.

2. 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.

Conclusion

Judiciary forms the basic element of the statehood shaped by deliberate policies to establish social justice and equality of all citizens. In a modern society it must, therefore, reflect the fundamental principle of state policy as well as universal value and ethics of international human rights regime, which are not fundamentally altered by cultural or class differences. In order to meet the challenge of the next century and to accomplish the constitutional goal, to secure equal justice in economic, political and social life, it is important to extend the judicial mind and the due process in all spheres of administrative dealings with the affairs of men and society. Pressure on the government to implement the 12-point the 12-point directive continues to mount in the current heat of Bangladeshi politics.

Bibliography:

1. International Crisis Group. 2009. Bangladesh: Getting Police Reform on Track. Retrieved on 1st June from http://www.crisisgroup.org/~/media/Files/asia/southasia/Bangladesh/182 Bangladesh Getting Police Reform onTrack.ashx.

2. Asian Development Bank, 2006, strengthening the Criminal Justice System, retrieved on 8th june fromhttp://www.adb.org/Documents/Books/Strengthening Criminal-Justice-system/strengthening-criminal-justice system. pdf file.

3. Halim, M.A. 1998. Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka: Rico printers.

4. . Rahman, M. Ziaur. 2005. Separation of Judiciary from the Executive. A monthlyCurrent Affairs, January-2005. Dhaka: Professors Publishers Ltd.

5. The Daily Star, 20 June 2004,(editorial).

6. Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh Retrieved on 29th may from

www.ais-dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf.

[1]TheBritish Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries.

[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 Bari, H.M. Fazlul. 2004. Separation of Judiciary How long will it take? 3. Retrieved from:http://www.thedailystar.net/law/2004/08/04/vision.htm.

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