Independence and Separation of the Judiciary both are necessary to suffice the rule of law
Introduction:
Judiciary is the guardian of constitution as well as rights of citizen in a state to protect under legal framework. This organ is not only confined to be an organ like executive and legislature but also something more. Judiciary is the last hope and aspiration to restore the rights of citizen in a country. But this judiciary cannot act to restore these rights unless and until it is free from any undue influence and interference of any other organ. Therefore, it is an obvious need that the judiciary should be separated in truest sense to perform its functions independently which is the main object of the judiciary. But mere separation is not enough to perform its function effectively. And where there is no effective separation of judiciary, there is no independent judiciary and where there is no independent judiciary, there is no rule of law because, there is an intrinsic relation between independent judiciary and rule of law. Furthermore, Rule of law and democracy are interrelated. That is why democracy cannot exist where there is no rule of law, and there is no rule of law where there is no independent judiciary. This study is to show the intrinsic relation between judiciary and rule of law as well as the necessity of independent and separate judiciary to survive democracy in the perspective of Bangladesh. In current practice, persons in judicial service do not carry out purely judicial functions, while magistrates do not carry out purely executive functions, and there is considerable ‘mixing’ within both categories.
Persons in judicial service are required to preside over civil courts, criminal courts, and the special courts and tribunals. In practice, in almost every district other than Dhaka, given the limited number of judges and the limited amount of court space, the same person presides over both the civil and criminal court.
In addition to carrying out these judicial functions, persons in judicial service may also be posted on ’deputation’ to quasi-judicial, judicial, executive and administrative posts .Deputation is a service condition applicable to any person who holds a post in any Service of the Republic, as defined in Bangladesh Civil Service Recruitment Rules, 1981 (“the 1981 Rules”).
Separation of power:
It should be rational to clarify the term separation of power before describing the concept of the separation of judiciary because separation of judiciary was mainly originated on the basic concept of separation of power. French great political philosopher Baron Montesquieu is the founder of the doctrine of separation of power. He stressed the concept in the following manner: “When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty. Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man or the same body whether of the nobles or the people, were to exercise those three powers that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes.” Montesquieu view is that the three organs of the state i.e. executive, legislative and judiciary will perform their function separately and independently and especially judiciary must perform its function independently without any interference of other two organs. Because Montesquieu did specify that the independence of the judiciary has to be real and not apparent merely. The judiciary was generally seen as the most important of powers, independent and unchecked, and also considered the least dangerous. The separation of powers, also known as tries political, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.
Separation of Judiciary:
The term separation of judiciary means the judicial organ 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. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, and pressures, threats of interferences, direct of indirect, from any quarter or for any reason. And there shall not be any inappropriate or unwarranted interference with the judicial process, 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 particularly the executive. Dr. Kamal Hossain, a respected advocate of Bangladesh Supreme Court, explains the concept of separation 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. 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.
The basis of the separation of Judiciary is contained in Article 22 (Part II, Fundamental Principles of State Policy) of our Constitution, which states that the State shall ensure separation of the Judiciary from the Executive. The constitution of Bangladesh vests the executive power in the executive and the legislative power in parliament.
Independence of Judiciary:
The meaning of the independence of the judiciary is still not clear after years of its existence. Our constitution by the way of the provisions just talks of the separation of the judiciary but it is no where defined what actually is the independence of the judiciary. The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature. The other meaning of the judicial independence can be found out by looking at the writings of the scholars who have researched on the topic. Scholars define judiciary by talking about the independence of the judges which constitutes judiciary. [1]Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor. So the independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms a part of the judiciary. Shoetree defines independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges. [2]The concept of judicial independence comprises following four meanings:
· Substantive Independence
· Personal Independence
· Collective Independence
· Internal Independence:
The rule of law:
Rule of law is a legal term that suggests that governmental decisions be made by applying known legal principles the phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A.V.Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”. Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by natural rights. Despite wide use by politicians, judges and academics, the rule of law has been described as “an exceedingly elusive notion “giving rise to a “rampant divergence of understandings … everyone is for it but have contrasting convictions about what it is. At least two principal conceptions of the rule of law can be identified: a formalist or “thin” and a substantive or “thick” definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.
Explaining the third principle, A.V. Dicey states that basic rights are to be determined by judicial decisions in concrete cases which have actually arisen between the parties. The issue arises even we accept the traditional concept of rule of law, and the judiciary is not separate and independent, whether is it possible for the judiciary to determines rights of citizens in the truest sense? The answer is obvious to be negative. It should be mentioned there that although judicial decision in Bangladesh has no mandatory binding however it has a persuasive value as provided by article-111 of the constitution of Bangladesh- The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the supreme court shall be binding on all courts subordinate to it. It is recognized undoubtedly that judiciary plays the prime stone role in restoring the rights of citizen. It never be possible unless and until this judiciary is separate and independent.
Recommendation:
· Appointment of judges is the most important way to control judiciary by executive. Therefore it is recommended that the appointment of judges, both in higher and subordinate judiciary should be by the judicial commission itself. Judicial commission will uniform rules and provisions as to appointment of judges which must be of transparent and effective to appoint qualified judges. Because, sometimes unqualified persons are appointed as judges by undue influence or on political consideration.
· Finance is a driving resource of judiciary. But it is controlled by executive organ through minister. Therefore, Judiciary should have autonomous financial source allocated by the government which will be adequate financial support to perform its functions properly.
· Undue influence from executive is a common barrier in delivering judgment by judges. Therefore it is crying necessity to have more safe protection for judicial officers as well as Judiciary should not be dictated by any undue influence from executive organ.
· Judiciary has to depend on executive for investigation of dispute. Some extent it is in all control of executive. For example, police investigation in criminal case which is exclusively in the hand of police. Therefore, Judiciary must have its own investigation team.
· Application and interpretation of law are under the exclusive jurisdiction of judges. They can interpret it in narrow sense or wide sense. If judges are black letter judges, they only apply narrow interpretation. Judges who apply wide interpretation are called judicial activist. Judiciary needs judicial activist judges to ensure rule of law. Because only judicial activist judges dare to write against illegal phenomenon of executive. And judicial activist judges can never have unless and until there is independent judiciary. Facility should be provided to the Judges in applying pragmatic approach rather than to be black letter judges.
Reference:
· An eminent lawyer and the president of the constituent assembly to frame the constitution of the peoples’ Republic of Bangladesh. Visited 18.0612
· Bradley, Anthony. “Separation of Powers in a Constitutional Democracy”. Available at. http://www.ifes.org/rule_of_law/JI_Conferences/Malawi/Paper – Bradley.pdf (October 28, 2003). Visited 17.0612
· Rahman, Khan Ferdousour. Independence of judiciary: A dream comes true. Retrieved from: http
· K.M.Hasan, Justice. Independence of judiciary and the rule of low, The Independent, Daily newspaper, January27, 2004. Visited 17.06.12
[1] The Independent, Daily newspaper, January27, 2004.
[2] Separation of Powers in a Constitutional Democracy. Bradley, Anthony.