Independence Of Judiciaty And A Masder Hossain Case
Chapter-01 HISTORY OF BANGLADESH
STRUCTURE OF BANGLADESH GOVERNMENT
Type: Parliamentary democracy
Independence: 1971 (from Pakistan).
Constitution: 1972; amended 1974, 1979, 1986, 1988, 1991, 1996, 2004
Branches: Executive–president (chief of state),
Prime minister (head of government),
Cabinet. Legislative–unicameral Parliament (345 members). Judicial–civil court system based on British model.
Administrative subdivisions: Divisions, districts, subdistricts, unions, villages.
Political parties: 30-40 active political parties. Largest ones include
Bangladesh Nationalist Party (BNP),
The Awami League (AL),
The Jatiya Party,
In addition, the Jamaat-e-Islami Party.
Suffrage: Universal at age 18.
GEOGRAPHY
Bangladesh is a low-lying, riparian country located in South Asia with a largely marshy jungle coastline of 710 kilometers (440 mi.) on the northern littoral of the Bay of Bengal. Formed by a deltaic plain at the confluence of the Ganges (Padma), Brahmaputra (Jamuna), and Meghna Rivers and their tributaries, Bangladesh’s alluvial soil is highly fertile but vulnerable to flood and drought. Hills rise above the plain only in the Chittagong Hill Tracts in the far southeast and the Sylhet division in the northeast. Straddling the Tropic of Cancer, Bangladesh has a subtropical monsoonal climate characterized by heavy seasonal rainfall, moderately warm temperatures, and high humidity. Natural calamities, such as floods, tropical cyclones, tornadoes, and tidal bores affect the country almost every year. Bangladesh also is affected by major cyclones on average 16 times a decade.
Urbanization is proceeding rapidly, and it is estimated that only 30% of the population entering the labor force in the future will be absorbed into agriculture, although many will likely find other kinds of work in rural areas. The areas around Dhaka and Comilla are the most densely settled. The Sundarbans, an area of coastal tropical jungle in the southwest and last wild home of the Bengal tiger, and the Chittagong Hill Tracts on the southeastern border with Burma and India, are the least densely populated.
PEOPLE
The area that is now Bangladesh has a rich historical and cultural past, combining Dravidian, Indo-Aryan, Mongol/Mughul, Arab, Persian, Turkic, and west European cultures. Residents of Bangladesh, about 98% of who are ethnic Bengali and speak Bangla, are called Bangladeshis. Urdu speaking, non-Bengali Muslims of Indian origin, and various tribal groups, mostly in the Chittagong Hill Tracts, comprise the remainder. Most Bangladeshis (about 83%) are Muslims, but Hindus constitute a sizable (16%) minority. There also are a small number of Buddhists, Christians, and animists. English is spoken in urban areas and among the educated.
Sufi religious teachers succeeded in converting many Bengalis to Islam, even before the arrival of Muslim armies from the west. About 1200 AD, Muslim invaders established political control over the Bengal region. This political control also encouraged conversion to Islam. Since then, Islam has played a crucial role in the region’s history and politics, with a Muslim majority emerging, particularly in the eastern region of Bengal.
HISTORY OF BANGLADESH
Bengal was absorbed into the Mughul Empire in the 16th century, and Dhaka, the seat of a nasal (the representative of the emperor), gained some importance as a provincial center. But it remained remote and thus a difficult to govern region–especially the section east of the Brahmaputra River–outside the mainstream of Mughul politics. Portuguese traders and missionaries were the first Europeans to reach Bengal in the latter part of the 15th century. They were followed by representatives of the Dutch, French, and British East India Companies. By the end of the 17th century, the British presence on the Indian subcontinent was centered in Calcutta. During the 18th and 19th centuries, the British gradually extended their commercial contacts and administrative control beyond Calcutta to Bengal. In 1859, the British Crown replaced the East India Company, extending British dominion from Bengal, which became a region of India, in the east to the Indus River in the west.
The rise of nationalism throughout British-controlled India in the late 19th century resulted in mounting animosity between the Hindu and Muslim communities. In 1885, the All-India National Congress was founded with Indian and British membership. Muslims seeking an organization of their own founded the All-India Muslim League in 1906. Although both the League and the Congress supported the goal of Indian self-government within the British Empire, the two parties were unable to agree on a way to ensure the protection of Muslim political, social, and economic rights. The subsequent history of the nationalist movement was characterized by periods of Hindu-Muslim cooperation, as well as by communal antagonism. The idea of a separate Muslim state gained increasing popularity among Indian Muslims after 1936, when the Muslim League suffered a decisive defeat in the first elections under India’s 1935 constitution. In 1940, the Muslim League called for an independent state in regions where Muslims were in the majority. Campaigning on that platform in provincial elections in 1946, the League won the majority of the Muslim seats contested in Bengal. Widespread communal violence followed, especially in Calcutta.
When British India was partitioned and the independent dominions of India and Pakistan were created in 1947, the region of Bengal was divided along religious lines. The predominantly Muslim eastern half was designated East Pakistan–and made part of the newly independent Pakistan–while the predominantly Hindu western part became the Indian state of West Bengal. Pakistan’s history from 1947 to 1971 was marked by political instability and economic difficulties. Dominion status was rejected in 1956 in favor of an “Islamic republic within the Commonwealth.” Attempts at civilian political rule failed, and the government imposed martial law between 1958 and 1962, and again between 1969 and 1971.
Almost from the advent of independent Pakistan in 1947, frictions developed between East and West Pakistan, which were separated by more than 1,000 miles of Indian territory. East Pakistanis felt exploited by the West Pakistan-dominated central government. Linguistic, cultural, and ethnic differences also contributed to the estrangement of East from West Pakistan. Bengalis strongly resisted attempts to impose Urdu as the sole official language of Pakistan. Responding to these grievances, Sheikh Mujibur Rahman in 1948 formed a students’ organization called the Chhatra League. In 1949, Maulana Abdul Hamid Khan Bhasani and some other Bengali leaders formed the East Pakistan Awami Muslim League (AL), a party designed mainly to promote Bengali interests. This party dropped the word Muslim from its name in 1955 and came to be known as Awami League. Mujib became president of the Awami League in 1966 and emerged as leader of the Bengali autonomy movement. In 1966, he was arrested for his political activities.
After the Awami League won almost all the East Pakistan seats of the Pakistan national assembly in 1970-71 elections, West Pakistan opened talks with the East on constitutional questions about the division of power between the central government and the provinces, as well as the formation of a national government headed by the Awami League. The talks proved unsuccessful, however, and on March 1, 1971, Pakistani President Yahya Khan indefinitely postponed the pending national assembly session, precipitating massive civil disobedience in East Pakistan. Mujib was arrested again; his party was banned, and most of his aides fled to India and organized a provisional government. On March 26, 1971, following a bloody crackdown by the Pakistan Army, Bengali nationalists declared an independent People’s Republic of Bangladesh. As fighting grew between the army and the Bengali mukti bahini (“freedom fighters”), an estimated 10 million Bengalis, mainly Hindus, sought refuge in the Indian states of Assam and West Bengal. On April 17, 1971, a provisional government was formed in Meherpur district in western Bangladesh bordering India with Sheikh Mujibur Rahman, who was in prison in Pakistan, as President, Syed Nazrul Islam as Acting President, and Tajuddin Ahmed as Prime Minister.
The crisis in East Pakistan produced new strains in Pakistan’s troubled relations with India. The two nations had fought a war in 1965, mainly in the west, but the refugee pressure in India in the fall of 1971 produced new tensions in the east. Indian sympathies lay with East Pakistan, and in November, India intervened on the side of the Bangladeshis. On December 16, 1971, Pakistani forces surrendered, and Bangladesh–meaning “Bengal country”–was born; the new country became a parliamentary democracy under a 1972 constitution.
The first government of the new nation of Bangladesh was formed in Dhaka with Justice Abu Sayeed Choudhury as President, and Sheikh Mujibur Rahman (“Mujib”)–who was released from Pakistani prison in early 1972–as Prime Minister.
Sheikh Mujibur Rahman, 1972-75
Mujib came to office with immense personal popularity but had difficulty transforming this popular support into the political strength needed to function as head of government. The new constitution, which came into force in December 1972, created a strong executive prime minister, a largely ceremonial presidency, an independent judiciary, and a unicameral legislature on a modified Westminster model. The 1972 constitution adopted as state policy the Awami League’s (AL) four basic principles of nationalism, secularism, socialism, and democracy.
The first parliamentary elections held under the 1972 constitution were in March 1973, with the Awami League winning a massive majority. No other political party in Bangladesh’s early years was able to duplicate or challenge the League’s broad-based appeal, membership, or organizational strength. Relying heavily on experienced civil servants and members of the Awami League, the new Bangladesh Government focused on relief, rehabilitation, and reconstruction of the economy and society. Economic conditions remained precarious, however. In December 1974, Mujib decided that continuing economic deterioration and mounting civil disorder required strong measures. After proclaiming a state of emergency, Mujib used his parliamentary majority to win a constitutional amendment limiting the powers of the legislative and judicial branches, establishing an executive presidency, and instituting a one-party system, the Bangladesh Krishak Sramik Awami League (BAKSAL), which all members of Parliament (and senior civil and military officials) were obliged to join.
Despite some improvement in the economic situation during the first half of 1975, implementation of promised political reforms was slow, and criticism of government policies became increasingly centered on Mujib. In August 1975, Mujib, and most of his family, were assassinated by mid-level army officers. His daughters, Sheikh Hasina and Sheikh Rehana, were out of the country. A new government, headed by former Mujib associate Khandakar Moshtaque, was formed.
Ziaur Rahman, 1975-81
Successive military coups resulted in the emergence of Army Chief of Staff Gen. Ziaur Rahman (“Zia”) as strongman. He pledged the army’s support to the civilian government headed by President Chief Justice Sayem. Acting at Zia’s behest, Sayem dissolved Parliament, promising fresh elections in 1977, and instituted martial law.
Acting behind the scenes of the Martial Law Administration (MLA), Zia sought to invigorate government policy and administration. While continuing the ban on political parties, he sought to revitalize the demoralized bureaucracy, to begin new economic development programs, and to emphasize family planning. In November 1976, Zia became Chief Martial Law Administrator (CMLA) and assumed the presidency upon Sayem’s retirement 5 months later, promising national elections in 1978.
As President, Zia announced a 19-point program of economic reform and began dismantling the MLA. Keeping his promise to hold elections, Zia won a 5-year term in June 1978 elections, with 76% of the vote. In November 1978, his government removed the remaining restrictions on political party activities in time for parliamentary elections in February 1979. These elections, which were contested by more than 30 parties, marked the culmination of Zia’s transformation of Bangladesh’s Government from the MLA to a democratically elected, constitutional one. The AL and the Bangladesh Nationalist Party (BNP), founded by Zia, emerged as the two major parties.
In May 1981, Zia was assassinated in Chittagong by dissident elements of the military. The attempted coup never spread beyond that city, and the major conspirators were either taken into custody or killed. In accordance with the constitution, Vice President Justice Abdus Sattar was sworn in as acting president. He declared a new national emergency and called for election of a new president within 6 months–an election Sattar won as the BNP’s candidate. President Sattar sought to follow the policies of his predecessor and retained essentially the same cabinet, but the army stepped in once again
Hussain Mohammed Ershad, 1982-90
Army Chief of Staff Lt. Gen. H.M. Ershad assumed power in a bloodless coup in March 1982. Like his predecessors, Ershad suspended the constitution and–citing pervasive corruption, ineffectual government, and economic mismanagement–declared martial law. The following year, Ershad assumed the presidency, retaining his positions as army chief and CMLA. During most of 1984, Ershad sought the opposition parties’ participation in local elections under martial law. The opposition’s refusal to participate, however, forced Ershad to abandon these plans. Ershad sought public support for his regime in a national referendum on his leadership in March 1985. He won overwhelmingly, although turnout was small. Two months later, Ershad held elections for local council chairmen. Pro-government candidates won a majority of the posts, setting in motion the President’s ambitious decentralization program. Political life was further liberalized in early 1986, and additional political rights, including the right to hold large public rallies, were restored. At the same time, the Jatiya (National) Party, designed as Ershad’s political vehicle for the transition from martial law, was established.
Despite a boycott by the BNP, led by President Zia’s widow, Begum Khaleda Zia, parliamentary elections were held on schedule in May 1986. The Jatiya Party won a modest majority of the 300 elected seats in the National Assembly. The participation of the Awami League–led by the late President Mujib’s daughter, Sheikh Hasina Wajed–lent the elections some credibility, despite widespread charges of voting irregularities.
Ershad resigned as Army Chief of Staff and retired from military service in preparation for the presidential elections, scheduled for October. Protesting that martial law was still in effect, both the BNP and the AL refused to put up opposing candidates. Ershad easily outdistanced the remaining candidates, taking 84% of the vote. Although Ershad’s government claimed a turnout of more than 50%, opposition leaders, and much of the foreign press, estimated a far lower percentage and alleged voting irregularities.
Ershad continued his stated commitment to lift martial law. In November 1986, his government mustered the necessary two-thirds majority in the National Assembly to amend the constitution and confirm the previous actions of the martial law regime. The President then lifted martial law, and the opposition parties took their elected seats in the National Assembly.
In July 1987, however, after the government hastily pushed through a controversial legislative bill to include military representation on local administrative councils, the opposition walked out of Parliament. Passage of the bill helped spark an opposition movement that quickly gathered momentum, uniting Bangladesh’s opposition parties for the first time. The government began to arrest scores of opposition activists under the country’s Special Powers Act of 1974. Despite these arrests, opposition parties continued to organize protest marches and nationwide strikes. After declaring a state of emergency, Ershad dissolved Parliament and scheduled fresh elections for March 1988.
All major opposition parties refused government overtures to participate in these polls, maintaining that the government was incapable of holding free and fair elections. Despite the opposition boycott, the government proceeded. The ruling Jatiya Party won 251 of the 300 seats. The Parliament, while still regarded by the opposition as an illegitimate body, held its sessions as scheduled, and passed a large number of bills, including, in June 1988, a controversial constitutional amendment making Islam Bangladesh’s state religion and provision for setting up High Court benches in major cities outside of Dhaka. While Islam remains the state religion, the provision for decentralizing the High Court division has been struck down by the Supreme Court.
By 1989, the domestic political situation in the country seemed to have quieted. The local council elections were generally considered by international observers to have been less violent and more free and fair than previous elections. However, opposition to Ershad’s rule began to regain momentum, escalating by the end of 1990 in frequent general strikes, increased campus protests, public rallies, and a general disintegration of law and order.
On December 6, 1990, Ershad offered his resignation. On February 27, 1991, after 2 months of widespread civil unrest, an interim government headed by Acting President Chief Justice Shahabuddin Ahmed oversaw what most observers believed to be the nation’s most free and fair elections to that date.
Khaleda Zia, 1991-96
The center-right BNP won a plurality of seats and formed a government with support from the Islamic fundamentalist party Jamaat-I-Islami, with Khaleda Zia, widow of Ziaur Rahman, obtaining the post of prime minister. Only four parties had more than 10 members elected to the 1991 Parliament: The BNP, led by Prime Minister Begum Khaleda Zia; the AL, led by Sheikh Hasina; the Jamaat-I-Islami (JI), led by Ghulam Azam; and the Jatiya Party (JP), led by acting chairman Mizanur Rahman Choudhury while its founder, former President Ershad, served out a prison sentence on corruption charges. The electorate approved still more changes to the constitution, formally re-creating a parliamentary system and returning governing power to the office of the prime minister, as in Bangladesh’s original 1972 constitution. In October 1991, members of Parliament elected a new head of state, President Abdur Rahman Biswas.
In March 1994, controversy over a parliamentary by-election, which the opposition claimed the government had rigged, led to an indefinite boycott of Parliament by the entire opposition. The opposition also began a program of repeated general strikes to press its demand that Khaleda Zia’s government resign and a caretaker government supervise a general election. Efforts to mediate the dispute, under the auspices of the Commonwealth Secretariat, failed. After another attempt at a negotiated settlement failed narrowly in late December 1994, the opposition resigned en masse from Parliament. The opposition then continued a campaign of marches, demonstrations, and strikes in an effort to force the government to resign. The opposition, including the Awami League’s Sheikh Hasina, pledged to boycott national elections scheduled for February 15, 1996.
In February, Khaleda Zia was re-elected by a landslide in voting boycotted and denounced as unfair by the three main opposition parties. In March 1996, following escalating political turmoil, the sitting Parliament enacted a constitutional amendment to allow a neutral caretaker government to assume power and conduct new parliamentary elections; former Chief Justice Mohammed Habibur Rahman was named Chief Adviser (a position equivalent to prime minister) in the interim government. New parliamentary elections were held in June 1996 and the Awami League won plurality and formed the government with support from the Jatiya Party led by deposed president Ershad; party leader Sheikh Hasina became Prime Minister.
Sheikh Hasina, 1996-2001
Sheikh Hasina formed what she called a “Government of National Consensus” in June 1996, which included one minister from the Jatiya Party and another from the Jatiyo Samajtantric Dal, a very small leftist party. The Jatiya Party never entered into a formal coalition arrangement, and party president H.M. Ershad withdrew his support from the government in September 1997. Only three parties had more than 10 members elected to the 1996 Parliament: The Awami League, BNP, and Jatiya Party. Jatiya Party president, Ershad, was released from prison on bail in January 1997.
International and domestic election observers found the June 1996 election free and fair, and ultimately, the BNP party decided to join the new Parliament. The BNP soon charged that police and Awami League activists were engaged in large-scale harassment and jailing of opposition activists. At the end of 1996, the BNP staged a parliamentary walkout over this and other grievances but returned in January 1997 under a four-point agreement with the ruling party. The BNP asserted that this agreement was never implemented and later staged another walkout in August 1997. The BNP returned to Parliament under another agreement in March 1998.
In June 1999, the BNP and other opposition parties again began to abstain from attending Parliament. Opposition parties staged an increasing number of nationwide general strikes, rising from 6 days of general strikes in 1997 to 27 days in 1999. A four-party opposition alliance formed at the beginning of 1999 announced that it would boycott parliamentary by-elections and local government elections unless the government took steps demanded by the opposition to ensure electoral fairness. The government did not take these steps, and the opposition subsequently boycotted all elections, including municipal council elections in February 1999, several parliamentary by-elections, and the Chittagong city corporation elections in January 2000.
In July 2001, the Awami League government stepped down to allow a caretaker government to preside over parliamentary elections. Political violence that had increased during the Awami League government’s tenure continued to increase through the summer in the run up to the election. In August, Khaleda Zia and Sheikh Hasina agreed during a visit of former President Jimmy Carter to respect the results of the election, join Parliament win or lose, foreswear the use of hartals (violently enforced strikes) as political tools, and if successful in forming a government allow for a more meaningful role for the opposition in Parliament. The caretaker government was successful in containing the violence, which allowed a parliamentary general election to be successfully held on October 1, 2001.
Khaleda Zia, 2001-2006
The four-party alliance led by the BNP won over a two-thirds majority in Parliament. Begum Khaleda Zia was sworn in on October 10, 2001, as Prime Minister for the third time (first in 1991, second after the February 15, 1996 elections).
Despite her August 2001 pledge and all election monitoring groups declaring the election free and fair, Sheikh Hasina condemned the election, rejected the results, and boycotted Parliament. In 2002, however, she led her party legislators back to Parliament, but the Awami League again walked out in June 2003 to protest derogatory remarks about Hasina by a State Minister and the allegedly partisan role of the Parliamentary Speaker. In June 2004, the AL returned to Parliament without having any of their demands met. They then attended Parliament irregularly before announcing a boycott of the entire June 2005 budget session.
On August 17, 2005, near-synchronized blasts of improvised explosive devices in 63 out of 64 administrative districts targeted mainly government buildings and killed two persons. An extremist Islamist group named Jama’atul Mujahideen, Bangladesh (JMB) claimed responsibility for the blasts, which aimed to press home JMB’s demand for a replacement of the secular legal system with Islamic sharia courts. Subsequent attacks on the courts in several districts killed 28 people, including judges, lawyers, and police personnel guarding the courts. A government campaign against the Islamic extremists led to the arrest of hundreds of senior and mid-level JMB leaders. Six top JMB leaders were tried and sentenced to death for their role in the murder of two judges; another leader was tried and sentenced to death in absentia in the same case.
In February 2006, the AL returned to Parliament, demanded early elections, and requested significant changes in the electoral and caretaker government systems to stop alleged moves by the ruling coalition to rig the next election. The AL blamed the BNP for several high-profile attacks on opposition leaders and asserted the BNP was bent on eliminating Sheikh Hasina and the Awami League as a viable force. The BNP and its allies accused the AL of maligning Bangladesh at home and abroad out of jealousy over the government’s performance on development and economic issues. Dialogue between the Secretaries General of the main ruling and opposition parties failed to sort out the electoral reform issues.
Caretaker Government, October 2006-January 2009
The 13th Amendment to the constitution required the president to offer the position of the Chief Adviser to the immediate past Chief Justice of the Supreme Court, Justice K.M. Hasan, once the previous parliamentary session expired on October 28, 2006. The AL opposed Justice Hasan, alleging that he belonged to the ruling BNP in the past and that the BNP government in 2004 amended the constitution to extend the retirement age for the Supreme Court judges to ensure Justice Hasan became the Chief Adviser to help BNP win the elections. Justice Hasan declined the position, and after two days of violent protests, President Iajuddin Ahmed also assumed the role of Chief Adviser to the caretaker government.
On January 3, 2007, the Awami League announced it would boycott the January 22 parliamentary elections. The Awami League planned a series of country-wide general strikes and transportation blockades.
On January 11, 2007, President Iajuddin Ahmed declared a state of emergency, resigned as Chief Adviser, and indefinitely postponed parliamentary elections. On January 12, 2007, former Bangladesh Bank governor Fakhruddin Ahmed was sworn in as the new Chief Adviser, and ten new advisers (ministers) were appointed. Under emergency provisions, the government suspended certain fundamental rights guaranteed by the constitution and detained a large number of politicians and others on suspicion of involvement in corruption and other crimes. In January 2008, a reshuffle of the caretaker government took place, which included the appointment of special assistants to help oversee the functioning of the administration.
On July 16, 2007 the government arrested Awami League president and former Prime Minister Sheikh Hasina on charges of extortion during her tenure as Prime Minister. Hasina was released on parole in June 2008 and allowed to travel to the United States for medical treatment. The cases against her continue. On September 3, 2007, the government arrested BNP chairperson and former Prime Minister Khaleda Zia on charges of corruption. Sheikh Hasina returned from abroad and Khaleda Zia was released from prison to lead their respective parties in the parliamentary election campaign in the fall of 2008.
Municipal elections were held in 13 city corporations and municipalities on August 4, 2008. These elections were judged free and fair by international and domestic observers. The Election Commission registered over 80 million voters in preparation for parliamentary elections, which were held December 29, 2008. The Awami League swept to a landslide victory in what domestic and international observers declared a free, fair and credible election. The caretaker government ended on January 6, 2009 when Awami League President Sheikh Hasina became Prime Minister.
Sheikh Hasina, 2009-Present
Prime Minister Sheikh Hasina appointed a cabinet of relative newcomers upon taking office in January 2009. The BNP-led opposition attended the opening of the Parliament session, but has since mounted several boycotts in protest of perceived slights by the ruling party. Both sides struggle to break free from their shared history of confrontational politics, and key institutions necessary for strengthening democracy remain weak. As the new government was settling into office, it was rocked by a mutiny by border guards on February 25-26, 2009 in which more than 50 army officers were murdered.
Prime Minister Hasina has sought to increase Bangladesh’s presence on the world stage. As leader of one of the country is most vulnerable to climate change, Hasina has been a vocal advocate for mitigation and adaptation by both developed and developing countries, aligning with the Copenhagen Accord in January 2010. In a sharp change from previous administrations, her government has actively confronted violent extremist groups to deny space to terrorist networks and activities within its borders. The simultaneous elections of the Awami League and the Congress Party in India set the stage for renewed bilateral talks between the countries, an atmosphere that has been improved by counterterrorism cooperation. In January 2010, Hasina traveled to New Delhi to meet with Indian Prime Minister Singh, where they signed three agreements on mutual legal assistance in criminal matters, transfer of sentenced persons, and countering terrorism, organized crime, and illegal drug trafficking; and two memoranda of understanding on energy sharing and cultural exchange programs.
GOVERNMENT
The president, while chief of state, holds a largely ceremonial post; the real power is held by the prime minister, who is head of government. The president is elected by the legislature (Parliament) every 5 years. The president’s circumscribed powers are substantially expanded during the tenure of a caretaker government. Under the 13th Amendment, which Parliament passed in March 1996, a caretaker government assumes power temporarily to oversee general elections after dissolution of the Parliament. In the caretaker government, the president has control over the Ministry of Defense, the authority to declare a state of emergency, and the power to dismiss the Chief Adviser and other members of the caretaker government. Once elections have been held and a new government and Parliament are in place, the president’s powers and position revert to their largely ceremonial role. The Chief Adviser and other advisers to the caretaker government must be appointed within 15 days after the current Parliament expires
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The prime minister is appointed by the president. The prime minister must be a Member of Parliament (MP) who the president feels commands the confidence of the majority of other MPs. The cabinet is composed of ministers selected by the prime minister and appointed by the president. At least 90% of the ministers must be MPs. The other 10% may be non-MP experts or “technocrats” who are not otherwise disqualified from being elected MPs. According to the constitution, the president can dissolve Parliament upon the written request of the prime minister.
The legislature is a unicameral, 300-seat body. All of its members are elected by universal suffrage at least every five years. Parliament amended the constitution in May 2004, making a provision for 45 seats reserved for women to be distributed among political parties in proportion to their numerical strength in Parliament. Several women’s groups have demanded direct election to fill the reserved seats for women
Bangladesh’s judiciary is a civil court system based on the British model; the highest court of appeal is the appellate court of the Supreme Court. At the local government level, the country is divided into divisions, districts, sub districts, unions, and villages. Local officials are elected at the union level and selected at the village level. All larger administrative units are run by members of the civil service.
POLITICAL CONDITIONS
Despite serious problems related to a dysfunctional political system, weak governance, and pervasive corruption, Bangladesh remains one of the few democracies in the Muslim world. Bangladeshis regard democracy as an important legacy of their bloody war for independence, and they vote in large numbers. However, democratic institutions and practices remain weak.
Bangladesh is generally a force for moderation in international forums, and it is also a long-time leader in international peacekeeping operations. It is the second-largest contributor to UN peacekeeping operations, with 10,481 troops and police active in November 2009. Its activities in international organizations, with other governments, and with its regional partners to promote human rights, democracy, and free markets are coordinated and high-profile. Bangladesh became a member of the United Nations Human Rights Council in May 2006, and began a second term in 2009. However, an explicit goal of its foreign policy has been to strengthen relations with Islamic states, leading to actions such as voting against a December 2009 UN resolution to improve human rights conditions in Iran.
Bangladesh lies at the strategic crossroads of South and Southeast Asia. Potential terrorist movements and activities in or through Bangladesh pose a potentially serious threat to India, Nepal, Bhutan, and Burma, as well as Bangladesh itself. Consequentially, the Bangladesh Government has banned a number of Islamic extremist groups in recent years. In February 2002, the government banned Shahdat al Hiqma, in February 2005 it banned Jagrata Muslim Janata, Bangladesh (JMJB) and Jama’atul Mujahideen Bangladesh (JMB), and in October 2005 it banned Harkatul Jehad Al Islami (HUJI). Following the August 17, 2005 serial bombings in the country, the government launched a crackdown on extremists. In 2006, seven senior JMB leaders were sentenced to death for their role in the 2005 murder of two judges. Six of the seven were executed in March 2007; another leader was tried and sentenced to death in absentia in the same case. In March 2008, the U.S. Government listed Harkatul Jihadi Islami (HUJI)-Bangladesh as a foreign terrorist organization. In October 2009, The Government of Bangladesh added Hizb-ut-Tahrir to the list of banned terrorist organizations. Given its size and location, a major crisis in Bangladesh could have important consequences for regional stability, particularly if significant refugee movements ensue.
Chapter-02 Introduction
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
Independence of Judiciary
Independence of judiciary means a fair and neutral judicial system of a country. This can afford to take its decisions without any interference of executive or legislative branch of government. 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).
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.
Following four meaning of judicial independence:
1. Substantive Independence of the Judges: It referred to as functional or decisional independence meaning the independence of judges to arrive at their decisions without submitting to any inside or outside pressure;
2. Personal independence: That means the judges are not dependent on government in any way in which might influence them in reaching at decisions in particular cases.
3. Collective Independence: That means institutional administrative and financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative; and
4. Internal Independence: That means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases.
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. “Independence of the judiciary”, it is maintained, “lends prestige to the office of a judge and inspires confidence in the general public”.
Separation of the Judiciary
Separation of the judiciary has been argued both as a cause and a guardian of Formal judicial independence. 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). 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 Hossain, a respected advocate of the 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.
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. 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.
Judicial independence in the constitution
Part VI of the constitution deals with the judiciary. Art. 7 provide that all powers in the Republic shall be effective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps the limit of his power is a necessity, on the judiciary.
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.
Article 116A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975 discussed later in the paper: Subject to the provisions of the constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.
Separation of the judiciary in the constitution
The judicial independence of all judicial officers is unconditional according to the constitution of Bangladesh. This ideal is protected primarily through the concept of separation of the judiciary from the other organs of government. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 and 116 stating respectively: Appointment of persons to offices in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court. It is principally through the above articles that the executive branch has been able to gradually intrude upon and influence the judiciary in Bangladesh, creating enormous problems regarding the quality of jurisdiction and the extent of judicial independence. Recently, separation of the judiciary from the executive has been argued as a necessity based on the unconstitutionality of the present organization and while this may well be true, it appears to be he consequential improved functional independence of the judiciary that is the fundamental reason for separation with unconstitutionality being only an argument to ensure its enactment.
Chapter-02
Why need separated judiciary
In order to promote accountability of government, hinder corruption and protect the fundamental freedoms of citizens from the will of the government of the day, it is essential to keep separate the Parliament’s power to make laws, from the Executive’s power to administer laws, and from the Judiciary’s power to hear and determine disputes according to the law. This separation is designed to protect the people from a concentration of power, and the ability of individuals or groups to manipulate government for personal gain and to ignore the will of the people. A true separation of government powers is essential to ensure the accountability of government, hinder corruption and protect the fundamental freedoms of citizens against the will of the government. Each branch of government must be, and be seen to be, free to act as a check and balance on the other without fear or interference.
There are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.
The question, which assumes significance over here, is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co- ordination among them.
An analysis into these three organs and the relations between them is to be done with the experience in different countries along with India, which will give a clear idea about this doctrine, and its importance in different Constitutions.
Today all the systems might not be opting for the strict separation of powers because that is undesirable and impracticable but implications of this concept can be seen in almost all the countries in its diluted form.
It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government.
Steps for separation of judiciary
The first attempt was taken after the division of the sub-continent in 1947, Pakistan government enacted East Pakistan (then Bangladesh was under Pakistan government) Act No. XXIII of 1957, which provided for separation of judiciary from the executive. The law was still hanging for a simple gazette notification. As regards independence and separation of judiciary, our constitution of 1972 is fairly developed. But the framers of Supreme Law of the land made an unfortunate insertion in article 115 and 116 as ‘Magistrates exercising judicial functions’, which still. Remain unattended. Art 22 in unequivocal term states that ‘the state shall ensure the separation of the judiciary from the executive organs of the state’ as one of the fundamental principles of state policy. It is not readily judicially enforceable. Nevertheless the state cannot ignore it for long. There was under current of demand of implementation of constitutional obligation from the very inception of Bangladesh. But the Fourth Amendment undermined the constitutionalism itself, which obviously destroyed the independence of judiciary. The subsequent upheavals of politics rather by passed it. In 1976 law commission recommended that subordinate judiciary on the criminal side should be separated from the executive.
In the mean time, we witnessed two extra-constitutional processes. In 1987, initiatives were taken to separate the magistracy by amending code of Criminal Procedure, 1898. For unknown reason the Bill could not placed before the Parliament. After the fall of autocratic rule in 1990, exception was high to ensure separation of judiciary. But the next two governments of 1991 & 1996 did nothing in this regard except spoiling its tenure. In 1999, the Supreme Court issued 12-point directives in famous Mazdar Hossain case to ensure separation of judiciary from the executive. The successive governments have taken time again and again to delay the process. It may be recalled that the caretaker government (2001) has all measures to ensure separation but stop at their quest of AL and BNP two major parties of the country. The BNP leaded coalition government is working very slowly towards separation of judiciary. It is a pleasure that Judicial Service Commission and Judicial Pay Commission have been created various rules and amendment in the relevant sections of code of Criminal Procedures 1898 are under consideration of parliament of late the law. Just and Parliamentary Affairs Minister announced that it would take additional six years (!) to ensure separation of judiciary the Daily Star 20.6.2004 this statement is reflective of how indifferent the Government is about separation of judiciary. The demand separation of the judiciary from the executive is universal to ensure the independence of judiciary and safeguard the rights of the people. It is quite unfortunate that the Government is moving towards at shail’s pace.
Judiciary fromthe executive at all levels in 1973 and 1974 (in West Bengal in 1970) respectively. Ensuring justice and independence of judiciary will remain a far very until lower judiciary is separated from the executive. It is mandatory and constitutional obligation of the Government to ensure separation of the judiciary from the executive. Five years have been clasped since the Supreme Court gives it directives in Masdar Hossain case. Law Minister is seeking for additional six years in this regard we can fairly questions how long will it take to ensure separation of judiciary from the executive?
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
Chapter-03
The problems and obstruction of separation of judiciary from the executive of 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. There were of course commitments of the political parties every time before the elections were held (Rahman, 2004). 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.
Lack of conciousness
Of the total people constituting the electorate of our country, I am sure more than 10% voters do not know what actually is mean by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions we should have at least an average knowledge of our present judicial system. Lack of consciousness people’s has no strong movement for this reasonable and demandful wants.
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.
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.
Lack of strong civil society
Civil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.
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. 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.
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.
Lack of popular access to justice
Unlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh. The very wide powers of the highest court to deliver justice have been under-utilized. Less than a dozen-suo moto case during the last ten years has succeeded, perhaps reflecting judicial conservatism.
Overleaping 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 Hossain Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this directive has not been carried out.
Corrupted law makers
The air of separation of judiciary is entering; side by side it has also bad smell. Maximum judges and lawmakers are corrupted. The takes bribe spontaneously and make the case diverted. It is a very common phenomenon in our country. So if the independent judiciary is vested upon the dishonest lawmakers, there must be disorders in law and order situation of Bangladesh. Recently Transparency International of Bangladesh (TIB) exposed the corruption of the lawmakers.
Government negligence
The High Court Division of the Supreme Court of 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 (25 times) 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. It is strongly felt everywhere that immediate steps are taken for separation of the judiciary from the executive organs of the state.
Chapter-04
Masder Hossain case and a brief history of the separation of judiciary in Bangladesh
British period
During the British rule there was a demand for separation of judiciary form the executive. The British administration did not make this separation thinking that separation might go against their colonial interest. In 1919 the matter of separation of judiciary was raised in the House of Commons but it was not discussed on the contention that it was a matter within the jurisdiction of provincial government. In 1921 a resolution regarding separation of judiciary was passed in the Bengal Legislative Assembly which was followed by formation of a committee. The committee reported that there was no practical problem in separation. However, nothing more was done.
Pakistan period
AFTER separation and interdependence in 1947 no step was taken in East Pakistan. The United Front includes the idea of separation in its 21 points formula in 1954. The firs6t Constit