Independence of the Judiciary in Bangladesh: Far from the reality
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 consistent with the aid of a sound judicial system. Judiciary restores 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 riding surrounding judiciary. From the definition 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.
Conceptual Analysis
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. 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. 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. [1]The concept of judicial independence as recent international efforts to this field advocates, comprises following four meaning of judicial independence:
(i) Fundamental 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;
(ii) 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;
(iii) 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;
(iv) 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 compensation and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it (Rahman, 2000, 147). “Independence of the judiciary”, it is maintained, “lends prestige to the office of a judge and inspires confidence in the general public” (Robson, 1951).
Separation of the Judiciary
Separation of the judiciary has been argued both as a cause of formal judicial independence (Hadley, 2004). 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 session 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 upright 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 (Dr. Kamal, 2004; 5 March).
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 (Hadley; 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.
Independence Judiciary in Bangladesh: How Far the Dream!
Separation of judiciary from the executive and judicial independence appears to have become an endless process. The debate started in the late 18th century and continues even now (Ali, 2004). However now it is important to understand the present structure of the judiciary to be able to understand where executive intrusions into the judiciary originate and how these affect the independence of individual judges.
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.
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 referred to simply as the government. In Bangladesh, the party 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 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. 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.
From the above we can see that, government has a huge influence to appoint and control the promotion and other disciplinary subjects of the judges are 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 At the same time President, sometimes-in consultation with the Chief Justice appoints the judges of the Supreme Court. [2]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. 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. For this consequence, the judicial system lost its credibility at that time.
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. This kind of inequality in justice also has a bad impact on economy. Article 22 demand separation of judiciary from the executive. The Deputy Commissioner has both executive power and judicial power. 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.
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.
2. The citizenry and government must have more respect for 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 (ADB, 2003).
3. In Bangladesh with immediate technical assistance for carrying out the directives of the MasdarHossain judgment, particular knowledge of how the functional separation of powers is initiated and implemented in other countries should be seriously considered. The creation of judicial service commission (JSC) implies a drastic expansion of administrative responsibilities for the Supreme Court, a burden that it is currently ill suited and to shoulder (ADB, 2003). The rudimentary technical competence of the administration of the Supreme Court is an area of concern, and courts in general are in need of more technical assistance.
4. The appointment of Judges of the Supreme Court, currently done by the President, is susceptible to external influences in a selection process that is nontransparent. A change in the system of selecting and appointing judges of High Court Division is another aspect requiring attention. The courts themselves must reassure ordinary citizens to seek justice through their chambers. At present, lower courts are doubted and the judiciary in general, if it is to be effective, must encourage and support citizens’ access to justice.
5. Improvements in court administration must be made at both the national and the District levels. Administrative reorganization is vital at this time in order to put in place the structures and processes necessary to administer an independent judiciary.
6. An independent judicial service commission.
7. Independence of magistrate from the control of the executive.
8. Implement all the article of constitution related to the independence of judiciary.
9. Willingness of politicians regarding amendment of constitution which can hamper the independence of judiciary.
10. Amendment of constitutional article which are against the independence of judiciary.
Concluding Remarks
Judiciary forms the basic element of the status shaped by deliberate policies to establish social justice and equality of all citizens. 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 attitude 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. The Attorney General has threatened not to ask for a further time extension on behalf of the government and the recent creation of an alternative political base headed by former President Badruddoza Chowdhury and Dr. Kamal Hossain has threatened the political legacies currently dominating politics in Bangladesh. In order to get back the trust of the public upon the Judiciary, it is essential to be separated from the Executive. First of all the government has to take steps to remove all the impediments. Such as recently the Govt. Has formed the Judicial Service Commission, the will play an important role to make the judiciary independent. But it is also true that all the roads of justice may not be opened even after the separation of judiciary. If the judicial edifice weakens, the democratic system will not function, and social fabric will be broken down. So, here all the people concerned with judiciary have to play active and effective role from honest point of view. Then the independence of judiciary will bring effective fruits in future.
References
1. 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
2. Ali, S.A.M.M. 2004. Wither separation of the judiciary. The Daily Star. Retrieved fromhttp://www.thedailysatar.net/2004/01/07/d401070 20330.htm
3. Halim, M.A. 1998. Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka: Rico printers.
4. Rahman, S.M. Matiur. 2004. The Problems of Separation of Judiciary from the Executive. Retrieved from http://www.thedailystar.net. /law/2004/09/04/.
5. 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.htm3. Bari, H.M. Fazlul. 2004. Separation of Judiciary How long will it take?
6. Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh.–Retrievedfrom
Www.ais-dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf
7. Halim, M.A. 1998. Constitution, Constitutional Law and Politics: Bangladesh
Perspective. Dhaka: Rico printers.
8. Rahman, M. Ziaur. 2005. Separation of Judiciary from the Executive. A monthly
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9. Rahman, S.M. Matiur. 2004. The Problems of Separation of Judiciary from the
Executive.Retrieved from http://www.thedailystar.net. /law/2004/09/04/.
[1] Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh.
[2] Rahman, M. Ziaur. 2005. Separation of Judiciary from the Executive.
[3] In political science and constitutional law, the executive is the branch of government responsible for the day-to-day management of the state Retrieve from http://en.wikipedia.org/wiki/Executive_(government)