“Independence of the Judiciary in Bangladesh in context to the land mark Masdar Hossain Case”
Nowadays to be a democratic country is a prime requirement for the development of a country. 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. As the fields of this thee organs are unique, they must be independent from one another’s influence.
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. Separation of judiciary from the executive is the precondition of the sound and independent judiciary. Since the beginning of the British colonial rule, the separation of judiciary from the executive was an expectation of justice awaiting people. Though Bangladesh has been past thirty four years of its independence, she has failed to separate the judiciary from the executive until 2007. The event of Separation of judiciary of Bangladesh has been a crucial decision of Bangladesh Supreme Court in the history of rule of Law.
Independence of Judiciary
The dictionary meaning of ‘independence’ is ‘not subject to the control of any person, country, free to act as one pleases; autonomous, not affected by other etc. However, this meaning of independence is not applicable for the independence of judiciary. Judicial independence is defined, as a Judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media (personal independence), or from the superior officers (internal independence) . Independence of judiciary truly means that the judges are in a position to make justice in accordance with their promise of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence from executive or legislative or from the parties themselves or from the superiors and colleagues.
Part five of our constitution deals with the judiciary. The constitution says that, all powers in the Republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority of, this Constitution.
So every legal step of the Republic should be according to the constitution. The Constitution also says that, “Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law”. It also provides for independence in the subordinate judiciary and demands independence of the Supreme Court Judges. The constitution has guaranteed the independence of the judges of the Supreme Court in exercise of their judicial functions by making some provisions in the constitution.
The Masdar Hossain Case: initiating judicial separation
In its landmark Masdar judgment, the Appellate Division addressed head-on certain concerns regarding executive control over the judiciary. It reaffirmed the principle of independence of the judiciary, and elaborated on the constitutional position and practice regarding separation of the judiciary from the executive. This decision originated in a constitutional challenge brought before the High Court by 218 persons in judicial service, including Masdar Hossain. The High Court Division held in favour of Hossain and the other judges, and after the Government appealed this decision and lost, the Appellate Division affirmed the High Court’s judgment. In this judgment, the Appellate Division affirmed that a separate Judicial Service should be established, distinct from the Executive and Administrative Cadres of the Bangladesh Civil Service. This case remained under active consideration by the Supreme Court and after several hearings over many years, finally the separation of judiciary occurred in November 2007.
Independence Judiciary in Bangladesh: How Far the Dream!
Separation of judiciary from the executive and judicial independence appeared to have become an endless process. The debate started in the late 18th century and continued till November 2007. On 1st November 2007, Bangladesh’s government gave up its executive control over the judiciary, ending a practice that dates back to British rule over the Indian subcontinent. The move to free up the courts from politics is a key element of sweeping reforms being put in place by the country’s emergency government, which has pledged to root out corruption once and for all before new elections next year.
The higher judiciary could not perform its solemn duties unless its independence is guaranteed and protected. As underlined in the UN document and in a number of authoritative instruments of global or regional relevance, the “formal requirements” of independence of the Judiciary, be it Higher or lower, include constitutional endorsement of its financial, functional and institutional independence, safeguards against partisan and improper judicial appointments, security of the Judges’ tenure, their adequate remuneration and suitable conditions of service and prohibition against post-retirement recruitment.
The obstacles available to prevent the implementation of independent judiciary
The common reasons for not having a free and independent judiciary are given below:
1. Unawareness of the citizens: the people are not aware of the judiciary system. They don’t have minimum knowledge about the benefits of independent judiciary.
2. Lack of Political Support: 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. Since the political parties (both government and opposition) are against the implementation of independent judiciary in existent, it has become extremely difficult to implement the initiatives in this path.
3. Lack of Strong Civil Society: Civil society nowadays plays a very important role for any positive change to form of a country. As the civil society of Bangladesh is not very strong, they also failed in implementation if independent judicial in practice.
5. Domination of the Executive: According to Article 115 of our constitution, “Appointments of persons to offices 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”. As the President does not require consulting with the Chief Justice in this case, he/she can appoint those who have same political affiliation.
6. Corrupted lawmakers: The air of separation of judiciary has already entered; side by side it has also brought bad smell. Maximum judges and lawmakers are corrupted. They take bribe spontaneously and make the case diverted. It is a very common phenomenon in our country. As the independent judiciary is vested upon the dishonest lawmakers, there have been disorders in law and order situation of Bangladesh.
Political Influence in Judiciary
It is mentioned before that the political parties are not supportive to the independent judiciary. The Executive organ of our government is always dominant to the Judiciary. Asif Nazrul (2010), a professor of Law, in Dhaka University shows different reasons behind this situation. According to him,” Whereas in India and Pakistan, the decision to increase number of judges in the Higher Judiciary is a matter of parliamentary scrutiny and informed debate, in Bangladesh in the name of President it is the Law Ministry which decides whether and if so how many new judges would be recruited”. As the Law Minister is from the party which is in power, the appointment of the judges is not fare at all.
The shortlist that is sent to the President is given by Law Ministry. It can give or use only those information that are suitable for them, or their own political parties, which again causes a flaw in the judiciary.
At the end Nazrul (2010) mentions, “There is no legal obligation for i) confirming services of judges after their two years experiences as additional judge or ii) elevating senior most judges to the Appellate Division or iii) appointing the most senior judge as the Chief Justice. The conventions in latter two areas cannot be said to be firmly established to ensure that political expediency does not dominate.”
Another reason that can also be considered for the interference of the political parties in appointing judges is the Care Taker Government System. Though this Government system has been omitted by the fifteenth amendment the political parties had immense interest in the higher judiciary as the Chief Advisor of the Caretaker Government used to head by the Chief Justice. If the Chief Justice is not neutral a specific political party takes benefit from it. This also put a question in the independence of the Judiciary.
From the above discussion, some recommendations for removing the judicial problems and ensuring proper implementation of the judicial independence in Bangladesh can be made.
1. Political interference is a major impediment to the proper justice. If the judiciary can be separated from political interference then we can expect proper justice if judiciary works independently. There is hardly a little chance for case to be biased in case of independent judiciary.
2. The citizenryand 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).
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 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
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. At the national level, the Registrar’s Office in the Supreme Court will be studied and reorganized along functional lines. Institutions such as the existing Judicial Council should be studied and other administrative reorganizations may be recommended and implemented.
In this assignment the status of independence of the judiciary in Bangladesh has been analyzed. How did the judiciary finally separate from the executive? After separation of the judiciary, what is the status of executive interference over judiciary in Bangladesh has also been evaluated here. It has been found that from time immemorial the judicial system of Bangladesh was not completely independent from the interference of the executive branch of the government. Presently, even after separation of the judiciary, the interference of the executive over the judiciary is still continuing. At present, after 40 years of liberation it is more important to put the theories of separate judiciary in action for the betterment of the nation.
- Constitution of the People’s Republic of Bangladesh. Accessed 7 June, 2012. <http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf>
- Hasan, M. Independence of the Judiciary of Bangladesh. Accessed 9 June, 2012 http://www.scribd.com/masud_hasan_5/d/58667179-Independence-of-the-Judiciary-of-Bangladesh
- Hossain ,Justice K, Independence of judiciary, page 90
- Hossain, S. & Alam, T. Separation of the Judiciary from the Executive in Bangladesh. 2006. Accessed 8 June, 2012 available from <http://www.undp.org.bd/library/policypapers/separation%20of%20judiciary%20paper_revised271106.pdf>
- Masdar Hossain Case, Supreme Court Bar Association. Accessed 1 June, 2012http://www.bangladeshsupremecourtbar.com/Masdar_Hossain_Case.php
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- Nazrul, A. Independence of the Higher Judiciary. February 2010. Accessed 8 June, 2012 available from http://www.thedailystar.net/suppliments/2010/02/ds19/segment3/Judiciary.html
- Selim, S.I., Executive control over the judiciary, separation and judicial independence in Bangladesh: An overview. March 2012. Accessed 9 June, 2012 available from <http://rualf.blogspot.com/2012/03/executive-control-over-judiciary.html>