Independent judiciary is the base of a democratic Government, and separation of judiciary is the precondition of a sound independent judiciary-illustrate
INTRODUCTION
The People’s Republic of Bangladesh is a democratic country. There are three main organs of a democratic government. These are legislative, executive and judiciary. The legislative will legislate; executive will execute the law and the judiciary to apply the law to individuals. The separation of powers, a very important theory given by Montesquieu, a French philosopher, is a model for the governance of a state. Montesquieu in his book “The Spirit of Laws” has written about the separation of power which was published in 1748. 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. According to this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. Mainly the division of branches is into an executive, a legislature, and a judiciary.
The independence of judiciary is very much important for a democratic country to run the country very smoothly because it will ensure the separation of power. Independence of judiciary indicates a fair and neutral judicial system of a country, where a judiciary can afford to take its decisions without any interference of executive or legislative branch of government. Independence of judiciary 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 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 the government mainly the executive.
BACKGROUND
The separation of judiciary from executive, effective from 1st November, 2007, is a positive step towards for fair trial in Bangladesh. This was a historical event in the history of Bangladesh. But there is a difference between separation and independent. Since the judicial body is no longer under the executive, the executive body can not influence judiciary and a new post is introduced in the government service in judiciary by the name of judicial magistrate who will work under the judicial body. Fair trail of judiciary is very important to establish the rule of law properly in a democratic country. Fair trail 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 of the judges. The separation of judiciary ventilates all the facilities as Masdar Hossain indicated in his case. But it does not absolutely indicate that the judge is able to act without any pressure. Internal independence of a judge is essential for fair trial which means the independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judge or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues.
APPOINTMENT OF JUDGES
According to the article 95(1) of the Constitution provides that the judges of the Supreme Court will be appointed by the President of the country. While the constitutional provision was amended in 1975 to remove the explicit requirement that the Chief Justice of the Supreme Court of Bangladesh be consulted as part of the process of appointing judges, successive Governments have continued to comply with the convention of consultation with the Chief Justice. This convention was finally discarded.
The judges were appointed by the Supreme Judicial Commission as it was done during the tenure of the last Caretaker Government (2007-2009). In 2008 the Supreme Judicial Commission Ordinance, 2008 was promulgated and a 9 members Supreme Judicial Commission headed by the Chief Justice was formed to appointment of judges. The Ordinance became ineffective as it was not placed before the present Parliament within the 90 days of time. The political government does not continue this system due to an unseen wish of influencing the judiciary.
In article 95 (2) of the Constitution provides the eligibility criteria for Supreme Court judges: a person has to be the citizen of Bangladesh and either a Supreme Court advocate having at least ten years standing or a judicial officer who has held judicial office for a period of not less than ten years. Although article 95 (2) (c) states that the Parliament can determine other qualifications for judges, so far no law has prescribed such criteria.
BIASNESS
Nepotism is one of the most important obstacles for natural justice or fairness. In some cases the judges are under pressure and are influenced by family members, friends. Since emotion is a pillar of human, as a human being a judge cannot deny this natural theory. The personal benefit is another path to infringe natural justice and fairness. It was also held in R v. Gough that ‘by bias is meant that the official or member might unfairly regard with favor or disfavor the case of a party to an issue under consideration. The causes of bias may be divided into three:
(a) Personal bias
(b) Systematic bias and
(c) Other bias.
Personal bias:
Personal bias is mainly the personal factors of the official. It includes personal feelings, personal interest, or personal connection to the matter through the members of the family or friends. This could be related to the financial or emotional matter. There are other reasons for personal bias, such as, the judges may have a relation with the company which case he is deciding because he may be the stock holder of the company. All these factors create bias either in favor of, or against, the party and will operate as a disqualification for a person to act as a judge.
Systemic Bias:
The second category of bias is often referred to as systemic bias. By systemic bias are those inclinations and predispositions which each person has, not because of a personal interest or a deliberately adopted attitude, but as a result of belonging to a social class or coming from a certain kind of background or working within a particular organizational context. The idea is that, if a person comes from any political view or any kind of family political background then the person will have a chance to be bias. Systematic bias goes beyond such notions of background and experience; it may also be the product of organizations and of the attitudes which develop within them. There might be sufficient traces of systemic bias in the actions or judgments of an official for the law to act in that case; but systemic bias is by its very nature so ingrained in social and cognitive understandings that it can be only removed by critical changes in the system itself.
Other bias:
There are some others bias also. There might be other such cases like misinterpretation by pleader, misguidance by officials etc.
JUDICIAL BIAS IN BANGLADESH
The separation of the judiciary from the executive is the precondition of a clear and independent judiciary. Only separation does not mean complete independence of the judiciary. Independence of judiciary is the precondition of natural justice and fairness. In a word, natural justice and fairness clearly indicates that a judge must be neutral and it is the court’s duty to give reasonable opportunity to hear the individual, mainly the accused. The components are not fixed but are flexible and variable, and their scope and applicability differ from fact to fact.
In reality, the independence of the judiciary is still very far from us because of the political appointment of the judges in the judiciary. According to the constitution the President of the Peoples Republic of Bangladesh will be appointed the Supreme Court judges. Though the President is a non political person according to the constitution but the appointment of the president is political now days in Bangladeshi culture. Every government of these days is appointing a political person as President. That is why the non political post of the President is not playing a good role without the political influence. The political influence in the appointment of all the non political post is making all the system questionable to all the people all over the country. For this reason, now days many people are raising question against the decision of the judges and this arise question against the separation and independence of the judiciary. A very recent example of this is not giving the bail to the political leaders of the opposition parties for a case related to the political event strike. This indicates the strong political influence in the judiciary to take illegal benefits. Though many countries in south Asia have strong separate and independent judiciary but in Bangladesh still there are huge political influences. In India, there is separate judicial service commission for the appointment of judges. The political government cannot influence the decision of judges with the influence of the executive due to strong independent judiciary. We can also look at the example of the very recent decision of the supreme court of the Pakistan about the prime minister of the country. All those indicate the strong and independent judiciary in many countries but huge political influence in Bangladesh due to the bad political practice.
A very important element of judicial process is that the judge has to be impartial and neutral and to be in a position to apply his mind objectively to the dispute before him. In the consequence of Bangladesh, the allegation of bias and impartiality against the Judge of the Supreme Court of Bangladesh was closely related to the gaining of personal interest or profits. This culture mainly develops by the political influence in the appointment of the judges though the honorable position are totally non political. The judiciary of Bangladesh is used by the political government to achieve the benefit from the judiciary though the judiciary is separate from the executive body. A lot of arguments easily can be shown in favor of such allegations that do not deserve any consideration. A judge should act impartially in making a decision, is often said to be one of the most elementary requirements of fair treatment. M. Bayles points out, the repugnance felt towards biased decision-maker is widely reflected in constitutions, international conventional and administrative law codes.[1] The political appointment and the political pressure make the decision of the judges’ bias which is a very bad signal for a democratic country.
PRESENT CONDITION OF APPOINTMENT OF JUDGES
Appointment of judges is very important to ensure the natural justice but the procedure for appointment of judges without partiality is not yet ensured in Bangladesh. Article 95 (1) of the Constitution of the People’s Republic of Bangladesh specifies that the Chief Justice shall be appointed by the President. On the other hand, article 48 (1) of our constitution discloses that ‘there shall be a President of Bangladesh who shall be elected by members of parliament in accordance with law’.[2] This means the President will be elected by the majority vote of the parliament members. Parliament members are nominated and elected by particular banner of political party. So, according to our constitution, President will be elected by a political party. Though President elected by a particular political party, President Will in turn appoint those as judge of the apex court who are loyal to such political party. Though, as per article 48 (3) due to appointment of chief justice pursuant to clause (1) of article 95, the President shall act independently without the advice of the Prime minister. But reality is different in the practical field of appointment. Not only the Chief Justice but also the judges of the Supreme Court of Bangladesh are selected by the president, which is susceptible to external influences in a selection process that is nontransparent.
CONCLUSION
Separation of judiciary was the only slogan in our society before the separation of judiciary but after the separation the political influence is hampering the independence of the judiciary. Due to this political influence, judicial body is separated from the executive but still it does not ensure the fairness of judiciary at all. The proper independence of judiciary is by no means possible without functional or decisional independence, financial independence and independence of judges from their judicial superiors and colleagues. Without the independence of judiciary a judge might become corrupt which eventually might result into havoc for the judiciary. Uprooting the bias from judiciary is an endless process, but this debate from the late 18th century till today is enough to eradicate bias. Mainly the political influence in the judiciary is keeping the separation of judiciary in pen and paper. Only a proper judiciary can ensure human rights as well as fundamental rights as granted by the constitution of the People’s Republic of Bangladesh. In order to bring back trust to judiciary, all the political parties should be loyal to the law and respect the law properly. If all the political parties cannot come to a decision that they will never influence any constitutional institution special the judiciary the real democracy of Bangladesh will never be stable and the separation of judiciary will be in pen and paper only.
REFERENCES:
Article 95(1) , Constitution of Bangladesh.
Article 95(2)(a), Constitution of Bangladesh.
Article 95(2)(b), Constitution of Bangladesh.
ADB. 2003. Judicial Independence Overview and Country-level Summaries.
Asian Development Bank. Retrieved January 10, 2005, Retrieved from
http://www.adb.org/Documents/Events/2003/RETA5987/Final_overview_Report_pdf
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Alam, M. Shah. 2004. Addition ro legal literature. Retrieved from: http://www.thedailystar.net/law/2004/10/01/book.htm
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Asian Affairs, Vol. 29, No. 4 :47-60, October-December, 2007
Bari, M. Ershadul. 1993. the Dhaka University Studies. Part. F,1V;1:2.
Bayles, procedural justice, ch. 2
D.A. Wood, Legal Ethics and Legal Practice: Contemporary Issues, Oxford-1995
Halim, M.A. 1998. Constitution, Constitutional Law and Politics: Bangladesh
Perspective. Dhaka: Rico printers.
Institute of Governance Studies (2009). Institutions of Accountability: The Judiciary. Background Paper, Dhaka: BRAC University.
Masder Hossain case, (as known as separation of judiciary case) 52 DLR 82.
What is the Theory of Separation of Powers means, preservearticles, [online],
Retrived from http://www.preservearticles.com/2011091313304/what-is-the-theory-of- separation-of-powers-means.html [Accessed: 18 June, 2012]
[1] Bayles, procedural justice, ch. 2
[2] Asian Affairs, Vol. 29, No. 4 :47-60, October-December, 2007