Judicial independence of all judicial officers is unconditional according to the Constitution of Bangladesh Critically analyze
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. In Bangladesh the Judicial norms and practice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary. In November 2007, Bangladesh has successfully separated the Judiciary from the Executive but several black laws still influence the rulers in creating Special Tribunals in using several black laws including the Special Powers Act. Though recently the Government has been separated, appointment of high court judges with political interference has kept the separation in pen and pencil.
Conceptual Analysis
Judicial independence is the principal that the judiciary should be politically insulated from the legislative and executive power as prescribed under Article 14 of the International Covenant on Civil and Political Rights<href=”#_ftn1″ name=”_ftnref1″ title=””>[1].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 the 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 is 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
i. 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;
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;
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 judiciary
The concept of separation of judiciary from the executive refers to situation in which the judicial branch of government acts as its own body free from any intervention and influence from the other branches of government particularly the executive. For example in Bangladesh the president in consultation with the Supreme Court according to the constitution, appoints judicial officers. Executive abuse of this constitution order results in biased appointment of judges, favoring individuals who support the governing political party. Dr. kamalhossain, a respected senior advocate of Supreme Court, explains the concept of judiciary through the idea of double standards. An executive officer follows plans, which are of vertical nature and thus the higher officers guide the decision of lower officers.
Judicial independence in Bangladesh constitution
Part VI deals with the judiciary. Article 7 provides that all powers in the republic shall be affective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps or limit of his powers is, a necessity, on the judiciary.
Article 116 A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the supreme court of judges. Article 116 A while requiring judicial independence was part of the detrimental change to the constitution made in 1974 and 1975 states that all person employed in the judicial service and all magistrate shall be independent in their exercise in their judicial functions.
Separation of judiciary in the Constitution
The judicial independence of all judicial officers is unconditional according to the Constitution of Bangladesh. 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. 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.
The Problems and Obstruction of Separation of Judiciary from the Executive in Bangladesh
The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. I have point out here some common problems.
i. Lack of Consciousness: 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.
ii. Lack of Political Will: Any kind of meaningful changed, political will is mandatory because our democratic state deals by various political parties, and government formed by citizen’s mandate with their representatives.
iii. 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.
iv. 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.
v. Lack of Democratic Culture: We have reached upon 41st years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have setup a democratic government. But we have so far made little progress in practicing parliamentary culture.
vi. Executive Dominated Judiciary: 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. The President cannot exercise his powers whatever, without the advice of the Prime Minister, accept of course his power to appoint the Prime Minister. Their appointments, postings, transfers, promotions, punishments etc. are at the hands of the President.
vii. 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.
viii. Overlapping Competencies: Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary.
ix. Corrupted lawmakers: The air of separation of judiciary is entering; side by side it has also bad smell. Maximum judges and lawmakers are corrupted. They take bribe spontaneously and make the case diverted. While some traces of this practice dates back to the previous regimes, it has become a very common phenomenon and aggravated in recent days<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]. So if the independent judiciary is vested upon the dishonest lawmakers, there must be disorders in law and order situation of Bangladesh.
x. Hatred among Political Parties: 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. The 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. Of late the highest judiciary has reportedly been politicized.
Current scenario
Many of the above formal factors of independence of Higher Judiciary are adequately reflected in the constitution of Bangladesh and little or no deviation from them has so far been experienced in practice.
For example: the status of the Higher Judiciary and its financial independence has always been respected in all the regimes after the restoration of democracy in Bangladesh in 1991. The job of the higher judiciary judges are secured here, they are immune from “punishment transfer” because of the unitary structure of the Higher Judiciary and their termination could in no way be dictated by the executive. They are not accountable to anyone except to a body comprising the most senior three judges and there is almost no scope for breaking seniority, rewarding with promotion or making any variation in salary or amenities once they are confirmed as a high court judge.
A careful observation would however reveal that it is particularly the post-creation, appointment and confirmation in Higher Judiciary where the law and practice in Bangladesh are weak and inadequate in ensuring independence there.
i. First: 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. The executive control over the whole process is exercised in order partly to outnumber the judges appointed by the previous government. For example: the previous BNP-led Alliance government in their 5 years term had appointed 45 judges which were more than the number of existing judges at the time of their assumption in power in 2001. Likewise, although 17 new judges were appointed or reappointed during the first year of the present Awami League regime, they have already announced a decision of appointing 50 new judges soon.
ii. Second: In the absence of constitutional obligation of the president to consult with the Chief Justice in appointing other judges of the Supreme Court, “conventional” consultation is limited to the list of candidates chosen by the executives. In comparison, Article 124 of the Constitution of India categorically asks the President to engage in prior consultation with the Chief Justice of India in making appointments in the higher judiciary. The second judge’s case judgment of 1994 ruled that the CJI must take into account the views of the two senior most judges of the Supreme Court to ensure that the opinion is not merely his own individual opinion but is in fact the collective opinion of a body of men at the apex level in the judiciary.
iii. Third: Bangladesh Constitution has omitted to specify the qualifications needed for appointment of judges. Article 95 only mentions the “disqualifications” i.e. nobody would be considered for appointment unless s/he is a citizen and an advocate of the Supreme Court or judges in the subordinate court for at least ten years.
iv. Fourth: 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.
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.
i. 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.
ii. 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.
iii. In Bangladesh with immediate technical assistance for carrying out the directives of the Masdar Hossain judgment.
iv. The appointment of Judges of the Supreme Court, currently done by the President, is susceptible to external influences in a a selection process that is nontransparent.
Conclusion
At the end, it should be pointed out that Independence of Judiciary is a constant struggle for many part of the world. In the sub-continent, counties even like India which has stronger and longer democracy are still learning from its inadequacies in ensuring judicial independence. Bangladesh lacks more in legal framework as well as in practice in establishing such independence
Bibliography
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8. International Covenant on Civil and Political RightsAdopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force March 1976, in accordance with Article 49.
9. Rahman, 2000; Hadley; 2004
10. Halim, 1998; pg-299 (Halim, Md Abdul 1998. Constitution constitutional law and politics: Bangladesh Perspective, Dhaka)
11. Bari, 1993, 2: Rahman, 2000
12. Rahman, 2000, Section 147
13. Constitution of the People’s Republic of Bangladesh, Article 7.
14. Constitution of the People’s Republic of Bangladesh, Article 116 A.
15. Ibid at Article 94(4)..
16. Ibid at Article 115.
17. Dr. Kamal, 2004, 5th March.
18. http://www.youthmedia.eu/media/116429-bangladesh-where-the-judiciary-can-be-an-obstacle-to-justice.
19. Rahman, M. Z. (2005). “Separation of Judiciary from the Executive”, Monthly Current Affairs, January, 2005. Dhaka: Professors Publishers Ltd. Retrieved on june 12,2012
20. http://www.youthmedia.eu/media/116429-bangladesh-where-the-judiciary-can-be-an-obstacle-to-justice
21. Holiday International (April 02, 2010). “A free and fair war crime tribunal in Bangladesh.” Available online at: http://www.weeklyholiday.net/2010/020410/com.html, Accessed on April 02, 2010
<href=”#_ftnref1″ name=”_ftn1″ title=””>[1] International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force March 1976, in accordance with Article 49.
<href=”#_ftnref2″ name=”_ftn2″ title=””>[2] Halim, 1998; pg-299 (Halim, Md Abdul 1998. Constitution constitutional law and politics: Bangladesh Perspective, Dhaka)
<href=”#_ftnref3″ name=”_ftn3″ title=””>[3] Rahman, 2000, Section 147
<href=”#_ftnref4″ name=”_ftn4″ title=””>[4] Ibid at Article 115.
<href=”#_ftnref5″ name=”_ftn5″ title=””>[5] http://www.youthmedia.eu/media/116429-bangladesh-where-the-judiciary-can-be-an-obstacle-to-justice.
<href=”#_ftnref6″ name=”_ftn6″ title=””>[6] Rahman, M. Z. (2005). “Separation of Judiciary from the Executive”, Monthly Current Affairs, January, 2005. Dhaka: Professors Publishers Ltd. Retrieved on 12/06/2012
<href=”#_ftnref7″ name=”_ftn7″ title=””>[7] http://www.youthmedia.eu/media/116429-bangladesh-where-the-judiciary-can-be-an-obstacle-to-justice