Judicial System in Bangladesh to appoint Judges of the High Court Division is the focal point of debate
Separation of judiciary is the foundation of rule of law, good governance and democratic practice all over the world. It protects minority from the majority, the poor from the rich, the weak from the powerful and even the citizens from excesses of government.The concept of separation of judiciary from executives refers to a condition in which the judicial branch of the government acts like its own body and is free from interferences and intervention from executive and legislature. But the result of separation of judiciary is hampered because of appointment of High Court Judges with political interferences. As High Court Judges are politically appointed, they are biased. So, the mass people are not able to get the benefit of separation of judiciary. So, government should try to set up an unbiased judiciary system where the High Court Judges will be free from political interferences.
Separation of Judiciary
Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence. It is generally accepted that every democratic state has three totally separate organs to do three different functions. These three organs are:
- Legislature: Enact the laws, to make the laws.
- Executive: Enforce the laws.
- Judiciary: Adjudicate the cases.
Judiciary is the guardian of constitution as well as rights of citizen in a state to protect under legal framework. Judiciary is the last hope and aspiration to restore the rights of citizen in a country. But judiciary cannot restore the rights of citizen unless it is free from interference of other organs and political parties. Where there is no effective separation of judiciary, the independence of judiciary cannot exist. Separation of judiciary means the judicial organ of the government will be free from interference of any other organ. It is not necessary that judiciary will have no relation with Executive and Legislative. Separation of judiciary means the judiciary shall do its function as per law of the country not to by any other means. Separation of judiciary has been argued both as a cause and guardian of formal judicial independence. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body.
Reason behind Separation of Judiciary
The constitution of Bangladesh has also given importance on separation of judiciary. The functions of the different organs are clearly distributed in the constitution. According to article (22), the state shall ensure the separation of the judiciary from the executive organs of the state. The judiciary functions are mentioned in the article (95-117). The judiciary is the arm of the government and it sets and declares the constitutional limits of the legislature and the executive. The judiciary keeps watch over the Constitution. Judiciary stands between the individual and the state to ensure rule of law. Judiciary acts as a custodian and bastion of liberty and ensures the dignity of each individual in the state. Judiciary is regarded as the guardian of the Constitution as it is rightfully regarded as the citadel of justice. The judiciary interprets law, settle legal disputes and enforce popular rights. The judge’s courts and the trial procedures are together called the judiciary that ensures that the laws are adhered to by the government and people of the state.From time immemorial the demand for separation of judiciary and judicial independence was a much-debated issue among policy reformers, democratic thinkers and legal practitioners in Bangladesh.
Separation of Judiciary in the Constitution
According to the constitution of Bangladesh, the judicial independence of all judicial officers is unconditional. Through the separation of judiciary from other organs this ideal is protected. Article 22 states: The state shall ensure the separation of judiciary from the executive organ of the state. Article 95 (1)states the method of appointment for the Supreme Court: the President shall appoint The Chief Justice and other judges. Article 115 and 116 state the appointment and control of judges in the subordinate judiciary. The President controls (he power of posting, promotion, grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions in consultation with the Supreme Court.Article 115 provides a direct, primary and plenary power of the president to make rules with regard to appointments of persons to offices in the judicial service or as magistrates exercising judicial functions.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.
Implementation of Separation of Judiciary
Since the Appellate Division pronounced the judgment in 1999, the successive governments took 23 adjournments to implement the judgment on various pleas up to February 2006. During these seven years time, the government took very slow steps towards the way of separation of judiciary.The interim caretaker government (2006-2008) headed by Mr. Fakruddin Ahmed adopted a very positive and firm outlook with the determination to separate the judiciary from the executive from the very beginning of his time. The judiciary became independent of the executive from Nov 1, 2007 with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending with the magistrate courts. 218 magistrates, 202 from the judiciary and 16 from the administrative cadre service would start running the judicial magistracy. The remaining 453 magistrates will be recruited in three months by the Judicial Service Commission. In fact the government took initiatives based on the constitutional principles and 12 point directives issued by the Appellate Division on December 2, 1999 in its landmark judgment in the government appeal against the High court verdict in Mr. Masdar Hossain’s case.
Judicial Bias in Bangladesh
An important element of judicial system is that the judge has to be neutral and impartial as well to apply his mind objectivity to the dispute before him. However, in the context of Bangladesh, the allegation of bias and impartiality against the Honorable judge of the Supreme Court of Bangladesh was closely related to personal gain, interest or profit. Dispute regarding such allegation of bias needs a clear description of the cause of biasness. But there are lots of arguments in favor of such allegation. A judge should act impartially while making decision. A judge is said to be one of the most elementary requirements of fair treatment. Indeed the rule against bias stands with the hearing rule as one of the twin pillars of the common law concept of procedural fairness. And as M. Bayles points out, the repugnance felt towards biased decision-maker is widely reflected in constitutions, international conventional and administrative law codes.
Selection Criteria for Judges
Article 95 (2) of the Constitution provides the eligibility criteria for Supreme Court judges: a person has to be a 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.The eligibility provision is very broad; experience refers to years of being admitted to practice at the Bar or on the bench, and not necessarily referring to handling of complex legal matters and thus allowing individuals with shallow legal experience to take on the arduous task of judgeship.
Appointment of Judges
The core principle of judicial independence refers that judges should remain free from all kinds of direct or indirect influences. Without impartial and fair selection and appointment of judges fair judgment is not possible. Therefore, appointment of judges is one of the basic elements of independence of judiciary. In Bangladesh, in terms of the eligibility criteria for appointment, judges of both Supreme Court and subordinate courts can be classified as career judges and non-career judges.<href=”#_ftn14″ name=”_ftnref14″ title=””> Public service Commission previously recruited career judges (who belong to the judicial service in Bangladesh) but after the separation of judiciary from executive Judicial Service Commission (JSC) is assigned to recruit the career judges. On the basis of job experience and senior assistant judges can be promoted to senior assistant judges followed by joint district judges, additional district judges and district judges. District judges are eligible to be appointed as Supreme Court judges.Presently, advocates of Supreme Court having professional experience for a period of not less than ten years are eligible to be appointed directly as judges of Supreme Court.
In Bangladesh three principles are followed for appointing judges in the Supreme Court: seniority, merit and quota. Among these the most practicing criteria is seniority. For example, in 2004, Justice Syed J.R.Mudassir Husain of the Appellate Division of the Supreme Court was appointed the 14th Chief Justice of Bangladesh bypassing Justices M. Ruhul Amin and Mohammad Fazlul Karim, two senior judges of the Appellate Division Similarly, in 2008 President Prof. Iazuddin Ahmed appointed Justice Mr M.M. Ruhul Amin as the 16th Chief Justice of the Supreme Court of Bangladesh by superseding Justice Mohammad Fazlul Karim, who was then the senior most amongst the Appellate Division judges. From 1991 by the Constitutional (12th Amendment) Act the President may appoint the Chief Justice but in appointing other judges of the Supreme Court, he or she is bound to act on the advice of the Prime Minister and there is no constitutional obligation to consult with the Chief Justice. So, ultimately Prime Minister as the chief executive of Bangladesh exercises the crucial role in appointing judges of Supreme Court through his/her titular president.
So, it can be realized that, there is a culture of suppression in appointing and promoting judges in the Supreme Court. The judges are appointed by political or executive choices instead of their seniority and merit in service. In order to ensure the administration of justice neutrally, fairly and fearlessly judges should have a guarantee that they will not be subject to discipline or removal because of their decisions or the exercise of arbitrary discretion of the appointing authority. As per the provisions of Bangladesh Constitution (1972) Parliament was empowered to remove judges of Supreme Court on the ground of proved misconduct or incapacity. The provision of constitution gas been changed under current system. The disciplinary action in Bangladesh is ultimately dependent on executive branch of the government where political will of the executive may play an important role while taking disciplinary action against judges.
Comparison among Judiciary of Bangladesh and Other Countries
In comparison to Bangladesh the judiciaries of other countries are more independent and they utilize the power of the judiciary in taking any kind of steps. In Pakistan the Supreme Court disqualified the Prime Minister Yousuf Raza Gilani in a stunning move likened to a “judicial coup”. “Yousuf Raza Gilani has become disqualified from being member of the parliament,” said the order read by chief justice Iftikhar Muhammad Chaudhry. “He has also ceased to be the prime minister of Pakistan with effect from the same date (April 26),” it said.. So it is clear that the Judiciary of Pakistan is more independent and efficient than Bangladesh. In Bangladesh, the judgments of the Supreme Court are always politically biased. The judges are under the Law Ministry. So they need to act on the signal of the political government for their promotion and existence as well. Recently 33 opposition leaders were sent to the jail in a general case and their bail were stopped by the government through the judiciary. 33 opposition leaders, including BNP acting secretary general Mirza Fakhrul Islam Alamgir, were sent to jail in an arson case filed on April 29 with Tejgaon Police Station. The Judiciary of Bangladesh is less strong than other countries.
1. Appointment of judges is the most important way to control judiciary by executive. So, appointment of judges should be done by the judicial commission itself. Judicial commission will uniform rules and provisions as to appointment of judges which must be effective to appoint qualified judges instead of politically biased judges.
2. Finance, the driving resource of judiciary, that is run by the executive organ though minister.
Judiciary should have autonomous financial resources allocated by the government to function more efficiently.
3. Judiciary has to depend on executive for investigation like police investigation in criminal cases. So, judiciary must have its own judiciary team.
4. Form a Supreme Judicial Commission as it was done during the last caretaker government.
5. Judges could be appointedby collegiumsof judges, as it is done in India. The collegiums would include the chief Justice and four semi-most judges of Appellate Division. The collegiums will select and submit a list of candidates to the President.
6. Establish a separate secretariat under the supervision of the Supreme Court.
7. Political governmentshould try to change their mentality regarding interference in the judicial activities.
Though the judiciary is formally separated from the executive since November 1, 2007 but the judiciary remained in a vulnerable condition. The appointment procedure of judges to the Supreme Court depended to a large extent on political adherence. Since the separation of judiciary still the interferences of executive are continuing. As a result the separation of judiciary has not met the expectation pf people in terms of independent functioning. Measures designed to insulate the judiciary from political interference have not ensured the impartiality of the institution due to its administrative independence. The proposed recommendations may help the judiciary to become an independent entity. The mass people will get the benefit of separation of judiciary if political influences are reduced by the political parties.
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