JUDICIARY MUST BE FREE FROM INFLUENCE OF LEGISLATIVE AND EXECUTIVE ORGANS: BANGLADESH
Bangladesh is a democratic country. In a democratic country there are three main organs i.e
1. Legislative
2. Executive and
3. Judiciary.
The legislature legislate legislation, executive execute the law and the function of judiciary is to apply the laws over the individuals. As the fields of these three organs are unique, they should be free from one other’s influence. Now it should discuss independence of judiciary, influence of legislative and executive on judicial system and its impact and importance of separation of judicial system and judicial independence in Bangladesh constitution.
Independence of Judiciary:
The meaning of the word ‘independence’ according to dictionary is ‘not subject to control of any person, country, free to act as one pleases; autonomous, not affected by other. 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 hammer 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)
Independence of judiciary truly means that the judges are in a position to make justice accordance with their promise of office and only in accordance with their own sense of justice without submitting to any kind of pressure of influence from executive or legislative or from the parties themselves or from the superiors and colleagues.
1. Akkas, Sarkar Ali, Independence and Accountability of Judiciary
2. Ali, S.A.M.M. 2004, whether separation of judiciary
3. Alam, M. Shah. 2004. Addition to legal literature
The concept of independence of judiciary has two aspects:
1. Functional independence of judiciary and
2. Structural independence of judiciary.
1. Functional Independence of Judiciary: Functional independence of judiciary means the freedom of individual judges or judiciary to decide the issues before it. The judiciary shall decide matters before them. Impartially on the basis of fact and accordance with law, without any restrictions, improper influences, pressure, threats or interferences, direct or indirect, from any quarter or for any reason. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide within its competence as defined by law. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. Beside this the court must be impartial and competent.
2. Structural Independence of the Judiciary: Structural independence of judiciary denotes mainly the autonomy of the judiciary or it is free from other organ of the state so that all probable interference can be exclusive. “It is the duty of each member of state to provide adequate resources to enable the judiciary to perform its function properly.” It is the duty of the state to provide adequate financial resources to allow for due administration of justice. In this way, judicial independence means freedom from direction, control or interference in the exercise of judicial power by the either the executive or legislature. Independent judiciary is backbone of the democratic state. In the beginning of the development of the concept, functional independence of the judiciary was regarded as sufficient requisite. 4. Bari, H.M. Fazlul, 2004. Separation of judiciary 5. Halim. M.A. 1998. Constitution, Constructional Law and Politics But in modern era both structural and functional independence are equally important for the independence of the judiciary. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate numeration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it.
Influence of legislature: A legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The laws created by a legislature are called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise taxes and adopt the budget and other money bills. Legislatures are known by many names, the most common being parliament and congress. 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 shall be made by the President in accordance with rules made by him in that behalf”. It is important to mention that this 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 President after consulting with the appropriate public service Commission and Supreme court. 6. Hadley, Seird, 2004. Separation of Judiciary and Judicial Independence 7. Hossain Zakir, The Constitution and Judicial independence, The Daily Star, November 21, 2004 To control and discipline the subordinate court, the article 116 says, “The control and discipline the persons employed in the judicial service and magistrates exercising judicial function shall vest in the President and shall be exercise by him in consultation of Supreme Court.” However, 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 in the original article 116. 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 the judiciary.
Influence of Executive: In many countries executive is referred to mean simply as the government. But in Bangladesh it means the party which has the majority in the parliament runs the government and parliament members elects the President. The execute runs the country. It includes the Prime Minister, the Minister of Crown, members of the parliament, the civil service, local authorities, police and armed forces. In Bangladesh, the judiciary is consists of two divisions:
1. The Supreme Court and
2. 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. In Bangladesh, the lower judiciary is also consists of two parts. Then there are also the courts of Magistrates, the judges of the District Courts are under the jurisdiction 8. Hoque M.S. Judicial Transgression,The Bangladesh Observer, March 23,2004 9. Justice Ahmed, Naimuddin. 2004. Independence of Judiciary 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 discussion, we can understand that government has a huge influence to appoint and control the promotion and other disciplinary subject of the judges, especially on the Magistrates.
Impact of influence by legislature and executive on the judicial system: In Bangladesh, President is elected by the rolling government. The President takes any decision by doing consultation with the Prime Minister. Sometimes the President in consultation with the chief justice appoints the judges of the Supreme Court. 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 appointment was done by the previous government appoint a high court judge who was convicted to manipulate his LLB transcripts. For this consequence, the judicial system lost its credibility at that time. Every person has the right of independent and impartial judgment. Responsible of 80 percent of criminal cases, it the Magistrate who usually decides if the accused is to be granted bail or prosecuted has the power to jail an individual for up to seven years. The 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 his posting, promotion and prospect depends on his capability of making his executive head pleased, he will try not to give any judgment against his boss though he knows the second party is not getting impartial judgment. This type of inequality in justice also has a bad impact on economy. Article 22(23) demands the separation of judiciary from executive. The Deputy Commissioner has both judicial and executive 10. Justice Hossain Kamaluddin, Independence of Judiciary in Bangladesh law and practice 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.
Importance of separation of judiciary: From the above discussion, we can say that separation of judiciary is truly important in a democratic country. The idea if ‘separation of judiciary’ is referred to a situation in which the judicial branch of government acts as its own bodies free from intervention and influences from the other branches of Government particularly the executive. The separation of the judiciary basically aims at ensuring independence of the judiciary. Once the judiciary becomes institutionally and functionally independent. It is expected to be more effective in protecting citizens’ rights and ensuring the rule of law. An independent judiciary is expected to work impartially and not under any influence of ministers, parliament members, political leaders, media or any powerful person or association. Independent and competent judiciary is very necessary for the protection of civil liberties in the democratic state. Judicial functions are always subject to public scouting. The primary beneficiary of judicial independence is not the judiciary itself but the society at large the structural and functional independence of the judiciary has unique importance. “The constitution guarantees the three basic principles of the modern concept of constitution alism-justice, liberty and equality in addition to attempting to establish a framework for the achievement of economic prosperity and national unity. For achieving the objectives, various organs of the state and specialized agencies are created by the constitution to work towards them one of which is the judiciary. 11. Mollah, Md. Awal Hossain. Seperation of Judiciary in Bangladesh 12. Nazrul,Asif. Deciphering independence of judiciary 13. Rahman, S.M. Matiur. 2004. The Problems of Separation of Judiciary from the Executive In many ways, the judiciary is the main institution on which the responsibility of a free government rests.” Without justice being free fully and impartially administrated, therefore, neither individuals nor rights, nor could the property of any person be protected.” The doctrine of separation of power which was pronounced by Moresque, insists on the exercise of the power of the government by three separate organs- executive, legislature and judiciary. An independent judiciary plays a vital role to check the power of executive and legislature. Only the independent judiciary can protect the rights of the minorities and the indigenous community. Independent judiciary maintains the Supremacy of the constitution. Independent judiciary helps to ensure rule of law in the country and protects the country from entering into anarchy. It is universally accepted that without an independent judiciary safe gourd of the right of the people is impossible. “ The judiciary plays an important role in the transitional justice initiatives such as reconciliation, rehabilitation, reconstruction and in ensuring respect for human rights, combating impunity, building sense of confidence in the rule of law enhancing effectiveness of the state institution.” In most cases, judicial independence and separation of judiciary is executed by giving judges long tenures, making them not easily removable, ensuring that their leave, promotion, transfer and other condition of service are adequately secured by law and reinterring that decisions of those matters are not influenced by political or any other unjustifiable interests.
Basic Components of Independent Judiciary: There are different models of judiciary in the world that no any country can say its judiciary is perfect. There are some basic norms which are accepted by the international community through conferences, workshops etc. They are accepted as basic components of independent judicial which are selection, transfer, tenure, salary and privileges security of office, process of removal etc. If these components are fully 14. Rahman,Khan Ferdousour. Independence of judiciary 15. Rahman Syed Sadiqur, Controversy should be over, the independent, Juty 29, 2003 incorporated in national law, judiciary will certainly be more independent. An independent judiciary requires the following basic minimum:
1.Adequate constitutional and legal provision to insulate judges from illegal pressures and influences from non judicial authorities
2.Adequate physical infrastructure for discharge of judicial function
3.Well educated and well trained judges
4.Well trained and competent court staff
5.Secured and adequate resources for court administration and
6.Proper mechanism for disciplining judges and ensuring their accountability
7.An independent judicial service commission.
8.Independence of Magistrate from the control of the executive.
9.Implement of all the article of constitution related to the independence of judiciary.
10.Willingness of the Politian regarding amendment of constitution which can hamper the impendence of judiciary.
11.Amendment of constitutional articles which are against the independence of judiciary.
Conclusion: Judiciary is one of the most important organs in any country. The independence of the judiciary is the cornerstone of a democratic system. Without independent judiciary, people cannot get justice. Only the independent, impartial and accountable judiciary can protect the rights of the minorities. Independent judiciary can maintain the delicate balance among the three major organs of the state. Some of internationally recognized have been incorporated in our present constitution. But basic principle i.e. judicial autonomy, freedom of expression and association, professional immunity are not incorporated. In a modern society it must reflect the fundamental principle of state policy as well as universal value and ethics of international human rights regime, which are not fundamentally altered by cultural or class differences. In order to meet the challenges of the next century and to accomplish constitutional goal, to secure equal justice in economic, social and political life it is very important to extend judicial mind and the due process in all spheres of administrative dealings with the affairs of man and society. We hope the members of constituent assembly will consider all the standards regarding independence of judiciary and try to empower judiciary according to the international standards. Greater political will is needed for enchantment of judicial independence.
Bibliography:
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11.Justice Hossain Kamaluddin, Independence of Judiciary in Bangladesh law and practice
12.Mollah, Md. Awal Hossain. Seperation of Judiciary in Bangladesh Retrieved from: http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan020065.pdf
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15.Rahman,Khan Ferdousour. Independence of judiciary: A dream comes true.Retrieved from:http://www.thedailystar.net/law/2007/03/04/opinion.htm”>http://www.thedailystar.net/law/2007/03/04/opinion.htm
16.Rahman Syed Sadiqur, Controversy should be over, the independent, Juty 29, 2003