Light on the Judicial structure, appointment of Judges, judicial ethics, Political Interference and the Independence of the Judiciary
Introduction
Independence of judiciary means a fair and neutral judicial system of a country, Judiciary is one of the three branches of Government. Judiciary deals with interpretations of countries laws, legal conflicts, and punishment for violations of any law of that country. Judiciary also provides mechanism of the resolution of disputes. Judiciary also known as judicial system and it is composed with judges and courts. Normally it is separated from the legislative body of that nation. It is mainly due to resolving disputes between citizens as well as between citizens and government. To get fair justice an independence judicial system is very important. Judicial system should be non-political and non-influential by anyone. Judicial system provides legal security the common people. The judicial administration consists of the independent courts of law, prosecution service, enforcement authorities, who see to the enforcement of judgments, The Criminal Sanctions Agency, who sees to the enforcement of custodial sentences, and Bar Association and the other avenues of legal aid.
Judiciary Structure of Bangladesh
In Bangladesh judiciary system composed of these division.
1) Supreme Court
The Supreme Court of Bangladesh was instituted under the constitution of the People’s Republic of Bangladesh in accordance with the provision in Article-94 (Article-111 of the constitution of the People’s Republic of Bangladesh). The Supreme Court shall consist of the Chief Justice, is known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.
2) Appellate Court
Under article-103 of the Constitution appeal to the Appellate Division from the judgment, the main function of Appellate Division is to discharge appeal case charged against the verdict of High Court Division. The decision of Appellate Division is final and all the citizens of Bangladesh are bound to obey its decision. The source of jurisdiction of the Appellate Division is two: the constitution and the ordinary law. However, an ordinary law can give the Appellate Division only appellate jurisdiction as stated in Article 103(4) of the constitution.
3) High Court Division
According to Article-101 of the constitution of the People’s Republic of Bangladesh the High Court Division shall have original and appellate jurisdiction and such other jurisdiction as may be authorized by law.
Separation of Judiciary System in Bangladesh
Bangladesh became one of the largest independent states in 1971 before that it was part of British and Indian colonial. So a strong influences of British law found in the Bangladesh legal system. The basis of the separation of article 22 (Part II, Fundamental principles of state Policy) of our constitution, which states that the state shall ensure separation of the judiciary from the executive. Interim Chief Advisor Fakhruddin Ahmed declared the official separation of the judiciary from the executive. Courts and the judges would now be able to establish the rule of law away from the interference of ministers. By handing over the power to nominate judges and magistrates of the Supreme Court, it is massively reducing the ability of politicians to influence the legal system. The article 22 of Bangladesh constitution utter that, the State shell ensures the separation of judiciary from the executive organ of the state. However, as this article is not mandatory to execute by the government, government does not execute this article. Moreover, by the constitutional amendment, lawmaker of our country reduces the independence of the judicial system. Besides this, the structure of the judicial system allows the executive branch of our country to influence the judicial system.
Process of Recruitment of Judges in Bangladesh
The Judges of the High Court Division are appointed considering at least 10 years of experience as lawyer in High Court Division. The appointment is done by the Chief Justice through consultation with the President.
(1) The Chief Justice and other Judges shall be appointed by the President.
(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and-
(a) Has, for not less than ten years, been a advocate of the Supreme Court; or
(b) Has, for not less than ten years, judicial office in the territory of Bangladesh; or
(c) Has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.
(3) “Supreme Court” includes ‘a Court which at any time before the commencement of the Second Proclamation (Tenth Amendment) Order, 1977, exercised jurisdiction as a High Court or Supreme Court in the territory now forming part of Bangladesh.
*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 shell be made by the President in accordance with rules made by him in that behalf.”
* The judiciary becomes independent of the executive form Nov 1, 2007with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending with the magistrate courts.
*Since the appointment of judges of the Supreme Court is largely dependent on the whims and fantasies of the executive branch of the government, inevitably, this system of appointment has been abused for the last decade by appointing partisan individuals as high court judges without paying heed to important considerations like that of legal acumen, integrity, and competence.
* The most popular system for selection of judges around the world seems to be an independent commission for judicial appointments. Throughout common law and civil systems alike the use of commissions is increasingly explored as a solution to the difficult problem of achieving a balance between independence and accountability in judicial selection.
Judicial and judges Ethics:
A Judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should be faithful to and maintain professional competence in the law. A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings. A judge should avoid public comment on the merits of a pending or impending court case. A judge should be patient, dignified, respectful, and courteous to litigants. Most importantly a judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective[1].
Problems and Obstacles of Separation Judiciary from Executive in Bangladesh
There are many problems and obstacles faced for separating the judiciary branch from the Executive branches main problems are given below:
* Lack of Consciousness
* Lack of Political Will
* Lack of Interaction with Other Courts
* Lack of Strong Civil Society
* Lack of Democratic Culture
* Executive Dominated Judiciary
* Overlapping Competencies
* Corrupted lawmakers
* Government Negligence
Advantages of Separate Judiciary
In order to get rule of law in the country separate and independent judiciary system is very important. It also ensures that impartial and consistent law for everyone in the state no matter who is in power, and without influence of proper judgment. The doctrine of the “separation of power” is made for not influence and balance of power between Executive, Legislative and Judiciary branches of the government. Judicial independence ensures that democracy and all the basic rights of the citizens are promoted efficiently. Judiciary has been defined as the last resort of the common people. Independence of judiciary is 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 sense of justice without submitting to any kind of pressure or influence be it from the executive or legislative or from the parties themselves or from the superiors and colleagues. One of the major advantages of separate and independent judiciary system is that citizens will get proper judgment and democracy of that nations are done accordingly. The constitution is the supreme law of Bangladesh and has been spelled out in the constitutions it be a republic. So, to make people right a fair and impartial judicial system is very important for Bangladesh.
Influences of Political Interferences in Judgments
In Bangladesh, generally President is elected by the ruling government and he or she makes decision in consultation with the Prime Minister. At the same time President, sometimes-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” appointments by the party in power. A controversy was occurred just for a political appointment was done by the previous government appoint a High Court judge who was convicted to manipulate his LLB transcript. For this consequence, the judicial system lost its credibility at that time[2]. According to the act and article 35(3) in our constitution every person has the right of independent and impartial judgment. Responsible for 80 percent of criminal cases, it is the magistrates who usually decide if the accused is to be granted bail or prosecuted and typically has the power jail and individual for up to seven years. The most 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 that his posting, promotion and prospect depends on his pleasing the executive head, he will generally tries not give any judgment against his boss though he knows that second party is not getting the impartial judgment. It has very bad impact on the mind of common people they may think they will not proper justice. 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.
Current Scenario of Appointment of Judges and Political Influences
The government recently appointed 17 lawyers including the two reportedly controversial lawyers, Advocate Ruhul Quddus Babu and Advocate Khasruzzaman, as additional judges of the HC. This appointment is questionable to many people. A Justice of the High Court Division had behaved in a way that may attract the Prime Minister’s sight for being appointed as Justice of the Appellate Division of the Supreme Court. So, influence of appointment of judges arises many question, how independence is our judicial system. Is it just on pen or paper or fair implementation will take on future that is the biggest things to be consider.
Recommendations
Political interference is a major impediment to the proper justice. Though judiciary system is separated from the executive branch, Government of Republic of Bangladesh must have to ensure that stays independent in any situation. If judiciary system does not work independently, There is hardly a little chance for case to be biased in case of independent judiciary.
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 courts themselves must encourage ordinary citizens to seek justice through their chambers. Lower Courts division must have to be more efficient and active to solve the case of general citizen.
Improvements in court administration must be made at both the national and the District levels.
Conclusions
If the judicial edifice weakens, then democratic system will not function, and social fabric will be broken down. So, here all the people concerned with judiciary have to play active and effective role from honest point of view. Then the independence of judiciary will bring effective fruits in future.
Reference
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