“Political interference is a major impediment to the administration of proper justice”- Discuss in reference to the appointment of High Court Judges in Bangladesh.
Recently in the 15th amendment, the judiciary has been separated but the appointment of high court judges has been made by the interference of the government, which keeps a question of effectiveness or only a paper work. 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. The dysfunction of judiciary impacts more severely than that of any other institution as tire moves from the mind of people the sense of attachment with the society. In Bangladesh the judicial norms and practice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary.
Bangladesh’s Constitution came into force on December 16, 1972, the first anniversary of the country’s independence. It contains fairly stringent safeguards for then dependence of the judiciary in Article 95 (Appointment of Judges), Article 96(Removal of Judges), and Article 99 (Prohibition on Further Employment of Judges), although the formal separation of powers is not emphatically articulated. Over the years, its safeguards for judicial independence, rather than being strengthened and consolidated, have been diluted through a number of constitutional amendments.
Separation of the judiciary has been argued both as a cause and a guardian off formal judicial independence (Hadley, 2004). The concept of separation of the judiciary from the executive
Refers to a situation in which the judicial branch of government acts assist own body frees from intervention and influences from the other branches of government particularly the executive. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive). For example, in Bangladesh the president in consultation with the Supreme Court according to the constitution appoints judicial officers other circumstances include functional aspects of the judicial system when the administration of justice is in some way, affected by executive orders or actions –.Executive abuse of this constitutional order result in biased appointment of judges, an do there officers of the judicial cadre, favoring individuals who support the governing political party. Dr. Kamal Hossain, a respected advocate of the Supreme Court, explains the concept of separation of the judiciary through the idea of double standards. An executive officer follows plans, which are of a vertical nature, with the higher offices guiding the decisions of the lower officers, who look for the best possible ways to further the plans established by those higher in the pecking order. Executive decisions are made in lines of policy; law is not a policy.
Complete separation is relatively unheard or outside of theory, meaning no judiciary is completely severed from the administrative and legislative bodies are because this reduces the potency of checks and balances and creates inefficient communication between organs of the state. A high degree of separation, however, can be a strong guardian of judicial independence, as this paper will attempt to prove .The constitution of Bangladesh is the first defense of judicial independence, presiding over all the “Republic’s affairs and framing the organization and administration of the government. While constitutional flows exist, regarding separation of the judiciary, there are adequate provisions for formal judicial independence.
Separation of power:
French great political philosopher Baron Montesquieu is the founder of the doctrine of separation of power. He stressed the concept in the following manner: “When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty. Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man or the same body whether of the nobles or the people, were to exercise those three powers that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes
Separation of Judiciary:
Recently in the 15th amendment, the judiciary has been separated but the appointment of high court judges has been made by the interference of the government, which keeps a question of effectiveness or only a paper work. The term separation of judiciary means the judicial organ of the government shall be free from interruption of the any organ of the government. It does not mean the judiciary has no relation with other organ of the government like Executive and Legislative. It means the judiciary shall do its function as per law of the country not to by any other means. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, and pressures, threats of interferences, direct of indirect, from any quarter or for any reason. The basis of the separation of Judiciary is contained in 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
The Problems and Obstruction of Separation of Judiciary from the Executive in Bangladesh:
· Lack of Political Will: Any kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. And formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate he judiciary from the executive it would be impossible. Though most of the political parties have commitment to separation of judiciary but after formation of government they technically avoid the matters. That’s why the process of separation of judiciary is going on endlessly.
· Lack of democratic culture: We have reached upon 34th years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have set up a democratic government. But we have so far made little progress in practicing parliamentary culture. Our leadership instead of guiding the nation toward setting up a parliamentary democracy has so long been engaged in the politics of mutual hatred and vengeance. Tolerance and respect for opposition party is now foreign in our politics. Such intolerance and enmity between political parties have adversely affected the nation as a whole a virtually has di vided 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 but has created groupings among public servants in general and bureaucrats in particular.
· Judiciary dominated by the policy makers: 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. It is noticeable in this article that the President with exercising this power is not required to consult the Chief Justice of Bangladesh. We know that the President cannot exercise his powers whatever, without the advice of the Prime Minister, accept of course his power to appoint the Prime Minister. This is how the executive organ of our state is controlling the judiciary. Their appointments, postings, transfers, promotions, punishments etc. are at the hands of the President or for that matter, the government.
· Corrupted lawmakers: The air of separation of judiciary is entering; side-by-side it has also bad smell. Maximum judges and lawmakers are corrupted. The takes bribe spontaneously and make the case diverted. It is a very common phenomenon in our country. So if the independent judiciary is vested upon the dishonest lawmakers, there must be disorders in law and order situation of Bangladesh.
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.
· Political interference is a major impediment to the proper justice. If the judiciary’s separated, cases can be dealt without political interference. We cannot expect proper justice if judiciary does not work independently. There is hardly a little for case to be biased in case of independent judiciary. So from this point of view separation of judiciary is necessary. The 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, creating parameters of accountability, and ensuring other necessary pre-conditions for an ordered and predictable society (ADB, 2003).
· In Bangladesh with immediate technical assistance for carrying out the directives of the Masdar Hossain judgment, particular knowledge of how the function al separation of powers is initiated and implemented in other countries should be seriously considered. The creation of judicial service commission (JSC) implies a drastic expansion of administrative responsibilities for the Supreme Court, a burden that it is currently ill suited and to shoulder (ADB, 2003). The rudimentary technical c competence of the administration of the Supreme Court is an area of concern, and courts in general are in need of more technical assistance.
· 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 Divisionism another aspect requiring attention. The courts themselves must encourage ordinary citizens to seek justice through their chambers. At present, lower court sure mistrusted and the judiciary in general, if it is to be effective, must encourage and support citizens’ access to justice.
· Improvements in court administration must be made at both the national and the District levels. Administrative reorganization is vital at this time in order to put in the future the judiciary may be expected to perform aloof those necessary functions, which are now being performed by the Executive. At the national level, the Registrar’s Office in the Supreme Court will be studied and reorganized along functional lines, i.e. case management, planning budgeting and financial management, general administration, human resources, and research. Institutions such as the existing Judicial Council will be studied and other administrative reorganizations may be recommended and implemented.
Independence of judiciary is a sin qua non of rule of law having an intrinsic relation between them. But independence of judiciary is neither possible nor desirable without effective separation of judiciary. So, effective initiative should be taken to ensure an independent judiciary to ensure rule of law in Bangladesh. Because dish functioning of judiciary impacts more severely than that of any other institution to establish rule of law in a state. Although separation of judiciary has lanced in 2007 in Bangladesh but it has not attained the hope of people due to theoretical problem in separation itself by various inconsistent legislations. Therefore, the judicial norms and practice have been derogating for years in Bangladesh. As a result recently a number of challenges and problems have mounted surrounding to the judiciary after separation in 2007. If these problems and challenges are not solved, judiciary will never be independent to establish rule of law in Bangladesh
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