Explain the matter of “Separation of judiciary and its effect”.

 

Introduction

Judiciary is the guardian of constitution as well as rights of citizen in a state to protect under legal framework. This organ is not only confined to be an organ like executive and legislature but also something more. Judiciary is the last hope and aspiration to restore the rights of citizen in a country. But this judiciary cannot act to restore these rights unless and until it is free from any undue influence and interference of any other organ. Therefore, it is an obvious need that the judiciary should be separated in truest sense to perform its functions independently which is the main object of the judiciary. But mere separation is not enough to perform its function effectively. And where there is no effective separation of judiciary, there is no independent judiciary and where there is no independent judiciary, there is no rule of law. Because, there is an intrinsic relation between independent judiciary and rule of law.  Furthermore, Rule of law and democracy are interrelated. That is why democracy can not exist where there is no rule of law, And there is no rule of law where there is no independent judiciary. This study is to show the intrinsic relation between judiciary and rule of law as well as the necessity of independent and separate judiciary to survive democracy in the perspective of Bangladesh.

Separation of Judiciary:

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. And there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. Moreover, the concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive. Dr. Kamal Hossain, a respected advocate of Bangladesh 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. Judges or magistrates performing judicial functions must examine what evidence is given and find a way to best apply it to the law; there is less room for an individual’s perceptions in judicial decisions.

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 constitution of Bangladesh vests the executive power in the executive and the legislative power in parliament.

 

Independence of Judiciary:

The meaning of the independence of the judiciary is still not clear after years of its existence. Our constitution by the way of the provisions just talks of the separation  of the judiciary but it is no where defined what actually is the independence of the judiciary. The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature. The other meaning of the judicial independence can be found out by looking at the writings of the scholars who have researched on the topic. Scholars define judiciary by talking about the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor. So the independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms a part of the judiciary.  Shoetree defines independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges. The concept of judicial independence comprises following four meanings:

  • Substantive Independence: it refers to as functional or decisional independence of judges to arrive at their decisions.
  • Personal Independence: that means judges are not dependent on government in any way in which government may influence upon them in reaching at decisions.
  • Collective Independence: the meaning of that is institutional, administrative and financial independence of judiciary as a whole and independence from legislative and executive; and
  • Internal Independence: that means independence from their superiors and colleagues.

The rule of law:

 Rule of law is a legal term that suggests that governmental decisions be made by applying known legal principlesthe phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A.V.Dicey. The concept was familiar to ancient philosophers such as Arostotle, who wrote “Law should govern”. Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by natural rights. Despite wide use by politicians, judges and academics, the rule of law has been described as “an exceedingly elusive notion “giving rise to a “rampant divergence of understandings … everyone is for it but have contrasting convictions about what it is.At least two principal conceptions of the rule of law can be identified: a formalist or “thin” and a substantive or “thick” definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. The basic concept of rule of law contains three principles as opined by A.V. Dicey.They are-

  1. Supremacy of law.
  2. Equality before law.
  3. Predominance of legal spirit.

 The concept of rule of law is not static rather dynamic. Now rule of law implies a wide meaning then that of traditional concept due to the growth of human rights as global sphere. According to the Delhi declaration rule of law requires four essentials. They are-

  • Law passed by democratically elected government after adequate debate and discussion.
  • Law shall be consistent not only to the content but also to the context of international human rights concept.
  • A separate and independent judiciary for fair trial and ensuring justice.
  • Rule should ensure a minimum standard of life of that community.

Impact of separation of judiciary on the coordinating role:

Before separation of judiciary, among subordinate criminal courts, in magistrate courts judicial function was conducted by the District Magistrate and his subordinate Executive Magistrates. This functioning has been practiced by him from 1787. He was worked as court of first instance and appeals were heard by Court of Sessions. He had power to hear appeals in some cases (Section 144,145 of CRPC). Before separation of Judiciary, there were three types of magistrate courts. Those were First Class Magistrate, Second Class Magistrate, and Third Class Magistrate. These magistrates were appointed from executive organ of the state. District Magistrate was the First Class Magistrates. Executive Magistrate had power to take cognizance of offence, issue warrant of arrest, power to grant bail, try cases, to pass sentence of imprisonment maximum up to five years and also power to impose fine, to record confession, to order for detention, etc. Now a District magistrate has lost these powers and a result drastic change has been brought in the power structure of Deputy Commissioner after separation of judiciary.
For effectively playing the role of coordinator in law and order mentioned above, the Deputy Commissioner needs the active cooperation of law enforcing agency i.e. police, Border Guard Bangladesh, Ansar and also cooperation from the other departments. As before separation, police was functionally under the control of District Magistrate, mutual cooperation scenario between police and executive Magistrates was also good. Before separation police force was connected with District Magistracy for functioning of the judicial process. Now police are not functionally connected with District Magistracy through court proceeding. Therefore District Magistrate has lost actual control over police. Moreover after separation of judiciary, Police Magistracy meeting which was held at Office of the Deputy Commissioner is now being held at Office of the Chief Judicial Magistrate in Sessions Judges court. Therefore there may be some coordination gap between police and Executive Magistrate. Moreover, scope of informal communication between police and Executive Magistrate seems to be narrow after separation of judiciary.

Recommendation:

  • Appointment of judges is the most important way to control judiciary by executive. Therefore it is recommended that the appointment of judges, both in higher and subordinate judiciary should be by the judicial commission itself. Judicial commission will uniform rules and provisions as to appointment of judges which must be of transparent and effective to appoint qualified judges. Because, some times unqualified persons are appointed as judges by undue influence or on political consideration.
  • Finance is a driving resource of judiciary. But it is controlled by executive organ through minister. Therefore, Judiciary should have autonomous financial source allocated by the government which will be adequate financial support to perform its functions properly.
  • Undue influence from executive is a common barrier in delivering judgment by judges. Therefore it is crying necessity to have more safe protection for judicial officers as well as Judiciary should not be dictated by any undue influence from executive organ.
  • Judiciary has to depend on executive for investigation of dispute. Some extent it is in all control of executive. For example, police investigation in criminal case which is exclusively in the hand of police. Therefore, Judiciary must have its own investigation team.
  • Application and interpretation of law are under the exclusive jurisdiction of judges. They can interpret it in narrow sense or wide sense. If judges are black letter judges, they only apply narrow interpretation. Judges who apply wide interpretation are called judicial activist. Judiciary needs judicial activist judges to ensure rule of law. Because only judicial activist judges dare to write against illegal phenomenon of executive. And judicial activist judges can never have unless and until there is independent judiciary. Facility should be provided to the Judges in applying pragmatic approach rather than to be black letter judges.

Conclusion:

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 disfunctioning 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

Bibliography

 attachments. (n.d.). Retrieved June 18, 2012, from mppg-nsu.org: mppg-nsu.org/attachments/339_Sahela%20Thesis.pdf

intradoc. (n.d.). Retrieved June 18, 2012, from unpan1.un.org: unpan1.un.org/intradoc/groups/public/…/apcity/unpan020065.pdf

Judiciary_Policy. (n.d.). Retrieved June 18, 2012, from www.igs-bracu.ac.bd: www.igs-bracu.ac.bd/UserFiles/File/…/Judiciary_Policy_Note.pdf

 

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