Separation of judiciary from executive
Prologue
Judiciary is the last resort for obtaining redress of one’s grievances. It must be able to act as an institution without fear or favour. It has to be able to respond independently. This will only be possible if there is separation of the Judiciary from the Executive in the truest sense of the term.
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 weakness however lies in the fact that Article 22 itself is not judicially enforceable in a court of law according to provisions contained in Article 8 (2) of the Constitution.
Another basis for separation of judiciary is “Masder Hossain Case” It may be recalled that a Subordinate Judge Mr. Masdar Hossain along with several other Judges of the Subordinate Judiciary initiated this course of action through the filing of a writ in the High Court Division in this regard.
The case drew special attention as the ‘Masdar Hossain case’ and became the basis and the focal point for all later legal initiatives on this issue. The subsequent consideration of this complex matter also included questions of interpretation of Article 27 (equality before law) and Article 29 (equality of opportunity in public employment) of the Constitution. These aspects were included as the plaintiffs felt that their fundamental rights as judicial officials have been violated through contentious directives issued by the Ministry of Finance.
Their petition also highlighted that service of the republic meant any service, post or office, whether in a civil or military capacity, in respect of the Government of Bangladesh. In this context, Article 152 of the Constitution was also referred to. It was also argued, most interestingly, that this Article should not apply to persons in judicial service as judicial service means a service comprising of persons holding judicial posts not being posts superior to that of a District Judge.
Such an approach in more ways than one was controversial to say the least. The Plaintiffs further bolstered their arguments by referring to Part VI of the Constitution and Articles 94 to 117 of the Constitution (specifically highlighting the elements contained in Articles 114 to 116 A regarding the Subordinate Judiciary). Reference was also made to Articles 61 to 63 of Part IV of Chapter IV of the Constitution through which Defence Services were considered as a separate service.
The High Court accepted the plea of the petitioners and allowed the petition. This was in 1999. The government appealed against this High Court decision. It took several years for the matter to be eventually resolved through a decision by the Appellate Division in favour of the independence and separation of the Judiciary. The highest court of the country issued clear directives that the Judicial Service, though a service of the Republic, was completely separate and distinct in character. It was also clarified that the control of the Judicial Service should be guided by rules framed according to Article 115 and not rules under Article 133 or 136 of the Constitution. It was also clarified that the Services Act, 1975 and the Civil Service Recruitment Rules, 1981 would not apply with regard to the Judges.
The Appellate Bench also decided that all necessary steps be taken by the government to ensure effective separation consistent with Article 115 of the Constitution. The government was also directed to (a) make Rules/Laws/Orders under Article 133 pertaining to posting, promotion, leave, discipline (except suspension and removal), pay, allowance, pensions and other terms and conditions and that these should be consistent with the spirit of Articles 116 and 116A; (b) establish a Judicial Pay Commission to review the pay, allowances and other privileges of those in the Judicial Service; (c) secure security of tenure, security of salary and other benefits for those in the Judicial Service. It was also made clear that institutional independence from the Parliament and the Executive had to be ensured through Rules/Orders to be framed under Article 133 of the Constitution; (d) extend all benefits of service to the members of the Judicial Service like the other cadres and (e) establish a Judicial Service Commission and a Judicial Pay Commission to make necessary service laws that would be applicable only for the members of the Judiciary.
In this context, the government was also ordered to take immediate necessary steps that would include (a) the formation of Bangladesh Judicial Service distinct from the BCS (Judicial) and (b) the formation of a Judicial Service Commission headed by an Appellate Division Judge. It was also underlined that this Commission would be responsible for the appointment of Judges to the lower Judiciary without any influence of partisan political interests.
The first step has now been taken towards the establishment of a truly independent and separate judiciary. However, there are still several obstacles that will have to be overcome. As already reflected, there is the obduracy of the Executive branch. Necessary measures will have to be taken to ensure that there is participatory engagement from all branches of governance. This will have to be undertaken carefully. At the same time there must not be hesitation or a feeling of compromise. All the good work will then be undone.
The government, particularly the Ministry of Law, the Ministry of Home Affairs, the Establishment Division, the Cabinet Division and the officials of the Supreme Court will have to meaningfully cooperate with each other so that framing of laws pertaining to the Bangladesh Judicial Service can be streamlined. The Ministry of public works will also have to assist through the creation of necessary infrastructure. This will be specifically required with regard to administrative measures such as — constitution, recruitment, suspension, dismissal, removal, posting, promotion, leave, control, discipline and other related service conditions. We have had preliminary efforts pertaining to amendment of the Code of the Criminal Procedure, 1898. These will also need to be completed satisfactorily. At this point, I would like to express my support for the idea of establishing a separate secretariat for the Judiciary. This will certainly facilitate the many tasks that will have to be addressed in the coming months.
We will have many contentious issues that will arise during the process of implementation. However, that should not delay the process. Determination and flexibility should be the guiding actors.
The new matrix will apparently be initiated through the presence of 201 Judicial Magistrates. According to the amended Code of Criminal Procedure 1898 the cases pending with the courts of the District Magistrate or Additional District Magistrate will be transferred to the court of the Sessions Judge of the district, and the cases pending with the court of the Executive Magistrate will be transferred to the Chief Judicial Magistrate of the district. The Sessions Judge and the Chief Judicial Magistrate will dispose of the cases transferred to them or transfer them to the court of Additional Sessions Judges or Judicial Magistrates, respectively.
We are entering a new era. What we will have is a tentative arrangement that will need the support and cooperation of every branch of government. It is up to us to ensure that this separation does not become a token gesture. This measure contains real promise. It has to be supported not because it has been decided and sanctioned by the highest Court but because it contains the possibility of people being able to realize their legal and human rights according to the due process of law.
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 it removes 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.
CHAPTER-02
Separation of powers
Founder of the Doctrine of Separation of Powers is French Enlightenment political philosopher Montesquieu. The concept of Separation of Judiciary is comes from the doctrine of Separation of powers. Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary 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.” Montesquieu’s view is that the three organs of the state i ;e executive, legislative and judiciary will perform their function separately and independently and specially judiciary must perform its function independently without any interference of other two organs. Because Montesquieu did specify that the independence of the judiciary has to be real, and not apparent merely. The judiciary was generally seen as the most important of powers, independent and unchecked, and also considered the least dangerous. The separation of powers, also known as trias politica, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.
The opposite of separation of powers is the fusion of powers, often a feature of parliamentary democracies. In this form, the executive, which often consists of a president and cabinet (“government”), is drawn from the legislature (parliament). This is the principle of responsible government. Although the legislative and executive branches are connected in parliamentary systems, there is often an independent judiciary. Also, the government’s role in the parliament does not give them unlimited legislative influence.
CHAPTER-03
Meaning of Separation of Judiciary
The word separation of judiciary means, the judicial organ of the government shall 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 e.g. 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. At present Judiciary of the most of the countries ensures free from another organ of the government. 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. 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.
Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence. 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. 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, and other 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. 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.
Complete separation is relatively unheard or outside of theory, meaning no judiciary is completely severed from the administrative and legislative bodies 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.
Why need Separation?
The Judiciary acts as an arm of government and not as an opposition to the Legislature or the Executive but it has to be bold enough to set and declare the constitutional limits of the Legislature and the Executive. The Judiciary keeps watch and ward over the Constitution, rigid or flexible, written or unwritten. Judiciary stands between the State and the individual to supervise a regime of the Rule of Law and not the rule of men. Judiciary exists to ensure and act as a custodian and bastion of liberty and stands for the dignity of the individual –the guardian of the Constitution as it is rightfully described as the citadel of Justice. A state primarily comprised of three organs the executive, the judiciary and the legislature. The executive refers to the government administration which includes the political party in power. The executive is responsible for policy making and upholding public interest as they come to power through a popular mandate. The legislature refers to parliament which is responsible for making laws. The Judges courts and the trial procedures are together called the judiciary, which ensures that the laws are adhered to by the government and citizens of the state.
Reason behind delay for Separation of Judiciary
The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. So far many erudite articles written by highly intellectual persons of the relevant fields were published in the leading newspapers of our country. But those intellectual exercises have gone unheeded so far. There were of course commitments of the political parties every time before the elections were held (Rahman, 2004). We must seek the reasons why this very important organ of the state has so far not been given the shape as enunciated in the sacred constitution where the nation has solemnly affirmed for an independent judicial system. I have point out here some common problems.
1. Lack of Consciousness: Of the total people constituting the electorate of our country, I am sure more than 10% voters do not know what actually is mean by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions we should have at least an average knowledge of our present judicial system. Lack of consciousness people’s have no strong movement for this reasonable and demandful wants.
2. Lack of Political Will: Any kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. And Government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate the 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.
3. Lack of Interaction with Other Courts: Lack of interaction of the judges in Bangladesh with their counterparts in other countries is a possible factor for their insular understanding of law. Of course, the courts’ scarce resources limit the opportunities for such interaction. And, the very limited judicial interaction with foreign courts, when it does occur is arranged in hierarchical order. This means that older judges, who are usually less amenable to fresh ideas and have less time left on the bench, undertake such interactions most often, receiving the most limited results possible (ADB, 2003).
4. Lack of Strong Civil Society: Civil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.
5. 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 strong 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 and virtually has divided 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. Of late the highest judiciary has reportedly been politicized (Rahman, 2004).
6. Executive Dominated Judiciary: Article 115 of the constitution: 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, except 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.
7. Lack of Popular Access to Justice: Unlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh. The very wide powers of the highest court to deliver justice have been under-utilized. Less than a dozen-suomoto case during the last ten years have succeeded, perhaps reflecting judicial conservatism.
8. Overlapping Competencies: Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary. Generally ministries do not have legal officers of their own, and the public prosecution service is an adhoc arrangement. Arguably, judicial independence is compromised when a person acts as both a prosecutor and a judge. Law officers have to defend government positions while judges might rule against the government. A directive of the Masdar Hossain Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this directive has not been carried out.
9. 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. Recently Transparency International of Bangladesh (TIB) exposed the corruption of the lawmakers.
10. Government Negligence: The High Court Division of the Supreme Court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But the government has so long remained headless and negligent to the High Court Division’s directives. When the government itself does not honor the highest court of the country, how can the people in general confide in the judicial system and such underhand practice?
CHAPTER-04
Separation of the Judiciary in the Constitution of the Peoples Republic of Bangladesh
The judicial independence of all judicial officers is unconditional according to the constitution of Bangladesh. This ideal is protected primarily through the concept of separation of the judiciary from the other organs of government. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 and 116 stating respectively: Appointment of persons to offices in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.
It is principally through the above articles that the executive branch has been able to gradually intrude upon and influence the judiciary in Bangladesh, creating enormous problems regarding the quality of jurisdiction and the extent of judicial independence.
Judicial Independence in the Constitution
Part VI of the constitution deals with the judiciary. Art. 7 provides that all powers in the Republic shall be effective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps the limit of his power is, a necessity, on the judiciary. Art. 35(3) of the constitution provide “Every person accused of a criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by he law. Article 116A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975 discussed later in the paper: Subject to the provisions of the constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions
CHAPTER-05
A Brief History of Separation of Judiciary
•British Period
During the British rule there was a demand for separation of judiciary from the executive. The British administration did not take any concrete steps aiming at separation of judiciary, as there was apprehension that it might go against their colonial interest. In 1919, the matter of separation of judiciary was raised in the House of Commons but it was not discussed on the contention that it was a matter within the jurisdiction of provincial government. In 1921, a resolution regarding separation of judiciary was passed in the Bengal Legislative Assembly which was followed by formation of a committee. The committee reported that there was no practical problem in separation. However, nothing more was done during the British rule.
•Pakistan Period
After independence of Pakistan in 1947, the first Constitution in independent Pakistan was adopted in 1956. Unlike the Government of India Act 1935 (Ss 253, 254, 255 and 256) and the Constitution of India (Art.233 to 237) Pakistan Constitution of 1956 did not include any provision regarding `subordinate courts’ or `magistracy’; these were regulated by the Code of Civil procedure and the Code of Criminal Procedure and thus had been under substantial executive control. In 1957, the East Pakistan Provincial Assembly passed the Code of Criminal Procedure (East Pakistan Amendment) Act 1957 (Act no 36) with a view to separating the judicial and executive functions of the magistrates. In 1958 the Pakistan Law Commission recommended to bring the judicial magistrates under the control of the High court. In 1967 the Law Commission again recommended to give effect to the Cr. P. C Amendment Act 1957. However, it was never given effect during the whole of Pakistan Period.
•Bangladesh Period
In 1972, after independence of Bangladesh the Constitution of the Peoples’ Republic of Bangladesh was adopted. Provision was made in Article 22 as a Fundamental Principles of State Policy that the state shall ensure the separation of the judiciary from the executive organs of the state. This was not merely a fundamental principle of state policy which was devised as not to be judicially enforceable, rather it meant more than that. In fact, the insertion of Article 22 was to ensure reflection of the spirit of the Constitution as laid down in its Preamble as “Further pledging that it shall be a fundamental aim of the State to realize through the democratic process to socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”. Without ensuring an independent judiciary all these aspirations stipulated in the Constitution meant nothing but decorations of the Constitution. But unfortunately no constructive initiatives were taken by the successive governments to implement the directives of Article 22. In 1976, a Law Committee headed by Justice Kemaluddin Hossain recommended to implement separation of subordinate judiciary in three stages which are as follows:
First Stage: The government may by notification, appoint some particular magistrates at each station exclusively for judicial work, thus to ensure that the same person is not exercising judicial and executive function at the same time. . This can be given effect forthwith without any additional expenses or administrative difficulties.
Second Stage: There should be separation of judicial functions from executive as envisaged in the Code of Criminal Procedure ( East Pakistan Amendment) Act, 1957 (Act no.36).
Final Stage: The final stage would be not only to complete separation of judicial functions from executive but also to constitute a separate and integrated Judicial Service under the control of the High Court Division for civil and criminal work right up to the level of the District and Session Judge. The Committee also recommended that for creation of an integrated judicial service it would be necessary to enact new legislation.
In the mean time, we witnessed two extra-constitutional processes. In 1987, initiatives were taken to separate the magistracy by amending code of Criminal Procedure, 1898. For unknown reason the Bill could not placed before the Parliament. After the fall of autocratic rule in 1990, exception was high to ensure separation of judiciary. But the next two governments of 1991 & 1996 did nothing in this regard except spoiling its tenure. In 1999, the Supreme Court issued 12-point directives in famous Mazdar Hossain case to ensure separation of judiciary from the executive. The successive governments have taken time again and again to delay the process. It may be recalled that the caretaker government (2001) has all measures to ensure separation but stop at the request of AL and BNP two major parties of the country. The BNP leaded coalition government is working very slowly towards separation of judiciary. It is a pleasure that Judicial Service Commission and Judicial Pay Commission have been created various rules and amendment in the relevant sections of code of Criminal Procedures 1898 are under consideration of parliament of late the law. Just and Parliamentary Affairs Minister announced that it would take additional six years (!) to ensure separation of judiciary the Daily Star 20.6.2004 this statement is reflective of how indifferent the Government is about separation of judiciary. The demand separation of the judiciary from the executive is universal to ensure the independence of judiciary and safeguard the rights of the people. It is quite unfortunate that the Government is moving towards at shail’s pace.It may be noted that Pakistan and India have taken necessary steps for free the judiciary from the executive at all levels in 1973 and 1974 (in West Bengal in 1970) respectively. Ensuring justice and independence of judiciary will remain a far very until lower judiciary is separated from the executive. It is mandatory and constitutional obligation of the Government to ensure separation of the judiciary from the executive. Five years have been clasped since the Supreme Court gives it directives in Masdar Hossain case.
CHAPTER-06
Masdar Hossain Case and Separation of Judiciary
In 1995 Masder Hossain along with 441 judicial officers who were judges in different civil courts filed Writ Petition No. 2424. The petitioners alleged inter alia that:
1. Inclusion of judicial service in the name of BCS (Judicial) under the Bangladesh Civil Services (Re-organization) Order, 1980 is ultra vires the Constitution;
2. Subordinate Judiciary forms chapter II of the PART VI (THE JUDICIARY) of Constitution and thereby the Subordinate Judiciary has already been separated by the Constitution. Only the rules under Article 115 of the Constitution and/or enactments, if necessary, are required to be made for giving full effect to this separation of judiciary.
3. Judges of the subordinate Judiciary being the presiding judges of the courts cannot be subordinate to any tribunal and as such. the judicial officers are not subject to the jurisdiction of the Administrative Tribunal.
The matter came up for hearing on 13.06 .1996. However, because the petitions for time on behalf of the government were allowed for several times, it could not be heard ultimately before 01.04.1997. After a long hearing with valuable comments and citations by Dr. Kamal Hossain, Syed Istiaq Ahmed and Mr. Amir-Ul Islam the court delivered its historic judgment on 7th may 1997 (reported in 18 BLD 558). The Government preferred an appeal by leave (Civil Appeal No. 79/1999) and the Appellate Division partly reversed the decision of the High Court Division by its judgment delivered on 2nd December 1999 (reported in 52 DLR 82). The Appellate Division directed the Government to implement its 12 point directives, including for formation of separate Judicial Service Commission (JSC) and Judicial Service Pay Commission to separate the judiciary from the control of the executive, a long cherished desire of the people of Bangladesh.
Twelve Points of Masder Hossain Case
The 12 points directives are as follows; which was made in Masder Hossain case for the Separation of Judiciary.
(i) It is declared that the judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.
(ii) It is declared that the word “appointments” in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that behalf, make rules regulating their suspension and dismissal but Article 115 does not contain any rule-making authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the Constitution and the Services (Reorganisation and Conditions) Act, 1975 have no application to the above matters in respect of the judicial service and magistrates exercising judicial functions.
(iii) It is declared that the creation of BCS (Judicial) cadre along with other BCS executive and administrative cadres by Bangladesh Civil Service (Reorganization) Order 1980 with amendment of 1986 is ultra virus the Constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 is applicable to the judicial service.
(iv) The appellant and the other respondents to the writ petition are directed that necessary steps be taken forthwith for the President to make Rules under Article 115 to implement its provisions which is a constitutional mandate and not a mere enabling power. It is directed that the nomenclature of the judicial service shall follow language of the Constitution and shall be designated as the Judicial Service of Bangladesh or Bangladesh Judicial Service. They are further directed that either by legislation or by framing Rules under Article 115 or by executive order having the force of Rules a Judicial Services Commission be established forthwith with majority of members from the Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service on merit with the objective of achieving equality between men and women in the recruitment.
(v) It is directed that under Article 133 law or rules or executive orders having the force of Rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), pay, allowances, pension (as a matter of right, not favour) and other terms and conditions of service, consistent with Articles 116 and 116A as interpreted by us, be enacted or framed or made separately for the judicial service and magistrates exercising judicial functions keeping in view constitutional status of the said service.
(vi) The impugned orders in the writ petition dated 28. 02.94 and 2.11.95 are declared to be ultra vires of the Constitution for the reasons stated in the judgment. The appellant and the other respondents to the writ petition are directed to establish a separate judicial Pay Commission forthwith as a part of the rules to be framed under Article 115 to review the pay, allowances and other privileges of the judicial service which shall convene at stated intervals to keep the process of review a continued one. The pay etc. of the judicial service shall follow the recommendations of the Commission.
(vii) It is declared that in exercising control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the Executive..
(viii) The essential conditions of judicial independence in Article 116A, elaborated in the judgment, namely, (1) security of tenure, (2) security of salary and other benefits and pension and (3) institutional independence from the Parliament and the Executive shall be secured in the law or rules made under Article 133 or in the executive orders having the force of Rules.
(ix) It is declared that the executive government shall not require the Supreme Court of Bangladesh to seek their approval to incur any expenditure on any item from the funds allocated to the Supreme Court in the annual budgets, provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment. Necessary administrative instructions and financial delegations to ensure compliance with this direction shall be issued by the government to all concerned including the appellant and other respondents to the writ petition by 31.05.2000.
(x) It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal. The declaration of the High Court division to the opposite effect is set aside.
(xi) The declaration by the High Court Division that for separation of the Subordinate Judiciary from the executive no further constitutional amendment is necessary is set aside. If the Parliament so wishes it can amend the Constitution to make the separation more meaningful, pronounced, effective and complete.
(xii) It is declared that until the Judicial Pay Commission gives its first recommendation the salary of Judges in the judicial service will continue to be governed by status quo ante as on 8.1.94 vide paragraph 3 of the order the same date and also by the further directions of the High Court Division in respect of Assistant Judges and Senior Assistant Judges. If pay increases are affected in respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation, the members of the judicial service will get increases in pay etc. commensurate with their special status in the Constitution and in conformity with the pay etc. that they are presently receiving. [52 DLR (AD) 82]
It is mentionable that the above mentioned directions have already been implemented by the last Care-Taker Government.
Implementation of the Judgment in Masder Hossain Case
Since the judgment was pronounced by the Appellate Division in 1999, the successive governments took 23 adjournments to implement the judgment on various plea up to February, 2006.During these 7 years time, the government took very slow steps towards the way of separation of judiciary.
The last Caretaker Government from the very beginning adopted a positive and firm outlook with a determination to separate the judiciary from the executive based on the constitutional directive principles and Appellate Division’s judgment in the Masder Hossain’s Case. Accordingly 4 service rules namely (a) Bangladesh Judicial Service Commission Rules, 2007, b) Bangladesh Judicial Service (Pay Commission) Rules 2007, (c) Bangladesh Judicial Service Commission (Construction of Service, Appointments in the Service and Suspension, Removal & Dismissal from the Service) Rules, 2007 and (d) Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Discipline and other Condition of Service) Rules, 2007 have been enacted and changes were bought in the existing Code of Criminal Procedure 1898 by Ordinance No II and No. IV of 2007. This is considered to be a major change paving the way for dispensation of Criminal Justice at the level of magistracy by the officers belonging to Bangladesh Judicial Service and thereby removing all impediments in the separation of Judiciary from the executive control. Finally the historic journey of the judiciary separated from the executive started functioning from 01, November 2007.
CHAPTER-07
Present Structure of the 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 the independence 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.
At a glance the judiciary of Bangladesh consists of two divisions, the Supreme Court and the subordinate courts. The highest court in Bangladesh, the Supreme Court, is actually composed of two divisions; the Appellate Divisions and the High Court Division. The functions of the two are distinct, and separate appointments of judges are made to each. The Chief Justice of the Supreme Court sits in the Appellate Division and is the Chief Justice of Bangladesh; there is no separate Chief Justice of the High Court Division. The president, sometimes-in consultation with the Chief Justice appoints the judges of the Supreme Court. 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. The lower judiciary in Bangladesh also consists of two parts: first, there are District courts and Sessions courts, with 10-30 judges sitting in each of the country’s 61districts. Then there are also the courts of Magistrates, the Judges of the District Courts are under the jurisdiction 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. Magistrates are controlled not by the judicial branch, but by the Ministry of Establishment and by the government. Magistrate judges are typically transferred to their magisterial posts for 3-10 years during the course of their employment with the government, thereafter are reverted back to their old administrative positions. There are four different types of magistrates: magistrate of the first class, second class third class and honorary magistrates. 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 have 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 co9ntrol over the magistrates, these bonds between the executive and the judiciary are an important constitutional discrepancy that results in the deterioration of the concepts of judicial independence and rule of law.
The Subordinate Courts and Tribunals in Brief
There are a wide variety of subordinate courts and tribunals. Such courts and tribunals are the creatures of statutes. Their powers, functions and jurisdictions are also determined by the respective statutes. These are the basic courts in the system of the judiciary of Bangladesh. The major bulk of the cases, both civil and criminal, are tried and heard in such courts and tribunals. Certain tribunals are termed as administrative tribunals. Such courts and tribunals spread all over the country at the district levels. The subordinate courts in Bangladesh can be divided in two broad classes, namely, civil courts and criminal courts.
Civil Courts: The civil court system is more popularly known as the subordinate judiciary. The civil courts are created under the Civil Courts Act of 1887. The Act provides for five tiers of civil courts in a district, which bottom-up are:
i) Court of the Assistant Judge,
ii) Court of the senior Assistant Judge,
iii) Court of the Joint District Judge,
iv) Court of the Additional District Judge and v) Court of the District judge.
The first three are courts of first instances with powers, functions and jurisdictions in respect of subject matter, territory and pecuniary value determined by or under statutes. The rest two are generally courts of appeal in civil matters.
Subject to the superintendence of the high court division, district judge has administrative control over all the civil courts of the district. District judge has mainly appellate jurisdiction, but in some matters he has original jurisdiction too. Jurisdiction of the additional judge is co-extensive with that of the district judge. He/she discharges the judicial business assigned to him/her by the district judge. Appeals to the judgments, decrees and orders passed by the assistant judges and subordinate judges lie to the district judge. Similarly district judge may transfer the appeals preferred against judgments, decree or orders passed by the assistant judges to the subordinate judges for disposal. Subordinate judges have mainly unlimited civil original jurisdiction.
Civil courts while deciding any question regarding succession, inheritance, marriage or caste or any religious usage or institution apply the Muslim law in cases where the parties are Muslims, Hindu law in cases where the parties are Hindus except so far as such law has been altered or abolished by any enactment made by the legislature.
Artha Rin Adalat (Loan court) have been set up in each district under the provisions of the Artha Rin Adalat Ain 1990 by the government appointing subordinate judges as judges of such courts in consultation with the supreme court. All suits for realization of the loan of the financial institutions e.g. banks, investment corporation, house building finance corporation, leasing company etc and non-banking financial institutions constituted under the provisions of Financial Institutions Act 1993, are to be filed in the Artha Rin Adalats and such suits are exclusively triable by such courts. Artha Rin Adalat is a civil court and has all the powers of the civil court.
Deulia Adalat (Bankruptcy court) has been constituted under the Bankruptcy Act 1997. District court in each district is the Bankruptcy court of that district, and district judge is the presiding judge of that court and is authorized to deal with and dispose of bankruptcy cases arising within the district and he/she may authorize an additional (district) judge to deal with and dispose of any such case.
Criminal Courts: The Judges and Magistrates of the criminal court can exercise their power under the Code of Criminal Procedure 1898.
i) Court of Sessions Judge
ii) Additional Session Judge
iii) Joint Session Judge.
iv) Magistrate Court. Magistrate Court are divided in two categories
In Metropolitan Area:
i) Chief Metropolitan Magistrate (CMM)
ii) Additional Chief Metropolitan Magistrate (ACMM)
iii) Metropolitan Magistrate (CM)
In others Area:
i) Chief Judicial Magistrate (CJM)
ii) Additional Chief Judicial Magistrate
iii) Senior Judicial Magistrate.
iv) Judicial Magistrate: Second Class Magistrate and Third Class Magistrate
CHAPTER-08
Independence of Judiciary
The basic principles of the independence of the judiciary was endorsed by UN General Assembly in 1985 and referred by the UN Office of the High Commissioner for Human Rights as “The judiciary shall decide matters before them impartially on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason”. Separation of judiciary from the executive is the precondition for sound and independent judiciary. Judiciary redresses the grievances of the people and resolves disputes. The International Covenant on Civil and Political Rights (ICCPR), 1966 was also mentioned in Article 14(1) “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. Independence of Judiciary means a fair and neutral judicial system of a country, which can afford to take its decision without any interference of executive or legislative branch of government. Independence of Judiciary depends on some certain conditions like mode of appointment of judges, security of their tenure in the office and adequate remuneration and privileges. The general concept of Judicial Independence is that a judge should be free from any pressure from the government or any one else as to how to decide any particular case; for that reason, a judges salary is not dependent on the Executive decision and his conditions of service are secured and not to be varied at the whim of the Executives. The judiciary has been defined as the last resort of the common people. It is the sector that actually protects and harmonizes the varying interest of the members of the society. The judiciary has been the major recourse of the human rights community in the enforcement of human rights. Litigation has been identified as one of the key means of protecting and enforcing the rights of the individual. No other institution of the state is bestowed with the duty but the courts and other ancillary institutions. Most of the monumental achievements of the human rights community the world ever have been through the courts. The judiciary comprises of all institutions established there under for the administration of justice to protect, vindicate and enforce the rights of the people. The judiciary is charged with the responsibility of dispensing justice and safeguarding the rule of law. In any civilized society, judiciary is the last resort for the people to seek shelter and get relief against the offenders and wrong doers. Independence of judiciary 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 own 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. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges.
The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence:
01. Substantive Independence of the Judges: It referred to as functional or decisional independence meaning the independence of judges to arrive at their decisions without submitting to any inside or outside pressure;
02. Personal independence: That means the judges are not dependent on government in any way in which might influence them in reaching at decisions in particular cases;
03. Collective Independence: That means institutional administrative and financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative;
04. Internal Independence: That means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases.
Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it
CHAPTER-09
Laws related Separation of Judiciary and Judicial Service
Bangladesh Judicial Service Commission Rules 2007
This Ordinance was passed on 16th January 2007 by the President under Article 115 of the Constitution. Object of this Ordinance was to establish Judicial Service Commission. This Rules discuss about establishment, formation, members, rights and duties, meeting and Annual report the of Judicial Service Commission
Members of Judicial Service Commission: Section 3 of this Rule provides the structure of the Commission. This rule provides followings are the member of the Judicial Service Commission:
01. Chairman, A Judge of the Appellate Division appointed by the President consultation with Chief Justice of the Supreme Court of Bangladesh;
02. Two Judges of the High Court Division nominated by the President consultation with Chief Justice of the Supreme Court of Bangladesh;
03. Attorney General, ex offecio;
04. Member of the Law Commission nominated by the President;
05. Secretary, Ministry of Establishment, ex offecio;
06. Secretary, Finance Department, ex offecio;
07. Secretary, Ministry of Law and Parliamentary Affairs, ex offecio;
08. Dean of the Department of University of Dhaka or University of Rajshshi or University of Chittagong nominated by the President;
09. Registrar, Supreme Court of Bangladesh, ex-offecio;
10. District Judge, Dhaka, ex-offecio.
Duties of the Judicial Service Commission: Section 5 deals with responsibilities of the commission. This commission can appoint under instruction of the president.
Section 7 of this Rule provides that, The commission shall submit a report before 31th March to the President what was done by the commission in previous year.
Bangladesh Judicial Service (Pay Commission) Rules 2007
This Ordinance was passed on 16th January 2007 by the President under Article 115 of the Constitution. By this Ordinance Bangladesh Judicial Service Pay Commission was established. The object of Bangladesh Judicial Service Pay Commission is to determine salary or other benefits of the members of the judicial service. This Rules deals with formation, powers and function of the Judicial Service Pay Commission.
Section3(2) provides about the members of the Judicial Service Pay Commission as:
01. Chairman, A Judge of the Appellate Division appointed by the President consultation with Chief Justice of the Supreme Court of Bangladesh;
02. Judge of the High Court Division appointed by the President consultation with Chief Justice of the Supreme Court of Bangladesh;
03. Member of the Law Commission appointed by the President;
04. Auditor-General Bangladesh, ex offecio;
05. Secretary, Ministry of Establishment, ex offecio;
06. Secretary, Finance Department, ex offecio;
07. Secretary, Ministry of Law and Parliamentary Affairs, ex offecio;
08. Registrar, Supreme Court of Bangladesh, ex-offecio; and
09. An Officer equivalent to District Judge of Dhaka nominated by the Chief Justice.
Bangladesh Judicial Service (Constitution of Service, Appointment to the Service, and Suspension, Dismissal and Removal) Rules, 2007
This Ordinance was passed on 16th January 2007 by the President under Article 115 of the Constitution. The object of this Ordinance Constitution of Service, Appointment to the Service, Suspension, Dismissal and Removal of the officers .To implementation of the Article 29(3) of the Constitution of Bangladesh appointed officers under Judicial Service Commission.
Posts of the Judicial Service
Section 5 of this Rules deals with qualifications for officers, age limitation and other conditions. Followings are the qualification for appointment as a judicial officer:
1. Shall be complete LL.B (Honours) or LL.B from any reputed university with second division.
2. Age not more than thirty (30) years.
3. No one can be appointed without recommendation of the commissioner.
Following persons are not qualified to appoint as a judicial officer:
01. If he is not a citizen of Bangladesh or not permanently reside Bangladesh or he is not domicile.
02. If married or promised for married with any one who is not citizen of Bangladesh.
Before appointment as a judicial officer he or she shall be appear before examination and health test. Their job will be permanent after two years of their appointment.
Section 8(19) provides qualification :
Serial No. Name of the Post Minimum Qualification
01.
Chief Judicial Magistrate or Chief Metropolitan Magistrate
Two years experience as a Additional District Magistrate or Additional Chief Metropolitan Magistrate and minimum fifteen(15) years experience as a first class officer.
02. Additional Chief Judicial Magistrate or Chief Metropolitan Magistrate Five years experience as a First Class Magistrate minimum Twelve (12) years experience as a first class officer.
03. Senior Judicial Magistrate or Metropolitan Magistrate or Special Judicial Magistrate Three(03) years experience as a First Class Magistrate minimum Eight(08) years experience as a Officer.
04. Judicial Magistrate Experience as a Magistrate
Schedule 2(J) of this Rule provides following types of posts are available in the Judicial Service:
First Part
1. District Magistrate/ District and Session Judge or others Magisterial posts.
2. Additional District and Additional Session Judge or others Magisterial posts.
3. Joint District and Joint Session Judge or others Magisterial posts.
4. Senior Assistant Judge or others Magisterial posts.
5. Assistant Judge.
Second Part
01. Chief Metropolitan Magistrate or Chief Judicial Magistrate.
02. Additional Chief Metropolitan Magistrate or Additional Chief Judicial Magistrate.
03. Senior Judicial Magistrate (First Class Magistrate/Metropolitan Magistrate/ Special Magistrate)
04. Judicial Magistrate (Second Class Magistrate or Third Class Magistrate)
Bangladesh Judicial Service Commission (Posting, Promotion, Grant of Leave, Control, Discipline and other Conditions of Service) Rules, 2007
This Ordinance was passed on 16th January 2007 by the President under Article 115 of the Constitution. The object of this Ordinance is to determine Posting, Promotion, Grant of Leave, Control, Discipline and other Conditions of Service for the officers of this service.
Section 3 of this Rule provides about posting of the officer of this service. This section prescribes that, Posting of the officers of this service will be determine under Article 115 of the constitution of the Bangladesh with consultation of the Supreme Court.
FIRST PART
SERIAL
NO NAME OF THE POST APPOINMENT PROCEDURE QUALIFICATIONS
01 02 03 04
01. District Magistrate/ District and Session Judge or others Magisterial posts Promotion from Additional District and Additional Session Judge Two years experience as a Additional District Judge or Additional Session Judge and fifteen (15) years job experience.
02. Additional District and Additional Session Judge or equivalent others post. Promotion from Joint District and Joint Session Judge Two years experience as a Joint District Judge or Joint Session Judge and Ten (10) years job experience.
03. Joint District and Joint Session Judge Senior Assistant Judge or other equivalent post. Two years experience as a Senior Assistant Judge and Seven (7) years job experience
04. Senior Assistant Judge Assistant Judge or other equivalent post. Four years experience as an Assistant Judge
05. Assistant Judge Appointed by Article 115 of the Constitution of Bangladesh. Appointed by Article 115of the Constitution of Bangladesh.
SECOND PART
SERIAL
NO. NAME OF THE POST APPOINMENT PROCEDURE
01 02 03
01. Chief Metropolitan Magistrate or Chief Judicial Magistrate.
From Additional Session or Additional District Judge under Article 115 of the Constitution.
02. Additional Chief Metropolitan Magistrate or Additional Chief Judicial Magistrate From Joint Session or Sessions Judge under Article 115 of the Constitution
03. Senior Judicial Magistrate
Judicial Magistrate/ First Class Magistrate/Metropolitan Magistrate/ Special Magistrate From Senior Assistant Judge or Under Article 115 of the Constitution.
04. Judicial Magistrate (2nd or 3rd Class) Assistant Judge or Under Article 115 of the Constitution.
By Safique Hossain
Advocate
Dhaka Judge Court