Separation of judiciary is the necessity for good governance and the rule of law – illustrate
This paper aims to present an outline of the present situation regarding the lack of separation between the lower judiciary and the government and its suggestion for contact to justice and the protection of basic human rights. It focuses on the agreement for separation as laid out in the judgment, evaluates the measures taken to monitor with that judgment to date and makes proposal for ways and means to ensure its full realization. This paper also aims to catalyze discuss among anxious leaders and policymakers and within a broader public arena, to build consensus on the need for urgent action to effect separation of the judiciary. But in reality, this separation is not totally made because of political interference that just reserved the separation of judiciary in pen and paper. I will try to focus the reasons for lacking of judiciary, how to ensure an effective judiciary and separate it from executive, the current situation about executive control over the lower judiciary.
It is, however, difficult to describe precisely what independence of judiciary covers. Literal meaning of the word is to protected freedom from outside control and manipulate including the obstruction from the executive. That is why the constitution offers separation of powers. The basic characteristics of judicial autonomy are security of tenure, financial safety and administrative security.
Government, the Minister
In government, the term refers not only to the chief administrative officer but to all others who execute the laws and to them as a group. In modern government, the executive also plans and formulates governmental policies, directs relations with foreign governments, orders the armed forces, approves or disapproves legislative acts, recommends legislation, and in some countries summons and opens the legislature, appoints and releases some executive officials, and pardons any but those accused. Usually the executive may also issue ACT, often supplementing legislative acts, and may understand statutes for the guidance of officials. These broad powers depend upon the theory that the state has a juristic personality whose will the government, in its various departments, must perform. The separation of the legislative, executive, and judicial powers of government was not only modified in the U.S. Constitution but has been further customized in practice, for the President executes many judicial and legislative functions. Difference is sometimes made between executives who decide policies and the administration that brings the laws and executive orders.
Judiciary as an organ of the condition has to administer even handed justice in accordance with the Constitution and the command of law. Any obstruction therein guides to consequences affecting adversely the very basis of democracy, making democracy sometimes merely a front without the inner spirit of democracy in the real sense of the term. It is, however, difficult to describe precisely what independence of judiciary covers. Accurate meaning of the word is to secure independence from outside control and weight including the interference from the executive. That is why the constitution submits separation of powers. The fundamental uniqueness of judicial independence is security of control, financial security and administrative security.
Separation of Judiciary
Separation of judiciary has the major and essential role to make sure good governance and the rule of law. It is not still clear whether the continuing process of authorizing the executive magistrates with the cognizance taking power is the government’s bending down to the pressure from the executive officers or taking of any evil suggestion to grab the judicial power to use it as a tool of irritating the opponents of the government.
Parliament is supreme land for making law and it is the part of the courts that the judiciary interprets and applies such law. In the decision-making procedure, allow judges have freedom to choose cases fairly, in harmony with their accepting of the law and the facts. Powers of judgment will not be recollected to the executive magistrates by the bill now in parliament but the executive magistrates will only have the power to send performer for following under a judicial magistrate. Such power is necessary to maintain law and order. No Judiciary can be fully independent because it is economically relied on the government (i.e. the Executive). So, clearly judicial independence has a restrictive meaning involving the independence of judicial enrollment, career formation etc of all judges and Justices, and the independence of the judicial process where judgment of any court whether high, medium, lower are accepted by members of the Judicial organ of the state and not by members of any other branch, especially the executive magistrates who had in the past such powers to moderator, fine or jail at the lowest rung of the judiciary with some go beyond of judicial and executive authority.
In Bangladesh, the judiciary headed by the chief justice, consists of Supreme Court and subordinate courts. The Supreme Court has two parts, the Appellate Division (seven judges) and the High Court Division (72 judges). They have separate purpose and different activities are made to each.
The subordinate court comprises,
1. Civil Court
2. Criminal Courts
3. The Special Courts and Tribunals
Government or ruling party’s appointment of high court judges and its impact
A judicial officer has given a number of orders release ruling party persons from pending prosecutions. Ruling political party’s purpose is to elect as a candidate.
Instead of severe criticism in the media, and demands raised but no action was taken by any of the concerned authorities to even investigate these statements. Ultimately, next a public interest injunction appeal filed by a lawyer as supplicant, the High Court Division issued a direction warning the concerned officer from discharging any judicial f unction. The judicial officer anxious about the permission to appeal before the Appellate Division, but his application was rejected.
This case possibly best demonstrates how even a glaring instance of judicial misconduct does not result in any form of investigation let alone accountability within the current structures of judicial control and administration. A perception of lack is judicial inefficiencies.
Current Situation: Executive Control over Lower Judiciary
The unclear lines between judicial and executive position and purposes of the lower judiciary and a situation, in which they are under the power of the executive, reduce the see-through and answerable administration of justice, in particular criminal justice. The impact of lack of separation is felt directly in terms of rejection of contact to justice, as well as obvious violations of the most basic human rights to life, freedom and personal security. It also impacts more widely on governance in general. The incapability to make sure the enforcement of contracts, combined with the failure to ensure legal protection of life and property also acts as a significant deterrent to investment.
As Dieter Conrad notes, ‘the subordinate judiciary has become believed that obedient to the executive and agreeable to pressures and influences from politically influential people… Telephones were supposedly installed in judges’ assembly room in order to receive warning calls from significant accommodation…the continuation of executive control is in itself a standing invitation to abuse’.
There are three levels of lack of separation on judiciary. First one is rejection of access to justice, then the lack of accountability of the lower judiciary and finally with observes to the rising erosion of confidence in the judiciary and the resulting increase in the use of violence to determine conflicts at various levels.
Separation of Bangladesh Judiciary from Executive
Chief Adviser to the Caretaker Government of Bangladesh Dr.Fakhruddin Ahmed installed the Dhaka District Judicial Magistracy and Dhaka Metropolitan Magistracy and said the day will provide as a “glorious milestone” for moving forward the rule of law in the country.
He announced the two different magistracies; judicial and executive. As the Code of Criminal process (modification) ACT came into result on 1 November 2007 by dividing the judiciary from the executive.
The adjustment follows a result by the chief justice of the Supreme Court .citation jurists and political thinkers, Fakhruddin restated the meaning of the separation of situational powers. If the judiciary is obedient to the ministers, it will be unfocused from justice and more anxious with the wishes of convinced authorities. One chief justice said “it is better late than never”. Judicial magistrates have to justify their partition from ministers by restoring public assurance in the judiciary. Political parties as well as Awami League greeting the long expected separation of the Judiciary from the executive with a hope that people would receive fair justice simply and timely.
US, UK hail separation of judiciary
In United States, there occurred the separation of judiciary from executive.”The United States government praises the caretaker government’s proposal to apply this improvement process”. The United Kingdom called to the separation of the judiciary from the executive power, saying that judicial independence is a corner stone for the protection of payable process. In the United Kingdom biasness or the awareness might be recognized by evidence of a financial or political interest on the part of the judge.
Ensuring effective separation of Judiciary
Separation of Judiciary has the significant role to guarantee good governance and the rule of law. There is no better platform except an independent judiciary to support legitimate and human rights.
The judicial magistrates with healthy legal background are researched deep into the cases with nitty-gritty of law, setting aside any political interference and favoritism. Such welcome pointed about the separation of judiciary would make sure good governance in the near future and not a single victim would thus hopefully without medication. The judiciary should neither show bias in mediation nor place themselves by their words or deeds in a position whereby there might be created in the minds of viewers a doubt.
The justice-seekers have connections with the judges in an open court surroundings, without any hide and seek game of corruption which was a common course of business before the separation of judiciary. Judges must try to guarantee in their extra-judicial activities, they must exercise self-control both in respect of completing personal choices and also their behavior or relationship outside the courtroom.
Unfortunately, the government of the day with its “promise about change” is enchanting the wrong step to endanger separation of judiciary using influencing upon administration of criminal justice. If the commitment of the government for the people is about a paradigm shift of conventional governance equation in Bangladesh, the bill for the separation of judiciary should be passed.
So, the question will arise, why the government needs taking power in its hand to use the same through the executive magistrate? The answer is that the government is trying to control this power as it is not willing to lose the power of domination to be used against the political opponents on different pleas. It will also be productive to reduce the ruling party criminal from their criminal accountability. If this kind of misleading influence or misinformation is resorted by the government to create basis and to formulate public support to have a black law, how can the people keep their confidence in the much exposed slogan for modify?
The people of Bangladesh have a lot of expectations. They do not recognize why the executive wants to worry again the settled issue of separation of judiciary after past 14 months when there was no trouble of law and order situation in the field level. History would bear out to what amount the employees of the administrative sector did clearly and secretly use their power to bother the different political entities, though the constitution of the state preserves all the human rights confirming the same to the citizens of independent Bangladesh.
It is a matter of great sorrow for the nation that after long 38 years of independence, the democratically elected government is in fact irresolute on taking the action that is needed to ensure developed separation of the judiciary.
For the eventual interests of the countrymen, the move to share with the executive the control to deal with illegal cases must not be carried forward. The civil society, non-government organizations (NGOs) and other stakeholders should come forward with their strong encouragement to aggravate attempts by the huge interests to endanger the smooth functioning of a judicial system that can be made sure only throughseparation of authority.
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2. Chowdhury,A.K. ‘The Independence of Judiciary ‘available at http://www.supremecourt.gov.pk/ijc/Articles/2/8.pdf [Accessed 18 June 2012]
3. Hossain,S. & Alam,T.(2006) ‘UNDP Policy Paper: Separation of the Judiciary from the Executive in Bangladesh’ available from:- http://www.undp.org.bd/library/policypapers/separation%20of%20judiciary%20paper_revised271106.pdf [Accessed 17 June 2012]
4. Mukta,K.M ‘Ensuring effective separation of judiciary’ available at:- http://www.thefinancialexpress- bd.com/2009/03/24/62143.html [Accessed 17 June 2012]
5. Mutinta,(2012), ‘Ruling elite should stop interfering with judicial independence’ available at:- http://www.zambianwatchdog.com/2012/04/29/ruling-elite-should-stop-interfering-with-judicial-independence/ [Accessed 17 June 2012]
6. Trivedi,R.(2007), ‘Dhaka Diary: Separation Of Judiciary From Executive Inaugurated: War Criminals’ available from:- http://www.asiantribune.com/node/8103 [Accessed 16 June 2012]
7. The separation of judiciary from executive, (feb 26). available from:-http://www.lawyersnjurists.com/resource/articles-and-assignment/separation-of-judiciary-from-executive/ [ Accessed 17 June 2012]
 Given Mutinta, ‘Ruling elite should stop interfering with judicial independence’ available from:- http://www.zambianwatchdog.com/2012/04/29/ruling-elite-should-stop-interfering-with-judicial-independence/ [Accessed 17 June 2012]