Though the seperation of the judiciary has been made but the appointment of the high court judges with political interference shall keep the seperation of judiciary in pen and praper-evulate

Introduction:                                                                                    

By understanding democracy we can draw a conclusion that there are three main organ of a democratic government. These are legislative, Executive and judiciary. The legislators legislate, executives will execute the law and judiciary is to apply laws to the individuals. For a well functioning democracy and to protect the right of the citizens of the country it is very important to have a free and fare judiciary system. A social structure remains non coherent and non cohesive without a strong judicial system. In Bangladesh the judicial norms are derogating for years and a huge number of allegations have been mounted against it. The reasons are mostly the powerplay of the political leaders in the judicial system.

Judicial independence is defined, as judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media(personal independence), or from the media (personal independence), or from the superior officers(internal independence).[1]

In november 2007, Bangladesh successfully separated the judiciary from the executive. The care taker government headed by Fakhruddin Ahmed amended the criminal procedure code 1898 and the lower judiciary was separated from the executive organs of the state so that people could expect more free and frank judicial system.[2] But we have seen that the judiciary is still not out of the grasp of the politicians as the president holds certain power to dictate the magistrates and even the lawyers and as normally in Bangladesh we see the president represents a political party normally so we can say it is only on pen and paper.

 A brief idea about the independence of the judiciary:

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 executive or legislative or from the parties themselves or from the superiors and colleagues (Halim, 1998; 299). The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence (Bari, 1993, 2: Rahman, 2000)[3].

• Substantive independence of the judges: it referred to as functional or decisional in dependence meaning the independence of the judges to arrive at their decisions without submitting to any inside or outside pressure.[4]

• 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,

• 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 legislator.

• Internal independence: that means independence of judges from their judicial superiors and colleagues in different cases.

 Freedom of courts depends on some certain circumstances like form of rendezvous of the judges, protection of their term in the workplace and enough compensation and rights. acceptable execution of these situation enable the  judiciary to execute its due role in the social order thus appealing civic poise in it [5]. “Independence of the judiciary”, it is maintained, “lends prestige to the office of a judge and inspires self-confidence in the mass.” [6]

 Significance of division of judiciary:

The thought of “Separation of judiciary” refers to a condition in which the legal division of administration act as its own body frees from interference and influence from the other twigs of Government predominantly the executive.[7] The division of the judiciary targets  at ensuring sovereignty of the judiciary. Once the judiciary becomes institutionally as well as functionally self-governing, it is predictable to be more efficient in caring people’s civil rights and ensuring rule of law. An free judicial system is bound to work non- partially and not below any unjustified pressure from ministers, assembly member, opinionated leaders, media or any powerful person or alliance.

In most cases, judicial independence and separation of judiciary is executed by giving judges long tenures, making them not easily removale, ensuring that their leave, adequate renumeration, promotion, transfer and other conditions of service are adequately secured b law and reiterating that decesions of those matters are not influenced by political or any other unjustifiable means.[8]

 Separation of Judiciary and Bangladesh constitution:

 The article 22[9] of Bangladesh constitution utter that the state shell ensures the separation of judiciary from the executive organ of the state. However, as this article is not mandatory to execute by the government, government does not execute this article. Moreover, the constitutional amendment, lawmaker of the country reduces the independence of the judicial system. Besides this the structure of the judicial system allows the executive branch of our country to influence the judicial system.

Regarding appointment of persons to subordinate courts, Article 115 of the constitution of Bangladesh says, “In the judicial service or as magistrate exercising judicial functions shell be made by the President in accordance with rules made by him in that behalf.”

It is important to mention that this article 115 is substituted for the original article 115 by the constitution(4^th amendment) Act,. 1075(act 2 of 1975). In original article 115 stated that the president would make appointment but in case of direct judges the appointment would be made by the recommendation of the supreme court and in case of other judges in accordance with rules made by the precedent after consulting with the appropriate Public Service Comission and Supreme court.[10]

However, in the original Article 116, the power of posting, promotion and judicial service and magistrates exercising judicial functions of persons employed in the Supreme Court grants leave and discipline.

So it is evident that the legislators gave the power to the president who is a part of the executive. In this way legislators can always influence the judiciary.

Influence of the executives:

In many countries, executive[11] referred to simply as the government.[12] In Bangladesh, the party[13] which has the mainstream in the assembly run the administration and parliament members elects the President who plys a vital role in key decision making.

At a glance, the judiciary of Bangladesh consists of two divisions, the Supreme Court and the subordinate courts. The Chief Justice of the Supreme Court sits in the Appellate Division and is the Chief Justice of Bangladesh. The president, sometimes-in consultation with the Chief Justice appoints the judges of the Supreme Court.[14]

 The State of Judicial Governance in Bangladesh

 Currently Judicial governance in Bangladesh is operated by two-tier system of courts– district court at the district level and Supreme Court at the centre. The district court is headed by the District and Sessions Judge who is assisted by Additional District Judges, Subordinate Judges, Assistant Judges and Magistrates. The Supreme Court has two divisions—High Court Division and Appellate Division. Most cases trailed by the court system originate at the district level. The High Court Division hears appeals from the district court and also trails original cases. The Appellate Division of Supreme Court reviews the appeals of judgment from the High Court Division.

 Corresponding to 64 districts there are currently 64 district courts in Bangladesh. Only 64 courts are quite insufficient for 150 million people of the country. As a result, the pending rate of cases is very high. The cases trailed by formal courts is also very expensive. A very few rich people have capacity to fund the case battle and the poor who are majority in the country can not go to the district court and Supreme Court for justice. Moreover, a case either in the district court or in the Supreme Court is a lengthy process. There is an abnormal delay in litigations in Bangladesh. There are thousands of cases pending in the Supreme Court. There is no available data as to how many cases are pending with the district courts throughout Bangladesh but according to a study under the present judicial process operating both in district and Supreme Court “it is estimated that number of cases awaiting trail or adjudication will take over 100 years to clear up unless extraordinary is done immediately![15] So the situation of justice in Bangladesh may be equated with the famous saying “justice delayed, justice denied”.

Current situation:

Currently with the invisible hand of the politicians of our country is creating blocks towards a free and fare judiciary even after its division.  “An independent judicial service commission has not been made; the magistrates are not independent from the control of the executive. Implementation of all the articles of constitution related to the independence of judiciary has also not been made and a few amendments of the constitutional article which are against the independence of judiciary needs to be changed.[16] The general mass still doesn’t know the true effects of this division and is not getting the deserved treatment. Justice is yet to be served because the separation is not visible. [17]

Although complete independence of three organs of a government is impossible and hampers the check and balance of the government, required level of independence especially independence of judiciary from legislative and executive, is important to maintain the constitutional right and development for a democratic country. So we have to appreciate the separation of judiciary in Bangladesh which was implemented in November 1, 2007. Though it should easily be understood that it will take a few more years to enjoy the full benefits this separation of judiciary has to offer but people of Bangladesh also has to be more interested towards free information to make that day happen quickly.

 References:

• Ali, S.A.M.M. 2009. Wither separation of the judiciary. The Daily Star. Retrieved from http://www.thedailysatar.net/2009/01/07/d401070 20330.htm
• Bari, M. Ershadul. 1993. The Dhaka University Studies. Part. F, IV; 1: 2
• Zahir, M. (2009, July 14). Eroding democratic values and Constitution [Web blog post]. Retrieved from http://www.lawinbd.co.cc/2009/07/eroding-democratic-values-and.html
• Rahman, M. Ziaur. 2005. Separation of Judiciary from the Executive. A monthly Current Affairs, January-2005. Dhaka: Professors Publishers Ltd.
• Rahman, S.M. Matiur. 2004. The Problems of Separation of Judiciary from the
• Executive. Retrieved from http://www.thedailystar.net. /law/2004/09/04/.
• Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh.–Retrievedfrom
• Www.ais-dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf
• Farooqui, M I (1996): “Judiciary in Bangladesh: Past and Present”,  Journal of Dhaka
• Law Reports, 48 DLR, pp.65-68.
• Islam, Mahmudul, ‘Separation of Judiciary’, The Daily Star, 19 March 2002
•  Kamal, Mustafa J (1995): “Bangladesh Constitution: Trends and Issues”,  Journal of
• Dhaka Law Reports, 47 DLR, pp.46-53
• Constitution of Bangladesh, 1972 Chapters II, III, VI, IX, Fourth Schedule
• Code of Criminal Procedure 1898
• http://www.bdsdf.org/forum/index.php?showtopic=3912
• Rahman, Latifur CJ (2000): “Judicial Independence and  Accountability of Judges and
• the Constitution of Bangladesh”, Journal of Dhaka Law Reports, 52 DLR, pp.65-69.