The appointment of High Court Judges is an important aspect of judicial independence which requires that in administering justice judges should be free from all sorts of direct or indirect interference or influences. -Evaluate
Introduction
Separation of Judiciary (also known as the independence of the judiciary) is the idea that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government. The appointment of High Court Judges is an important aspect of judicial independence which requires that in administering justice judges should be free from all sorts of direct or indirect interference or influences. A functioning and an independent judiciary can restrain and hold the executive accountable together with other state institutions, as well as political and economic elites. 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 mandatory issues of the separation of judiciary
Independence – the extent to which the judiciary is autonomous from the executive’s control
Accountability – the extent to which the judiciary can be held responsible for its decisions and actions
Efficiency – the internal capacity of the judiciary to carry out its objectives
Effectiveness – the extent to which the judiciary has achieved its objectives/mandates
Political Situation and Rationality of Judiciary
Political situation in Bangladesh has now taken a very wild shape and the state machineries along with legal and media apparatuses are now being used to crush and obliterate opposition parties and their political symbols. The common practice in Bangladesh is not to take any legal action against the criminals of ruling party or alliance, while often harsh legal actions are taken against the opposition leaders and activists though sometimes there might have no evidence of corruption against them. The legal apparatus in Bangladesh therefore largely serves the interest of the ruling elites, and provides a powerful tool for them to abate and crush the political opponents.
But It is very unfortunate that the judiciary of Bangladesh has been separated from the executive in 2007. However, the organ is not in satisfactory level to fulfill the hope of people. The main problem is in forming the separation itself. And the problem is of two aspects. One aspect is the attempt to separate the judicial service from the executive, in terms of supervisory control, power of appointment, etc. Another aspect is that the judiciary in recent times seems to have to take upon itself the role of policy-maker, a function which has traditionally belonged to the executive and legislature. Therefore, this research will be a guideline to the stakeholder to make an effective separation of judiciary to ensure rule of law in Bangladesh.
The Criticism of Judiciary Separation
Background– specially appointed male and from renown family
Appointment– Dominated by the political party
Training– Get little training
Political Biasness– influenced by the present political party
Unethical Mind– Bribery and corruption
Obstacles of Judiciary Separation
Political Control on the Judiciary
In the last 21 months, the government has: (a) Compromised the independence of the judiciary by appointing incompetent and partisan Judges to the High Court division of the Supreme Court; (b) Re-organized the benches with their active political supporters in the most important writ and bail benches along with the appellate division by appointing less competent Judges by superseding other senior judges, which was not the custom of the highest judiciary of the country; and (c) Made regular undue intervention in judicial decisions through the politically appointed Attorney General’s office and that of Public Prosecutors.
Corrupted Lawmakers
Maximum judges and lawmakers in Bangladesh are corrupted, and they are easily be influenced and exploited by money and power. Taking bribes spontaneously and making the case diverted are not an exception but have become normalized in Bangladesh. While some traces of this practice dates back to the previous regimes, it has become a very common phenomenon and aggravated in recent days.
Criminal Justice System
The every Government interferes on the judiciary system. If this happened, it would be difficult for the party -in-power to lodge political cases against the opposition. The same is true when the Opposition goes to power. The Government, whichever party is in power, does not want to let go of its control over the criminal justice process because cases against the Opposition need to be manipulated. They are at the receiving end when in Opposition but don’t want to implement the separation of the judiciary when in power.
Hatred among Political Parties
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. The 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. Of late the highest judiciary has reportedly been politicized.
Executive Dominated Judiciary
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. The President cannot exercise his powers whatever, without the advice of the Prime Minister, accept of course his power to appoint the Prime Minister. This is how the executive organ is controlling the judiciary. Their appointments, postings, transfers, promotions, punishments etc. are at the hands of the President.
The Interference of Appointing High Court Judges
Politically motivated judge appointments have increased during the past few regimes. There are adverse effects in the appointment of partisan and less competent judges to the Supreme Court, on the quality of administration of justice, and on its independence. Among the 45 Supreme Court judges recruited by the previous Bangladesh Nationalist Party (BNP)-led alliance government, more than one-third were allegedly affiliated with the ruling alliance, at least one-third of the 17 judges appointed by the current government have been involved in Bangladesh Awami League’s political activities. None of the successive regimes have done so. This is ostensibly to keep control over the judicial appointments.[1] Some South Asian countries like India and Pakistan already have given this mandate to their legislative bodies. It is a frequent debate in Bangladesh whether the politically appointed judges really favor their appointing authorities or political masters when it comes to justice. Hundreds of cases were deemed “politically motivated” in 2010, and charges or convictions were dropped–or soon will be dropped–letting many leaders of the ruling party off the hook. Of 10,489 cases reviewed by the committee, 6,788 were dropped. The court is being influenced by the ruling party. The court very speedily tries the cases where politicians have the chance to get bail. The political appointment of judges is definitely a big barrier to combating corruption in Bangladesh.
Comparison with other countries
In UK Judges can change the common law but there is no involvement of government. Judges must interpret and apply the law is in ensuring that the executive does not exceed its powers in law. The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary”. In USA judges of the Supreme Court and lower federal courts “hold their offices during good behavior.” This means the president cannot remove judges from office. Instead, only Congress can remove judges through impeachment and conviction for treason, bribery, and other high crimes and misdemeanors.
Recent Scenarios of Bangladesh
People are increasingly losing their trust in Bangladesh judiciary, as the current regime has already reshaped it and started using it as a tool for dominance and control. Gross violation of human rights, clemency to the convicted criminals belonging to the ruling alliance, and oppression of the political opponents through false and concocted cases are some of the clear manifestations. The current precarious state of the Bangladesh judiciary has been depicted in a recent issue of the journal of Asian Culture and History. The current regime formed a committee under the Ministry of Home Affairs to withdraw what it calls “politically motivated cases. So far following the committee’s recommendation 4,687 cases/charges have been withdrawn, and another 516 cases have been recommended to be withdrawn. The state of the judiciary has reached such a deplorable state that no court in Bangladesh currently dares to accept any case against the cadres of the ruling regime regardless of the magnitude of crimes, such as, murder, rape, arson, and abhorrent corruptions. Moreover, political opponents are routinely denied bails and detained on laughable cases.
The newspaper report below shows two persons breaking the office of Supreme Court’s chief justice in 2006. These very two gentlemen are selected as the Supreme Court Justices. In another case, a person who is under murder case charge has also been picked as a Supreme Court Justice. When the newspaper disclosed his criminal record, the government forced the court to withdraw the charges against him, which shows the extent of moral degradation of the premier judiciary in Bangladesh where most judges are actually political activists of the ruling party. The Daily Star also reports that the government has taken steps to appoint hundreds of judges in the lower courts.
Can Judiciary Offer any Hope?
In 2007, Faisal Mahmud Fayzee, a Supreme Court judge appointed in 2001, was forced to resign following newspaper reports on forgery in the tabulation sheet of his academic results at Chittagong University. The court authorities withdrew him from judicial functions in the face of a boycott of his bench by lawyers. Although the higher judiciary is still respected and honored by the people, there are growing allegations of unfair practice in disposing of bail petitions, delay in disposing of cases, politically biased decisions and erosion of moral values in supervising the lower judiciary.[2]The judiciary should gradually make itself open to criticism and fair comments by the media and civil society members, for the sake of its own credibility and public trust. “As the institution of last resort for democracy, the judiciary should lead by setting example for others.
Recommendation
Without a clear separation the judiciary can’t function independently. Executive Magistrates should have their own duties to perform and the Judicial Magistrates their own. 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, sometimes unqualified persons are appointed as judges by undue influences or on political consideration.
Conclusion
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, where there is no independent judiciary, there is no rule of law.
References
I. http://www.lawyersnjurists.com/resource/articles-and-assignment/an-independent-judiciary-free-from-influence-of-legislative-and-executive-organs-of-the-state-is-the-prime-requirement-of-a-democratic-state/
II. http://www.igs-bracu.ac.bd/UserFiles/File/archive_file/Judiciary_Policy_Note.pdf
III. Journal of Asian Cultural and History, Vo. 2, No. 2, July 2010, p. 64
IV. Rahman, M. Z. (2005). “Separation of Judiciary from the Executive”, Monthly Current Affairs, January, 2005. Dhaka: Professors Publishers Ltd.
V. Rawsab, A. (2010). “War crime tribunal” in Sonar Bangladesh. Available online at: http://www.sonarbangladesh.com/article.php?ID=2297 .
VI. Jalil, M. A. and M. S. Islam (2010). “Towards a long-term development vision for Bangladesh: Some socio-economic and legal aspects”, in The Journal of Asian History and Culture, (Canada), Vo. 2, No. 2, pp. 58-70.
VII. Daily NayaDiganto (March 23, 2010). “Ai AkromonAwami Leaguer CharitrogotoFascibaderOngso” [this attack is a part of awami fascist character], by SerajurRahman.
VIII. Holiday International (April 02, 2010). “A free and fair war crime tribunal in Bangladesh.”
Available online at http://www.weeklyholiday.net/2010/020410/com.html
IX. The Daily Star (April 25, 2010). “JS body chief’s remark threat to judiciary”, Available online at: http://www.thedailystar.net/story.php?nid=135737
X. The Daily Star (April 25, 2010). “100 judges to be appointed at the lower courts”, Available online at: http://www.thedailystar.net/story.php?nid=135828
XI. http://www.youthmedia.eu/media/116429-bangladesh-where-the-judiciary-can-be-an-obstacle-to-justice
XII. http://www.thedailystar.net/newDesign/news-details.php?nid=790509
XIII. http://bakarsiddique.blogspot.com/2010/07/separation-of-judiciary-in-bangladesh.html
XIV. http://www.articlesbase.com/national-state-local-articles/separation-of-judiciary-a-way-to-the-rule-of-law-bangladesh-perspective-5797602.html
XV. http://www.official-documents.gov.uk/document/cm72/7210/7210.pdf
XVI. http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/151.pdf
XVII. http://www.globalintegrity.org/report/Bangladesh/2010/notebook article By Syful Islam
[1]http://www.thedailystar.net/suppliments/2010/02/ds19/segment3/Judiciary.html
[2]Reuters AlertNet (http://www.alertnet.org)