The Independence of Judiciary and its association with Political Interference

“The Independence of Judiciary and its association with Political Interference”-explain

Introduction

In a democratic state, the power is actually based on three separate organs. These are mainly the executive, the legislature and the judiciary.

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.

We know that judiciary is the last hope and aspiration to restore the rights of citizen in our country. Because, when people face a big problem then they want to a legal judiciary. But this judiciary can not act to restore these rights unless and until it is free from any external influence and interference of any other organ. Therefore, it is an understandable need that the judiciary should be totally separated in truest sense to perform its functions independently which is the main object of the judiciary. But the separation is not enough to perform its function effectively in our country. On the other hand, where there is no effective separation of judiciary, there is no independent judiciary and where there is no independent judiciary; there is no rule of law.

On the other hand, we know that political interference is a major barrier to the proper justice. If the judiciary is separated, case can be dealt without political interference. We can not expect proper justice if judiciary does not work independently. So, from this point of view separation of judiciary is necessary in Bangladesh.

Independence of Judiciary

Independence of judiciary means a fair and neutral judicial system of a country.[1] It means it is free from any external factor. This can give to take its decisions without any interference of executive or legislative branch of government.

A separate and independent judiciary is a pre-condition for rule of law. The judiciary of Bangladesh has been separated from the executive in 2007. Chief Adviser to the Caretaker Government of Bangladesh Dr.Fakhruddin Ahmed separated it. Dr. Fakhruddin Ahmed said “the day will serve as a “glorious milestone” for advancing the rule of law in the country”. At that time our most honorable political party Awami League welcomed the long awaited separation of the Judiciary from the executive with a hope that people would get fair justice easily and timely.

However, this organ is not in satisfactory level to fulfill the hope of people in Bangladesh. The main problem is in forming the separation itself. On the other hand, the problem is occurring from two aspects. One aspect is the attempt to separate the judicial service from the executive, in terms of management 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.

There are four meaning of judicial independence.

» Substantive Independence: Substantive independence actually refers to as functional or decisional independence of judges to arrive at their decisions. That means judges can take any decision to follow the law. There is no external or internal interference.

» Personal Independence: Personal independence refers that judges are not depend on government in any way. That means when judges will take any decision then they are not depend on government in a country. The judge will take decision to follow the law.

» Collective Independence: Collective independence refers that the institutional, administrative and financial independence of judiciary as a whole and independence from legislative and executive. That means it is free from institutional, administrative and finance of the other sectors. In this sector, finance department should totally separate for the judiciary branch.

» Internal Independence: Internal independence refers that it is independent from their superiors and colleagues.

Although, judiciary is separate from other organs in Bangladesh, but many important things of this organ is controlling by the government and the government’s decision makers branch.

Separation of power

Separation of judiciary was mainly originated on the basic concept of separation of power. French great political philosopher Baron Montesquieu is the founder of the doctrine of separation of power. Baron Montesquieu said that “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”.

Separation of power is very important things to the judgments. For example, investigation report of murder case of Sagor – Runi (journalist), the people of our country will never believe or trust very easily. Because, although judicial department is separate, but it always controlled by our government and government’s valuable branches. According to this example, if there is no interference on the judicial department, then legal and proper judgment must be possible. We know that the Government accepts that the independence of the judiciary must be preserved. But it is only in the document, not in reality.

The judiciary was generally seen as the most important of powers, independent and unchecked, and also considered the least dangerous.

Separation of Judiciary

The term separation of judiciary means the judicial organ of the government is free from interval of the any organ of the government. It does not mean the judiciary has no relation with other organ of the government like Executive and Legislative. It means the judiciary shall do its function or task as follow the law of our country. On the basis of this fact and to follow our constitutional 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.

Dr. Kamal Hossain is a respected advocate of Bangladesh Supreme Court. He have been explained the concept of separation of the judiciary through the idea of double standards. Dr. Kamal Hossain said that “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 verification 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.

For example, if the case of murder of Sagor – Runi (Journalist), totally investigated by judiciary Magistrate and his or her investigation team, then it should be legal and proper than current situation.

Executive Dominated Judiciary

Judiciary is dominated or controlled by Executive. If we look at the current appointment system of High Court Judges, then we can understand. Appointment of a person in the judicial service branch 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, accept 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. totally depend on government.

For example, according to The Daily Star news paper, last one year ago, the District Commissioner of Pabna had been treated by the government party’s people. But there was no fear justification for the government influences.

For the example, now all the reports of a criminal are written by a police officer. This police officer is not always proper. So, if this task is done by the magistrate of judicial organ or judicial investigation teams, then it must be accurate and proper.

Chief Justice Ruhul Amin said the previous governments did not fulfill their constitutional obligations by separating the judiciary, but “it is better late than never”. He told judicial magistrates that they have to justify their separation from the executive by restoring public confidence in the judiciary.

Overlapping Competencies

Executive branch ministries to work as their legal officers hire judges from the subordinate judiciary. Generally ministries do not have legal officers of their own, and the public prosecution service is an adhoc arrangement. If we follow the proper system then we can know that judges are actually appointment by the judiciary branch. But in Bangladesh judges are directly recruited by government or another branches of our government. But it is totally invisible. We know that where judge is political person, judgment can not be proper or real in there.Arguably, judicial independence is compromised when a person acts as both a prosecutor and a judge.

Recommendation

Appointment of judges is the most important things for judiciary. But it is controlled by executive in our country. I think it is very harmful for human being and our country. Because, if a man or woman of government party create any fault, then legal and proper judgment is not possible. So, it is necessary to change.

On the other hand, an appointment of judge must be effective, proper and qualified. Appointment system should be totally free from the government influences, because in Bangladesh Chief Justice and other Judges are appointed by the President. It should be totally controlled by the judiciary branch.

We know that unwarranted influence from executive is a common barrier in delivering judgment by judges. It is crying necessity to have more safe protection for judicial officers as well as Judiciary should not be dictated by any undue influence from executive organ. On the other hand, Judiciary has to depend on executive for investigation of dispute. For example, police investigation in criminal case which is exclusively in the hand of police. Therefore, Judiciary must have its own investigation team. For example; Sagor – Runi murder case So, the government should responsible to prepare this situation.

Conclusion

Independence judiciary is the guardian of constitution as well as rights of citizen in a state to protect under legal framework. It is also the last hope and aspiration to restore the rights of citizen in our country. We know that it have been separated from other organs. But this system is now in pen and paper in our country. We can say that where there is no effective separation of judiciary, there is no independent judiciary and where there is no independence judiciary; there is no rule of law.

On the other hand, political interference is a major impediment to the proper justice. If the judiciary is separated, case can be dealt without political interference. We can not expect proper justice if judiciary does not work independently. So, from this point of view separation of judiciary is necessary in Bangladesh.

Bibliography

Online article, Montesquieu, Barron De. The spirit of the laws. (Trans. Nugent).pp. 151-52.

News paper article, Rahman,Khan Ferdousour. Independence of judiciary: A dream comes true. The Daily Star, April 04, 2007

Retrieved from: http://www.thedailystar.net/law/2007/03/04/opinion.htm

Case article, Karim, Md Mahbubul. Judicial separation of Bangladesh. Stamford University, Bangladesh

Hoque Ridwanul. Judicial Activism in Bangladesh. Cambridge: Cambridge University Press, April,2011

[1] Html Document, Independence of judiciary: a dream comes true, paragraph 03

Retrieved From: http://www.thedailystar.net/law/2007/03/04/opinion.htm

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