“The State shall ensure the separation of judiciary from the executive organ of the state”. –evaluate
Introduction
In a democratic state, the power rests on three organs, namely the executive, the legislature and the judiciary. The constitution of Bangladesh vests the executive power in the executive, the legislative power in the parliament and the judicial power in the judiciary. The judiciary comprises of all courts and tribunals, which performs the delicate task of ensuring rule of law in the state.
The dictionary meaning of ‘independence’ is ‘not subject to the control of any person, country, free to act as one pleases; autonomous, not affected by other etc. However, this meaning of independence is not applicable for the independence of judiciary. Judicial independence is defined, as a 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 superior officers (internal independence).
Independence of judiciary truly means that the judges can make decisions based on the rules & regulations of the country and are not subject to any kind of pressure from the executive or legislative and from the superiors and colleagues.
The Constitution of Bangladesh
The constitution of Bangladesh (1972) clearly stated that the Judiciary should be separate from the executive organ of the state. It is clearly stated in Article 22 of the Bangladesh constitution that,
“The State shall ensure the separation of judiciary from the executive organ of the state”.
Article 115 of the Bangladesh Constitution (1972) was as follows:
“The President would make the 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 after consulting with the appropriate Public service Commission and Supreme Court”.
However, Article 115 was changed by the Constitution (4th Amendment) Act.1975 (Act 2 of 1975). The new Article 115 is as follows:
“In the judicial service or as magistrate exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.”
Article 116 of the Bangladesh Constitution (1972) was as follows:
“The power of posting, promotion and grant of leave and discipline of the persons employed in the judicial service and magistrates exercising judicial function were given to the Supreme Court.”
After the 4th amendment (1975), the Article was changed to the following:
”The control and discipline of the persons employed in the judicial service and magistrates exercising judicial function shall vest in the President and shall be exercised by him in consultation of supreme Court.”
Road to Separation of Judiciary
In 1999 the Supreme Court issued a Landmark ruling. It ordered the government to form an independent judicial services commission to oversee the appointment, transfer & promotion of the members of the judiciary in consultation of the Supreme Court. This is known as the Masdar Hossain. A further 12 point directive called for a separate pay commission for the judiciary, radical reforms of the lower courts, amendment of the criminal procedures, and new rules for the selection and discipline of the members of the judiciary.
Finally on January 16, 2007 the government gazette of Bangladesh announced that the interim president, Professor Iazuddin Ahmed, signed into law the separation of the country’s subordinate judiciary from the executive.The four new regulations that were introduced are the Judicial Service Commission Rule 2007, Bangladesh Judicial Service Pay Commission Rule 2007, Bangladesh Judicial Service (Service Constitution, Composition, Recruitment, Suspension, Dismissal and Removal) Rules 2007, and Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2007.
A Brief Analysis of the Current Situation
The state of the Bangladesh judiciary has been depicted in an issue last of the Journal of Asian Culture and History published from Canada:
“The common practice in Bangladesh is not to take any legal action against the criminals of the ruling party or alliance, while often harsh legal actions are taken against the opposition leaders and activists though sometimes there might be 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”.
In Bangladesh, the law allows the government to make the Supreme Court appointments. Ruhul Quddus Babu was among 17 new judges appointed in April 2010. He was one of nine people accused in the 1988 murder of a leader of the student wing of the political party Bangladesh Jamaat-e-Islami. The charges against all nine accused were dropped shortly before his appointment was announced, causing a strong opposition by the Supreme Court Bar Association (SCBA). Then-Chief Justice Mohammad Fazlul Karim refused to administer the oath to Ruhul Quddus Babu.
He also refused to administer the oath to another of the 17 appointed judges: Mohammad Khasruzzaman. Khasruzzaman had been accused of kicking the door of Chief Justice Syed Jr. Mudassir Husain’s office in a series of acts of vandalism that took place in the Supreme Court in 2006.
The chief justice’s decision was highly praised by many and only criticized by members of the ruling party, who denounced it as a “constitutional stalemate.” He was due to retire in September 2010, and President Zillur Rahman replaced him with Khairul Haque, superseding two senior appellate division judges.
The terrible consequences of the absolute control of the Judiciary by the executive, is now very obvious. The current Opposition Part, BNP is facing the brunt of a coordinated attack on its very existence, which would in turn lead to the death of Democracy in Bangladesh.
On 29 April 2012, the police filed two cases with the Shahbag Police Station & the Tejgaon Police Station. The cases accused 45 leaders of the opposition of setting up explosions inside the Bangladesh Secretariat and arson on a bus near the Prime Minister’s Office in the capital Dhaka during hartal hours. Although the opposition leaders went into hiding immediately, subsequently 37 of them surrendered before the High Court and asked for Bail. The High Court granted bail under the explosive substances act but asked the accused to surrender to the lower courts for the arson case. The Lower Courts rejected the Bail plea and then sent them to Prison. This meant that 33 High Profile Senior Leaders of the opposition were then in Jail. [
This unfortunate situation has caused a severe leadership crisis in the Opposition Camp. If we read between the lines, it is obvious that the Judiciary has been arm twisted by the Executive to partake such drastic measures. The executive, which is made up of the ruling Awami League is forcing the Judiciary to pursue its agenda to make the opposition leaderless. A recent comment by Senior BNP leader, Moudud Ahmed attests to this.
“Government-influenced lower court did not grant bails to our leaders. They secured bail from the High Court. But the government is now trying to hinder the process of their release.” [[1]]
By definition the rule of law means absolute supremacy of regular law. Punishment can only be administered if one breaches the law. No organ in the state should be armed with arbitrary power. The rule of law requires that the government should be subject of the law, rather than the law subject to the government.
All classes of people must be subject to the ordinary law of the land administered by the law courts. Thus equality before the law is very important. All citizens must be treated equally in court. There should be no concessions for the privileged few. But reality is totally different. Irrational privileges are granted to the Political leader and power holders which is a direct violation or equal treatment for all.
Judicial decisions should determine the basic in concrete cases which have actually arisen between the parties. If the judiciary is not truly independent it is not possible for it to determines rights of citizens in the truest sense.
Recommendations
The current situation of the subordinate judiciary does not bode well for the Country as a whole. The country is being held at the mercy of the Ruling Elite. It would be unfair to blame the current Government for this situation. After the autocratic rule in 1990, expectation was high to separate the judiciary. Bangladesh Nationalist Party (BNP) and Awami League first included separation of the judiciary in their agenda during anti-Ershad movement. However successive Governments by these two Political Parties have largely neglected the issue.
Executives usually control the judiciary by appointing judges to their advantage. Thus the first step in establishing the rule of the land is to ensure that the appointment of judges, both in higher and subordinate judiciary should be by the judicial commission itself.
Secondly Judiciary should have an autonomous financial resource allocated by the government which will be adequate financial support to perform its functions properly. If the finances are controlled by the executive organ through a ministry, there can be no freedom of the judiciary in the truest form.
The safety precautions of the Judicial Officers as well as the Judiciary should not be controlled by any undue influence from the executive organ. Undue influence from executive is a common barrier in delivering judgment by judges.
Conclusion
Independence of judiciary is the most important elements of rule of law and has an intrinsic relation between them. Effective separation of the Judiciary is the main underlying factor that ensures the independence of judiciary. So, effective initiative should be taken to ensure an independent judiciary to ensure rule of law in Bangladesh. A non functioning judiciary has severe impacts in establishing rule of law in a state.
Although separation of judiciary was initiated in 2007 in Bangladesh but it has not attained the high hopes of people. Therefore, the judicial norms and practice have been deteriorating for years in Bangladesh. As a result recently a number of challenges and problems have mounted surrounding to the judiciary after separation in 2007. If these problems and challenges are not solved, judiciary will never be independent to establish rule of law in Bangladesh. Any political appointment is bound to impair the image of the judiciary.
Bibliography
· Mollah, Md. Awal Hossain, “Seperation of Judiciary in Bangladesh”, Retrieved from: http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan020065.pdf
· Islam, M Rafiqul, “Apex court ruling on separation of judiciary: A case of enforcer becoming violator”, The Daily star : law and our rights, 7 and 14 October 2006
· “Masdar Hossain Case” from www.bangladeshsupremecourtbar.com/Masdar_Hossain_Case.php
· Rawsab, Abu, “Bangladesh Judiciary: A Tool for Oppression?” Retrieved from www.sonarbangladesh.com/article.php?ID=4093
· Zamir, Muhammad, “Independent judiciary finally round the corner”, The Daily Star on 27 January 2007
· “Constitutional obligation compels me to give oath to judges: CJ”, banglanews24.com.bd on 04-11-2010
· Hossain, Sara & Alam, Tanjibul, “UNDP Policy Paper: Separation of the Judiciary from the Executive in Bangladesh”, 26 November 2006, Retrieved from http://www.undp.org.bd/library/policypapers/separation%20of%20judiciary%20paper_revised271106.pdf
· “Govt dillydallying with leaders` release: BNP”, 9 June 2012,
· Islam, Rafiqul, “Pushing Politics Hard in Bangladesh”, 26 May 2012,
· Islam, M Saidul, “What does judicial independence mean?”, retrieved from
http://www.grameen-info.org/index.php?option=com_content&task=view&id=1014&Itemid=904
[1] “Govt dillydallying with leaders` release: BNP”, 9 June 2012,