Through the separation the judiciary has been given an independence to work without any influence but the political appointment of the judges in the high court has nullified the freedom given by the constitution.-explain
Introduction:
The courts are one of the most fundamental institutions where power is contested in a constitutional democracy. Judiciary is the guardian of constitution. It also protects the rights of citizen in a state under legal framework. This organ is more important than the other two organs Executive and Legislature of democracy. Judiciary is the last hope and aspiration to restore the rights of citizen in a country. 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. But it cannot act to secure the rights of the people unless and until it is free from any 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, there is no independent judiciary and without an influence free independent judiciary, there is no rule of law.
Separation of power:
Separation of judiciary was mainly originated on the basic concept of separation of power. Islam (2012) refers French great political philosopher Baron Montesquieu who is the founder of the doctrine of separation of power. According to him the judiciary must perform its function independently without any interference of other two organs because the independence of the judiciary has to be real and not apparent merely. The judiciary was generally seen as the most important of powers, independent and unchecked, and also considered the least dangerous. The separation of powers, also known as tries political, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.
Separation of Judiciary:
The term separation of judiciary means the judicial organ of the government shall be free from interruption 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 as per law of the country not to by any other means. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, and pressures, threats of interferences, direct or indirect, from any quarter or for any reason. Moreover, the concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive.
Independence of Judiciary:
Though our constitution talks of the separation of the judiciary but it is not well defined what actually is the independence of the judiciary. As Islam mentions in his writings that the other meaning of the judicial independence can be found out by looking at the writings of the scholars who have researched on the topic. Scholars define judiciary by talking about the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor. So the independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms a part of the judiciary. The concept of judicial independence comprises following four meanings:
- Substantive Independence: which refers to functional or decisional independence of judges to give any decisions?
- Personal Independence: that means judges are not dependent on government in any way or in other words government’s influence upon them in reaching at decisions is not permitted.
- Collective Independence: this means that the judiciary must have institutional, administrative and financial independence as a whole and independence from legislative and executive
- Internal Independence: which refers to independence from their superiors and colleagues
Separation of Judiciary in the Constitution of Bangladesh:
There is no condition behind the independent judiciary in our country according to the constitution. This ideal is protected primarily through the concept of separation of the judiciary from other organs of government. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state[1]. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges[2]. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles115 and 116 stating respectively: Appointment of persons to offices in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.
Though Fourth amendment of the constitution destroyed the independence of judiciary, in 1987 initiatives were taken to separate magistracy by amending Code of Criminal Procedure, 1898. But bill could not be placed before the Parliament for unknown reason. 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.
Masdar Hossain Case:
In Masdar judgment, the Appellate Division addressed head-on certain concerns regarding executive control over the judiciary. It reconfirmed the principle of independence of the judiciary, and elaborated on the constitutional position and practice regarding separation of the judiciary from the executive.
218 persons in judicial service, including Masdar Hossain brought before a challenge in the constitution to the High court. They argued that the persons in judicial service could not be included within the Bangladesh Civil Service Order 1980 as the subordinate courts were part of the judiciary and, nor could they be controlled as though they were a part of the Bangladesh Civil Service, as defined by the Bangladesh Civil Service Rules 1981 (‘the BCS Rules’). The High Court Division held in favor of Hossain and the other judges, and after the Government appealed this decision and lost, the Appellate Division affirmed the High Court’s judgment.
According to the Appellate Division,“judicial service is fundamentally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.”
Judiciary & Political Parties:
Nazrul (2010) shows different reasons behind the non-effective situation of the so called independent judiciary of Bangladesh. According to him,” Whereas in India and Pakistan, the decision to increase number of judges in the Higher Judiciary is a matter of parliamentary scrutiny and informed debate, in Bangladesh in the name of President it is the Law Ministry which decides whether and if so how many new judges would be recruited”.
The Ministry of Law makes the shortlist of the judges which is politically influenced, rather on the basis of experience and merit. As the list is not neutral, the appointments, eventually becomes partisan.
Lastly as Nazrul (2010) mentions, “There is no legal obligation for i) confirming services of judges after their two years experiences as additional judge or ii) elevating senior most judges to the Appellate Division or iii) appointing the most senior judge as the Chief Justice. The conventions in latter two areas cannot be said to be firmly established to ensure that political expediency does not dominate.”
Judges of the Supreme Court are appointed by the president upon consultation with the Chief Justice of Bangladesh[3]. Traditionally, the judges of the Supreme Court are appointed from amongst the practitioners and judges of the subordinate judiciary on the basis of their legal acumen, neutrality and professional reputation. The Supreme Court of Bangladesh has known many renowned jurists and judges.
The higher judiciary of Bangladesh became a subject of political debate due to the inception of caretaker government system. With the introduction of the caretaker government system, which is formed under that the Chief Advisor and head of the caretaker government shall be the last retired Chief Justice of Bangladesh, the apex judiciary became the focal point of all political attention. The political parties suddenly engaged in the competition of appointing judges who have similar political beliefs and aspirations. The judiciary organ of any government has to take many decisions regarding the political issues. So it is mandatory that the judiciary must have a neutral and apolitical image. However, the impact of political appointment has been felt very recently, when some judges of the higher judiciary have trespassed into adjudicating on politically disputed issues. This has adversely affected people’s confidence in the judiciary and has questioned the long-standing politically neutral character of our judiciary.
Though the caretaker government system has been demolished with the fifteenth amendment of the constitution[4], the appointment of high court judges is still a political issue. Government indirectly influences the decision of the judges and gets the verdict according to their whim. In this way they suppress the opposition and the citizens with different views regarding Government as well as the powerless people. In this way though the separation of the judiciary was made in 2007, still the implementation of the separation is kept in pen and paper.
Recommendations:
- 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. To establish a better democracy and rule of law any political appointment should be prohibited.
- Finance is a driving resource of judiciary. But it is controlled by executive organ through minister. Therefore, Judiciary should have autonomous financial source allocated by the government which will be adequate financial support to perform its functions properly.
- Undue influence from executive is a common barrier in delivering judgment by judges. Therefore 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.
- Higher judiciary could have been neutralized by an efficient system of monitoring the performances of the Judges. Bangladesh constitution has established a Supreme Judicial Council in order to ensure accountability of judges by prescribing code of conducts and investigating their incapacity or misconduct.
Conclusion:
At the end, it should be pointed out that Independence of Judiciary is a constant struggle for many part of the world. In the sub-continent, counties even like India which has stronger and longer democracy are still learning from its inadequacies in ensuring judicial independence. Bangladesh lacks more in legal framework as well as in practice in establishing such independence. The continuation of political appointment of the judges will never bring the benefits of a separate judiciary. Again, independence and impartiality is needed for an effective judiciary system. ’Impartiality’ refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. ‘Independence’ reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status or relationship to others particularly to the executive branch of government. Now after 40 years of liberation it is more important to change our culture rather application of the theories of separate judiciary for the betterment of the nation.
Bibliography
- Ahmed, Z. C., Politics of Judicial Appointment. Forum. April 2012.Accessed 2 June, 2012 <http://www.thedailystar.net/forum/2012/April/judicial.htm>
- The Constitution of the People’s Republic Bangladesh. Accessed June 2, 2012 <http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367>
- Fifteenth amendment Of Bangladesh Constitution. November 2011.Accessed June 3, 2012 <http://aboutpoliticalscience.blogspot.com/2011/11/fifteenth-amendment-of-bangladesh.html>
- Islam, M. A., Separation of Judiciary, a way to the Rule of law: Bangladesh Perspective. 2012. Accessed 1 June, 2012 <http://www.articlesbase.com/national-state-local-articles/separation-of-judiciary-a-way-to-the-rule-of-law-bangladesh-perspective-5797602.html>
- Masdar Hossain Case, Supreme Court Bar Association. Accessed 1 June, 2012<http://www.bangladeshsupremecourtbar.com/Masdar_Hossain_Case.php>
- Nazrul, A. Independence of the Higher Judiciary. February 2010. Accessed 8 June, 2012 available from <http://www.thedailystar.net/suppliments/2010/02/ds19/segment3/Judiciary.html>
[1]Art 22 of The Constitution of the People’s Republic of Bangladesh
[2] Art 95(1) of The Constitution of the People’s Republic of Bangladesh
[3] Art 95(1) Ibid note 5
[4] Fifteenth amendment Of Bangladesh Constitution, available from http://aboutpoliticalscience.blogspot.com/2011/11/fifteenth-amendment-of-bangladesh.html [ Accessed June 3 2012]