Separation of Judiciary in Bangladesh

Introduction:

In a democratic state, the power rests on three separate organs, namely the executive, the legislative and the judiciary.(1) At the Tenth Commonwealth Magistrates’ and Judges’ Conference at Victoria Falls, Zimbabwe, 22-26, Anthony Allot, the learned professor, unhesitatingly exposed as to how the Judiciary even in the most advanced democratic countries, such as the United Kingdom, suffers from embarrassing obstacles against preserving and upholding independence.(2) Bangladesh is no exception to Professor Allot’s exposition as it extremely faces perceptible and imperceptible obstacles in ensuring rule of law in the society.

Meaning of Independence of Judiciary:

The judiciary could not perform its solemn duties unless its independence is guaranteed and protected. As underlined in the UN document of Basic Principles on the Independence of the Judiciary and in a number of authoritative instruments of global or regional relevance ( such as the Beijing Statement of Principles of the Independence of the Judiciary, the Universal Charter of the Judge, and The Latimer House Guidelines), the “formal requirements” of independence of the Judiciary, be it Higher or lower, include constitutional endorsement of its financial, functional and institutional independence, safeguards against partisan and improper judicial appointments, security of the Judges’ tenure, their adequate remuneration and suitable conditions of service and prohibition against post-retirement recruitment. (3)

Professor Allot defines judicial independence as ‘protection or immunity from improper or unlawful influences, direct or indirect, on the way in which the judicial officer carries out his/her judicial functions’. (4)

Judicial independence is the 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). (5)

Principles of Independence of Judiciary:
The concept of judicial independence includes four basic principles, which have been suggested and recognized through international efforts in this field. These principles are:
1. personal independence;
2. substantive independence;
3. internal independence; and
4. collective independence.
The followings are the elaborated version of these four meanings of judicial independence.

01. Personal independence
Personal independence means that judges are not dependent on government in any way in which it might influence them in reaching decisions in particular cases. Personal independence signifies that the tenure of judges and the terms and conditions of their service are “adequately secured, so as to ensure that individual judges are not subject to executive control”.
02. Substantive independence of the judges
Substantive independence refers to the functional or decisional independence of judges to arrive at their decisions without submitting to any inside or outside pressure. It is connected with the determination of the finding of fact and the application of the relevant legal norms to the facts of the case. The substantive independence of judges requires that in performing all the administrative, procedural and substantive duties a judge should be free from any direct or indirect interference, improper influence or pressure.
03. Internal independence
Internal independence means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases. In this regard, the Montreal Declaration 1983 provides:
In the decision making process, judge shall be independent vis-a-vis their judicial colleagues and superiors. Any hierarchical organization of the judiciary and any difference in grade or rank shall in no way interfere with the right of the judge to pronounce his/her judgment freely.

04. Collective Independence
Collective independence means institutional independence, which is connected with responsibility for the effective operation of the judiciary as an organ of government. In its easiest form, judiciary as an institute must be free from interferences of the executive or the legislature. Financial autonomy of the judiciary is also related to the concept of collective or institutional independence. If the judiciary as an institution depends on the executive, the legislature or other institutions for its operation, this may affect the performance of judicial duties by individual judges.

Judicial
Of these four types of independence of judges the substantive independence is the most important because it is the inner strength of the judges that provides the steering-force for them to maintain their impartiality in discharging judicial functions. So, the substantive independence is considered as a cardinal virtue of judges to maintain impartiality in administering justice.
Therefore, independence of judiciary depends on some certain conditions like mode of appointment of the judges’ security of their tenure and discipline of judges.(6)
Judicial Independence in the Constitution:

Part VI of the Constitution deals with the judiciary. Article: 7 provide that all powers in the Republic shall be effective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps the limit of his power is a necessity, on the judiciary.
Article 35(3) of the Constitution provide “Every person accuse of a criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by the law.
Article 116A provide for independence in the subordinate judiciary while article 94(4) demands independence of the Supreme Court Judges. Subject to the provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.

Separation of the Judiciary in the Constitution:

Article 22 state directly and unquestionably, “The state shall ensure the separation of the judiciary from the executive organs of the State.

Article 95(1) addressed the method of appointment for the Supreme Court: the President shall appoint the Chief Justice and other Judges.

Article 115 and 116 state that appointment of persons to offices in the judicial service or as magistrates exercising judicial function be made by the President. 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. 

Why we need for independence of the Judiciary

In 1982, four judges of the Supreme Court, including the Chief Justice, were summarily removed by Martial Law Orders without any inquiry and the grounds of their removal.

Article 107 vests the Supreme Court with the power to make rules for regulating its two divisions and the courts subordinate to it. But all rules are subject to law made by the Parliament and the approval of the President. It is patent that the Supreme Court is subject to both legislative and executive control.
Article 113 empowers the Chief Justice to appoint the staff of the SC, to determine the conditions of service of the staff, and to make rules relating appointment of the staff are subject to previous approval and clearance. These restrictions on the power of appointment of its staff are encroachment on the administrative freedom of the Supreme Court.
The most serous dependence, the financial matters of the SC, is made by the Ministry of Finance. This enormous financial power handled by the executive organs seriously hampers the independence of judicial administration ensuring the rule of law.
Article 115 empowers the President to appoint persons to offices in the judicial service and as magistrates. This is done by the Public Service Commission. There is no separate Judicial Service Commission for recruitment of judges and magistrates in the subordinate judiciary and the SC. During the latest military regime, a judge was transferred from the capital within 24 hours after he had passed an order which was not liked by the government.

A true separation of government powers is essential to ensure the accountability of government, hinder corruption and protect the fundamental freedoms of citizens against the will of the government. Each branch of government must be, and be seen to be, free to act as a check and balance on the other without fear of interference. Separation of the judiciary from the executive in Bangladesh The idea of independence of judiciary was first worked out by a French philosopher Montesquieu who articulated the famous “Theory of Separation of Power” in sixteenth century.

Separation of the judiciary from the executive refers to a position in which the judicial branch of government can acts from out of any interference and influence of other branches of government particularly from the executive. Earlier part of this chapter depicted that in any aspect of judiciary, like appointment, tenure and discipline of the judiciary is not free from interference of the executive. 

01. British period:
During the reign of British ruler, there was a demand for separation of judiciary from the executive. In 1921, a resolution was passed in the Bengal Legislative Assembly regarding separation of judiciary, which was followed by formation of a committee. Though, the committee reported that there was no practical problem in separation of judiciary from the executive. However, nothing more was done during the British period. Thus, the judiciary remained dependent on executive branch of government. Eventually, this situation encouraged the government officials to be corrupt and corruption ruined the socio-economic and human development.
02. Pakistan period
The first Constitution of independent Pakistan that was adopted in 1956 provided for separating the judiciary from the executive. It has been made mandatory for the President to make appointments of judges of the Supreme Court in consultation with the Chief Justice. However, the Constitution of Pakistan did not include any provision regarding “subordinate courts” or “magistracy” and these were regulated by the Code of Civil Procedure and the Code of Criminal Procedure. As a result the judiciary remained under substantial executive control.
However, in 1957, the East Pakistan Provincial Assembly passed the Code of Criminal Procedure with a view to separating the judicial and executive functions of the magistrates. Furthermore, in 1958 the Pakistan Law Commission recommended to bring the judicial magistrates under the control of the High court. Consecutively, in 1967 the Law Commission again recommended to give effect to the Cr.P.C Amendment Act 1957. However, it was never given effect during the whole of Pakistan period and the judiciary was remained the abdomen of executive.
03. Bangladesh period
As a sovereign state Bangladesh adopted it’s Constitution on 16 December 1972 and the spirit of separation of judiciary from the executive was inserted in Article 22. Article 22 enumerates that, “the State shall ensure the separation of the Judiciary from the executive organs of the State”. Article 95(1) addressed the method of appointment for the Supreme Court: the President shall appoint the Chief Justice and other judges. In addition Article 116 A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court judges. Article 116 A, enumerates that the judicial officers including the magistrates have been declared to be independent in the exercise of their judicial functions. Beside this, under the Articles 115 and 116 of the Bangladesh Constitution, the President makes the appointment and control of judges in the judicial service or as magistrates exercising judicial duties.
During Bangladesh period, following initiatives were taken for separating judiciary from the executive. The first attempt was taken in 1976 under a Law Committee headed by Justice Kemaluddin Hossain recommended that subordinate judiciary on the criminal side should be separated from the executive in three stages. In 1987, second initiative was taken to separate the magistracy by a Bill for amending Code of Criminal Procedure, 1898. However, for unknown reason the Bill could not place before the Parliament.
Third initiative, in 1991, a private member’s bill was introduced for further amendment the Articles 95, 98, 115 and 116 of the Constitution, for ensuring separation of the subordinate judiciary from the executive branch. The Bill was sent to a select committee, which had carried out about 13 meetings to consider the proposal. However, no further steps were taken to pass the Bill.
Masder Hossain Case:
Fourth attempt was taken regarding separation of judiciary from the executive in 1995. Masder Hossain along with 441 judicial officers who were judges in different civil courts filed a Writ Petition No. 2424. The petitioners alleged inter alia that:
• Inclusion of judicial service in the name of BCS (judicial) under the Bangladesh Civil Services (re-organization) Order 1980 is ultra vires the Constitution.
• Subordinate judiciary forms chapter II of the part VI (the judiciary) of Constitution and thereby the subordinate judiciary has already been separated by the Constitution. Only the rules under Article 115 of the Constitution and/or enactments, if necessary, are required to be made for giving full effect to this separation of judiciary.
• Judges of the subordinate judiciary being the presiding judges of the courts cannot be subordinate to any tribunal and as such the judicial officers are not subject to the jurisdiction of the Administrative Tribunal.
Ultimately, hearing of the case was held on 1 April 1997. After a long hearing with valuable comments and citations by Dr Kamal Hossain, Syed Istiaq Ahmed and Mr Amir-Ul Islam, the court delivered its historic judgment on 7 May 1997. Then the government favored an appeal to the Appellate Division but the Appellate Division partly reversed the decision of the High Court Division and gave its landmark decision with 12 points directives on 2 December 1999. The Appellate Division directed the Government to implement these 12 points directives including formation of separate JSC and Judicial Service Pay Commission to separate the judiciary from the control of the executive. However, the successive governments have taken time again and again to delay the process.
How did the judiciary become separated finally:
Since the Appellate Division pronounced the judgment in 1999, the successive governments took 23 adjournments to implement the judgment on various pleas up to February 2006. During these seven years time, the government took very slow steps towards the way of separation of judiciary.
Then the interim caretaker government (2006-2008) headed by Mr. Fakruddin Ahmed from the very beginning of his office adopted a positive and firm outlook with a determination to separate the judiciary from the executive. In fact the government took initiatives based on the constitutional principles and 12 point-directives of Appellate Division of Masdar Hossain’s case. As a result four service rules namely:
1. Bangladesh Judicial Service Commission Rules, 2007;
2. Bangladesh Judicial Service (Pay Commission) Rules, 2007;
3. Bangladesh Judicial Service Commission (Construction of Service, Appointments in the Service and Suspension, Removal and Dismissal from the Service) Rules, 2007; and
4. Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Discipline and other Condition of Service) Rules, 2007 were enacted and changes were brought in the existing Code of Criminal Procedure 1898 through Ordinance No II and IV of 2007.
Finally the historic journey of the judiciary separated from the executive started functioning from 1 November 2007.
It is very clear to us that despite separation of judiciary, until and unless the government has adequate respect and willingness to implement the verdict of judiciary and all the rules and regulations related to the separation of judiciary, complete independence of judiciary is not possible.
Concluding remarks:
The forgoing discussion reveals an evaluation of the present state of independence of judiciary in Bangladesh. The concept of independence of judiciary includes numerous aspects like – appointment, posting, promotion, tenure, discipline and other forms of informal scrutiny of judges, however; attempts were made in appointment, tenure and discipline of judicial independence in Bangladesh. In this study, it has been found that several constitutional provisions are very crucial and favorable for independence of judiciary in Bangladesh. However, there are some provisions, which contradict to the concept of judicial independence. These provisions of Constitution should be amended especially in case of appointment, tenure and discipline or the provisions (original Articles 115, 116) of consultation with Supreme Court should be re-established. On the other hand, it can be conducted by JSC and Supreme Judicial Council in place of by President.

Reference From:
(01) and (5): Separation of Judiciary and Judicial Independence in Bangladesh
By Md. Awal Hossain Mollah.

02 and (4): The Problems of Independence of the Judiciary in Bangladesh
By Justice Naimuddin Ahmed.

03. Independence of the Higher Judiciary
By Asif Nazrul.

06. Independence of Judiciary in Bangladesh: an overview
By Md. Awal Hossain Mollah.

07. Administration of Justice in Bangladesh
By Kazi Ebadul Haque.