The Problems and Obstruction of Separation of Judiciary from the Executive in Bangladesh

by The Lawyers & Jurists

Introduction: In a democratic state, the power rests on three separate organs namely the executive, the legislative, and the judiciary. The judiciary comprises of all courts and tribunals, which performs the delicate task of insuring rule of law in the society, however there is no specific vesting of judicial power it is in fact vested in the judiciary itself. The dysfunction of judiciary impacts more severely than that of any other institution. In Bangladesh the judicial norms and practice have been derogating for years. Recently a number of allegation have mounted surrounding judiciary

Independence of judiciary: Judicial independence is the principal that the judiciary should be politically insulated from the legislative and executive power as prescribed under Article 14 of the International Covenant on Civil and Political Rights. This means that the judiciary can afford to take its decision without any interference from the executive and the legislative branches of government. Therefore the judges should be in a position to render justice in accordance with their oath and only in accordance with their own sense of justice without submitting to any kind of pressure or influence.

The land mark decision of the Secretary Ministry of Finance vs Masdar Hossain (1999) 52 DLR, (AD) 82 has determined on the issue that to what extent the constitution of Bangladesh has actually insured the separation of judiciary from the executive organ of the state. In essence, the case was decided on the issue of how far the independence of judiciary is guaranteed by our constitution. However separation of judiciary from the executive and judicial independence appears to have become an endless process.

Separation of judiciary: The concept of separation of judiciary from the executive refers to situation in which the judicial branch of government acts as its own body free from any intervention and influence from the other branches of government particularly the executive as law is not a policy.

Independence of judiciary also depends on some certain conditions like more of appointment of judges, security of their tenure in the office and adequate rumination and privileges. Satisfactory of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it. The constitution of Bangladesh is the first defense of judicial independence, presiding over all the “Republic’s affairs and framing the organization and administration of the government.” While constitutional flaws exist regarding separation of judiciary, there are adequate provisions for formal judicial independence.

Judicial independence in Bangladesh constitution: Part VI[1] deals with the judiciary. Article 7 provides that all powers in the republic shall be affective only under and by authority of the constitution. The responsibility of seeing that no functionary of the state oversteps or limit of his powers is, a necessity, on the judiciary.

Article 116 A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the supreme court of judges. Article 116 A, while requiring judicial independence was part of the detrimental change to the constitution made in 1974 and 1975 states that all person employed in the judicial service and all magistrate shall be independent in their exercise in their judicial functions.

Separation of judiciary in the Constitution: The judicial independence of all judicial officers is unconditional according to the Constitution of Bangladesh. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 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 Problems and Obstruction of Separation of Judiciary from the Executive in Bangladesh: The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. So far many erudite articles written by highly intellectual persons of the relevant fields were published in the leading newspapers of our country. But those intellectual exercises have gone unheeded so far. There were of course commitments of the political parties every time before the elections were held. We must seek the reasons why this very important organ of the state has so far not been given the shape as enunciated in the sacred constitution where the nation has solemnly affirmed for an independent judicial system. I have point out here some common problems.

Lack of Consciousness: Of the total people constituting the electorate of our country, I am sure more than 10% voters do not know what actually is mean by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions we should have at least an average knowledge of our present judicial system. Lack of consciousness people’s has no strong movement for this reasonable and demandful wants.

Lack of Political Will: Any kind of meaningful changed, political will is mandatory because our democratic state deals by various political parties, and government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate the judiciary from the executive it would be impossible. Though most of the political parties have commitment to separation of judiciary but after formation of government they technically avoid the matters. That’s why the process of separation of judiciary is going on endlessly.

Lack of Interaction with Other Courts: Lack of interaction of the judges in Bangladesh with their counterparts in other countries is a possible factor for their insular understanding of law. Of course, the courts’ scarce resources limit the opportunities for such interaction. And, the very limited judicial interaction with foreign courts, when it does occur is arranged in hierarchical order. This means that older judges, who are usually less amenable to fresh ideas and have less time left on the bench, undertake such interactions most often, receiving the most limited results possible.

Lack of Strong Civil Society: Civil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.

Lack of Democratic Culture: We have reached upon 41st years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have setup a democratic government. But we have so far made little progress in practicing parliamentary culture

Executive Dominated Judiciary: Article 115[2] of the constitution: 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

Lack of Popular Access to Justice: Unlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh

Overlapping Competencies: Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary. Generally ministries do not have legal officers of their own, and the public prosecution service is an adhoc arrangement

Corrupted lawmakers: The air of separation of judiciary is entering; side by side it has also bad smell. Maximum judges and lawmakers are corrupted. The takes bribe spontaneously and make the case diverted

Government Negligence: The High Court Division of the Supreme Court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But the government has so long remained headless and negligent to the High Court Division’s directives. When the government itself does not honor the highest court of the country, how can the people in general confide in the judicial system and such underhand practice?

Lack of judicial independence: Judicial independence can be hampered by issues such as partisan political influence in appointments, postings, promotions and transfers which leads to inefficiency, compromises the professionalism of the judiciary, creates vested interests and erodes moral and ethical standards. Some of these causes are discussed below.

Appointment of judges: Partisan political appointments of judges have been cited as a significant reason for judicial corruption and inefficiency. The Constitution nominally provides independence of the Supreme Court; however, there have been wide ranging criticisms about the nature and extent of de facto independence. The Constitution stipulates that the president should appoint the Supreme Court judges after extensive consultation, no clear guidelines exist on the process of consultation or the qualification of the judges. For example, Article 95 of the Constitution, which entrusts the president with the power to appoint the chief justice (the most prestigious position in the country’s judicial system) falls short of explaining the consultation process for the appointment and leaves room for political maneuvering. The Ministry of Law, Justice, and Parliamentary Affairs also retains, in the name of the President, the authority to decide the number of judges who will be appointed to the Supreme Court.

Article 95[3] of the Constitution says that the chief justice of Bangladesh shall be appointed by the president. Unlike the Indian Constitution, the Constitution of Bangladesh is silent as to who the president shall consult for appointing chief justice. The appointment of the chief justice is one of the two cases where the president is empowered by the Constitution to take a decision without the advice of the prime minister, the other case being the appointment of the prime minister. In all other cases, the president has to act in accordance with the advice of the Prime Minister [Article 48(3)].

Article 124 of the Constitution of India provides that every judge of the Supreme Court shall be appointed by the president after consultation with those judges of the Supreme Court and of the High Courts in the states as the president may deem necessary for the purpose.

The controversial 13th Amendment Judgment: The policymakers of the government believe that there is no scope to maintain the caretaker government system in the country without bringing an amendment to the constitution as the 13th Amendment has been scrapped in a recent verdict of majority judges of the Appellate Division of the Supreme Court under the leadership of the just retired Chief Justice A.B.M. KhairulHauqe. The court has opined for holding the next two general elections under the caretaker government, but the observation is not a part of the order. There is no obstruction to abolishing the caretaker government system from the constitution as the review verdict of the Supreme Court has made the 13th Amendment null and void. With this in view, the special parliamentary committee on constitutional amendment has already begun dialog on the matter. Most members of the committee have opined for abolishing the system.

Conclusion: The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary, thus promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general.

Courtesy of The Lawyers & Jurists