Independence of Judiciary: Bangladeshi

paradox.
Introduction
In a democratic state, the powers of the state are generally classified as the legislative power of making
rules, the executive power of enforcing those rules and the judicial power of adjudicating disputes by
applying those rules. In order to avoid autocratic exercise of powers of the state it is thought that these
three powers should be entrusted to different organs, namely the executive, the legislature and the
judiciary. The constitution of Bangladesh vests the executive power in the executive and the legislative
power in parliament. Though there is no specific vesting of judicial power, it is vested in the judiciary, the
judiciary comprises all courts and tribunals, which performs the delicate task of ensuring rule of law in
the society. A social structure remains coherent and cohesive with the aid of a sound judicial system.
Judiciary redresses the grievances of the people and resolves disputes. The dysfunction of judiciary
impacts more severely than that of any other institution as it removes from the mind of people the sense
of attachment with the society. In Bangladesh the Judicial norms and practice have been derogating for
years.

Separation of the judiciary has been argued both as a cause and a guardian of formal judicial
independence. 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. Influence may originate in the structure of the
government system where parts or all of the judiciary are integrated into another body (in the case of
Bangladesh: the executive). For example, in Bangladesh the president in consultation with the Supreme
Court according to the constitution appoints judicial officers other circumstances include functional
aspects of the judicial system when the administration of justice is in some way, affected by executive
orders or actions –. Executive abuse of this constitutional order result in biased appointment of judges,
and other officers of the judicial cadre, favoring individuals who support the governing political party. Dr.
Kamal Hossain, a respected advocate of the Supreme Court, explains the concept of separation of the
judiciary through the idea of double standards. 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 evidence 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 (Dr. Kamal, 2004; 5 March).

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 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. It is principally through the above articles that the executive branch has been able to
gradually intrude upon and influence the judiciary in Bangladesh, creating enormous problems regarding
the quality of jurisdiction and the extent of judicial independence. Recently, separation of the judiciary
from the executive has been argued as a necessity based on the unconstitutionality of the present
organization and while this may well be true, it appears to be he consequential improved functional
independence of the judiciary that is the fundamental reason for separation with unconstitutionality being
only an argument to ensure its enactment (Dr. Kamal Hossain, 5th March, 2004).

A Brief History of Separation of Judiciary in Bangladesh

BRITISH PERIOD

During the British rule there was a demand for separation of judiciary from the executive. The British
administration did not make this separation thinking that separation might go against their colonial
interest. In 1919 the matter of separation of judiciary was raised in the House of Commons but it was not
discussed on the contention that it was a matter within the jurisdiction of provincial government. In 1921
a resolution regarding separation of judiciary was passed in the Bengal Legislative Assembly which was
followed by formation of a committee. The committee reported that there was no practical problem in
separation. However, nothing more was done.

PAKISTAN PERIOD

After separation and independence in 1947 no step was taken in East Pakistan. The United Front included
the idea of separation in its 21 points formula in 1954.The first constitution in independent Pakistan was
adapted in 1956.Unlike the government of India Act 1935 and the constitution of India Act this Pakistan
constitutions of 1956 did not provide for any provision regarding ‘subordinate courts’ or ‘magistracy’;
these was to be regulated by the court of civil procedure and the code of criminal procedure. In 1957 the
East Pakistan Provincial Assembly passed the code of criminal procedure (East Pakistan Amendment)
Act 1957.which dealt with separation. However, this Act was never given effective. 38 Bangla vision
Research Journal Vol. 16, No. 1, 2016.

BANGLADESH PERIOD

After independence of Bangladesh, the Constitution of the Peoples’ Republic of Bangladesh was adopted
in 1972. Provision was made in Article 22 in the fundamental principles of state policy that the state shall
ensure the separation of judiciary from the executive organs of the state. In 1987 by an amendment to the
criminal procedure code Ex-President H.M Ershad prepared a bill for separation of judiciary. However,
the bill did not see the light of the day. In Pakistan separation was done in 1973 and in India in 1974 by
an amendment to the criminal procedure code. In 1990 the issue of separation of judiciary was put into
the manifesto of the three-party alliance movement against H.M Ershad regime. In every election after
1990 both the BNP and AL had breached commitment in their manifesto that if they going to power they
would separate judiciary from the executive. In 1991 a private member’s bill by Mr. Salauddin Yousuf
namely the constitution (14th Amendment) bill 1991, was introduced for further amendment of Articles
95,98,115 and 116 of the constitutions. The bill was sent to a select committee which had about 13
meetings to consider it. The bill tried to restore the provisions of the 1972 original constitution envisaged
by the constitution-makers. The revised Bill was submitted in parliament in 1994.The comparison of the
original bill and the revised bill reveals that ‘the BNP has come out as the champion for the 4th
amendment of the constitution though it is the BNP which never misses any opportunity to condemn AL
for the 4th amendment of the constitution. (Rashid, 46, DLR). However, nothing was done to pass the
Bill. The Bill, however, did not deal with anything about the separation of subordinate judiciary. The
government side did not accept any proposal for amendment of Article 115 and 116 of the constitution.
By not agreeing to restore the original provisions of Article 115 and 116 the government has
unmistakably demonstrated that they are opposed to the separation of the subordinate judiciary from the
executive. Sheikh Hasina as the Prime Minister of 7th parliament kept deep her commitment that she
would do all for separation of judiciary. A committee was formed headed by the secretary of Law, Justice
and Parliamentary Affairs Ministers Abdul Matin Khasru stated that a bill for separation of judiciary from
the executive was under way but nothing more was done. Finally, the last care taker government on 1st
November, 2007 implements some directions of Masdar Hossain case of the Supreme Court regarding the
separation of the judiciary and brought some change in code of criminal procedure. That was the bright
day of separation of judiciary in the history of Bangladesh.

Post Masder Hossain case impact

The Bangladesh Constitution provides for an impartial, fair and independent judiciary as one of its
cornerstones and guardian angel. But in de facto, the judiciary has been subservient to the all-powerful
executive government since independence in 1971. Various governments made balloon promises to
separate the judiciary from the executive only to fulfill popular demand for an independent judiciary. The
trendy culture of executive autocracy over the constitution's imperative of the separation of power
accelerates against the creation of an independent judiciary. This situation led Masdar Hossain, a
subordinate court's judge, to file a writ petition to the Supreme Court (SC) seeking an order for the
separation of the judiciary from the executive as mandate of Article 22 of the Constitution. As a result
The High Court Division (HCD) in May 1999 issued a directive to the government to separate the lower
judiciary from the executive within eight weeks. This ruling upheld on appeal in November 2000 and also
sustained in the revision case in June 2001 in the Appellate Division (AD). Despite Article 112 of the
Constitution making all SC rulings binding for all citizens and authorities, the then government sought 26
extensions of time to implement the ruling and left the power in October 2006 without separating the
judiciary. The military backed caretaker government that assumed office after October 2006 had declared
the separation of judiciary in January 2007 and passed four sets of rules to effect this separation by
ordinance under article 93. These rules came in force from 1 July 2007, upheld the SC's independence and
brought the magistrates exercising judicial functions under the control of the SC, free from executive
intervention.

In a hierarchical judiciary, the higher courts usually control subordinate courts to avoid deviations from
the higher standard of judicial behavior thus preventing damage to public confidence in the judiciary
(Hussainara Khatoon v State of Bihar (1979) Cr L J 1045). The Constitution, in a number of provisions,
warrants the separation of the judiciary from the executive to ensure judicial independence in dispensing
justice It contains provisions for the independence of the lower judiciary. The HCD is authorized to
administer, control, and supervise all subordinate courts (Art. 109). Articles 115 and 116 mandate the
President to establish subordinate courts and appoint their judges and magistrates in consultation with the
SC and to enact appropriate rules. Article 116A affirms that all subordinate court judges in the exercise of
their judicial functions remain independent. All these constitutional provisions purport to confirm an
orderly & just system where subordinate courts remain accountable to the SC not to the executive.

The lower judiciary has a specific constitutional mandate for its independence under Articles 22,109, 115,
116 and116A of the Constitution. Yet the President appointed subordinate court judges and magistrates
through the Law and the ministry of law and justice mechanize the process. So The executive exercises
absolute control over the subordinate judiciary, especially the magistracy. The magistrates are an integral
part of, and subordinate to, the executive that's why they serve only during the pleasure of the executive
and have no choice but to carry out executive directives. I know reader won't agree but please note that
the public prosecution(PP) department has been thoroughly politicized which kept the rule of law and
judicial integrity at bay of Bengal for many years. Frequent government interference with our subordinate
court proceedings on political grounds and their use as a political weapon by providing undue favor in
promotions and transfers, adjournment of hearings, release of accused persons, and withdrawal of cases
on political grounds are triumph over justice. The national committee for reviewing and recommending
the withdrawal of 'politically motivated' cases recommended 7,177 such cases since 2009 for withdrawal.
Recently, it has selected 170, including 30 murder, cases for review without following the mandatory due
procedure of referral from district committees headed by deputy commissioners(DC) who are from
administration cadre service. Only competent trial courts, not the executive, should have the authority to
order the adjournment of pending cases and the release of accused persons. So executive interference
bypasses the justice by undermining the provision for 'public trial by an independent and impartial court'
as stated under Article 35(3) of the Constitution.

By virtue of its authority under Article 109 of the Constitution, the HCD occasionally takes disciplinary
actions against judges upon specific complains. From this point of view HCD in combating malfeasance
in adjudicating procedure is not adequate enough to restore the public confidence.
In Australia, all judicial functions are open to public scrutiny. Lord Denning justified such public
accountability: 'In every court in England you will ... find a newspaper reporter. He notes all that goes on
and makes a fair and accurate report of it. He is ... the watchdog of justice. The judges will be careful to
see that the trial is fairly and properly conducted if he realizes that any unfairness or impropriety on his
part will be noted by those in Court and may be reported in the press. He will be more anxious to give a
correct decision if he knows that his reasons must justify themselves at the Bar of public opinion.

So from Bangladesh perspective the press and media as an effective medium of public scrutiny of
judicial conducts. The judiciary shouldn't be obsessed with the contempt actions in attempting to rescue
itself from constructive media criticisms. Malpractice of judicial impunity from criticisms through
contempt proceedings gradually diminishes the public confidence in the judiciary. Public criticisms are
not to be seen hostile to judicial independence.

There must be a specific criteria for the promotion of judges, not merely on the basis of their seniority.
Seniority with side by side the length of service, activity reports, amount of disposed cases of on yearly
basis and how many of them were reversed on appeal or revision should be taken into account.
Publications in professional journals may also be counted in order to ensure that judges are acquiring the
cutting-edge knowledge. if these be followed on a regular intervals, would make the judicial officers
self-regulatory and help them to remain in right track.

Well the conviction rate is relatively low (about 10%) because of corrupted system.Martin Luther King jr.
said that 'Justice delayed is Justice denied.' To check malfeasance we need to establish supreme court
secretariat. Because in current system judiciary is solely dependent on Ministry of Finance and Ministry
of Law and justice. Which is a big loophole is ensuring judicial independence.
We have passed many years since independence but still didn't frame any law in recruiting justices to
Supreme Court. Though Government has a burden in regarding this by the virtue of article 95 of the
constitution.
The Present Scenario in Bangladesh
In line with the landmark judicial decision by the Appellate Division in Masder Hossain case back in
1999, the Caretaker Government headed by Dr. Fakhruddin Ahmed amended the Criminal Procedure
Code, 1898 in November, 2007 along with these changes the lower judiciary was separated from the
organs of the executive. Although the term ‘executive magistrate’ still exists in the Code of Criminal
Procedure, 1898, ‘executive magistrates’ are no longer vested with any judicial functions; their functions
are administrative in nature. However, it is to be noted that by the Mobile Court Ordinance, 2007
(Ordinance No. 31 of 2007) some judicial powers have been given to the executive magistrates. Through
the addition of sub-section (4) of section 190 of The Code of Criminal Procedure Amendment Act, 2009
the executive magistrates may hold the authority to send for trial to the court of competent jurisdiction
under order specifying the reasons and the period stated by the Government. This is an exceptional
situation. Besides this, the parliamentary standing committee on law, in line with the mounting pressure
from the admin cadre, decided to recommend that the parliament vest authority in the government to
empower executive magistrates to take cognizance in “extra-ordinary circumstances” or “in all
circumstances”

The Parliamentary Committee has also suggested that this power of cognizance will be given to executive
magistrates for maintaining law and order situation and this has nothing to do with trial and giving
punishment. This easy logic sounds easy, but the consequence will lead to a very sordid picture in
ensuring the rule of law in the country.

After November 1, 2007 the basic laws with regard to the separation of the judiciary are constituted
through the Judicial Service Commission.

Observations after Masder Hossain Verdict

The judiciary has been separated from the executive in line with the Supreme Courts directives in Masder
Hossain case. It was the caretaker government of 2007 that actually implement the Masder Hossain
verdict which finally led to the independence of lower judiciary from the executive on 1st November,
2007. But the matter is that, the practical scenario is different from what is led in pen and paper.

The process of appointment of judges still rests in the hand of the executive. The executive indirectly
enjoys the exclusive power in appointment of judges in all levels. Article 115 empowers the president to
frame rules with regard to appointments of persons to offices in the judicial service. Again the president's
power being subject to the Prime Ministers advice and his advice being immune from judicial scrutiny,
the appointment and removal of Supreme Court judges remains strictly in the hands of executive. Though
the president is required to consult the Chief Justice in appointing judges of the Supreme court, he is not
made bound to accept the Chief Justice’s recommendations.

In case of lower judiciary, pursuant to Articles 114, 115 and 116 the president and from behind the
government, has got vast power to control the appointment, transfer, leave, terms and conditions etc of the
judicial officers in the lower judiciary. Though there is a requirement of consultation with the Supreme
Court, it is not much effective since there is no express provision giving primacy to the Supreme Court’s
opinion over that of the executive.
Again the number of judges in Supreme Court is not constitutionally fixed. So there is chances of practice
of appointment of judges as a political weapon in the hand of the Prime Minister to tame an adverse
supreme court.

The matter of forming separate secretariat for the judiciary was led in the 12 directions given by court in
the verdict of Masdar Hossain case. But today in 2018 still there is no separate secretariat for the judiciary
even recently Law, Justice and Parliamentary Affairs Minister Anisul Huq rejected the idea of separate
secretariat for judiciary, saying, it is an unrealistic demand.

The Appellate Division of the supreme court has accepted the gazette notification on the disciplinary
rules for lower court judges which was one of the 12 directives issued in the Masder Hossain verdict. The
rule titled “Bangladesh Judicial Service(Discipline) Rules 2017 says that the president will make
necessary decisions in consultation with the supreme court, and the law ministry will implement those.
By this the subordinate court has completely gone under executives control. Thus the protection of
independence of judiciary has been undermined and separation of judiciary has been violated.
As a whole, what prevails in Bangladesh is simply the absolute dominance of the executive over judiciary
where the judiciary is grossly and shamelessly politicized. Objectively speaking no one can even dare to
think of becoming a judge in a supreme court if he doesn’t have a link with the two major political
parties.

Recommendations
The existing practice of the executive trying to have some form of control over the judiciary is not the
fault of the executive; rather it had become a part of the system. As a consequence of such executive
control over the judiciary having become the norm, and the lack of effective control being exercised by
the Supreme Court, the lower judiciary itself is widely perceived to have moved more and more away
from the basic principles of independence and impartiality. But what we need is a full stop. It is high time
to fill up the loopholes in the entire mechanism. Here are some recommendations to remove the problems
in judicial system and to implement the independence of judiciary.
1. 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.
2. The provision 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.
3. Without proper person we cannot expect a proper system. Men of keen intellect, high legal
acumen, integrity should be appointed for substantive independence which is the most essential
pre-requisite for judicial independence.
4. The judges should have security of job for discharge their duties impartially and independently.
The method of removing the judges should be rigid to assure the independence of judiciary.
5. The implementation power of the disciplinary rules for the lower courts judges should be vested
upon the supreme court instead of law ministry.
6. Political interference is a major impediment to the proper justice. For judicial independence
judges have to stay away from any political influence.
7. Time limits for processing cases, backed by a regime of costs and/or other sanctions to discourage
non-compliance should be enforced.
 8. The Appropriate Authority must ensure that no judicial post is kept vacant for any length of time.
The procedure of the fulfillment of the vacant seat must be transparent and beyond any external
influences.
9. High Court Judges mut conduct full periodical inspections of all courts in the district, in order to
obtain a firsthand understanding of their problems, working conditions and environment.
10. Separate secretariat for the judiciary should be established.
11. A more standardized and stringent process for judicial impeachment of tainted judges. Inducting
‘rule of law’ values for transparency, effectiveness and openness of judges.
12. The government should implement all the 12 point directives as set by the honourable Supreme
Court of Bangladesh in Masder Hossain case.

Conclusion:
Judicial independence is something that must never be taken for granted, and like freedom, exacts the
price of eternal vigilance. According to the words of Henry Cecil, ‘Justice is such a precious commodity
that everything reasonable should be done to attain the highest standard.’ It is impossible to ensure rule of
law, fundamental human rights of freedom, without previously independent courts and tribunals to
resolve disputes independently. Judiciary is the last resort of the suffering people; therefore, it must live
up to its newly acquired status. We wish the independent judiciary make its presence felt and meet the
expectations of the people that are, amply reflected in the jubilant mood they have greeted the separation
of judiciary.

Bibliography

Books:
I. The Constitution Of The People’s Republic Of Bangladesh
II. Halim Md. Abdul, (2014). Constitution, Constitutional law and politics; Bangladesh
perspective,6th ed. Dhaka, pp.340- 344.
III. Constitutional Law of Bangladesh by Mahmudul Islam
IV. The Constitutional Law of Bangladesh by Jashim Ali Chowdhury

Online Sources:
 I. Dr. Kamal, Hossain. 2004 5th 5. March, Interview by Sierd Hadely with Dr. Kamal Hossain,
senior most lawyer of the Supreme Court Bar Association and joint-writer of the Constitution of
Bangladesh.. .
II. Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in Bangladesh.–
Retrievedfrom
III. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=367&sections_id=24570
IV. http://www.loc.gov/law/foreign-news/article/bangladesh-judiciary-separated-from-executive-
control/
V. Nabila Rubaiyat Anzara, 'Independence of Judiciary: A Bird’s Eye View' (Bangladesh Law
Digest, August 13, 2016)
VI. https://www.researchgate.net/publication/238114298_Separation_of_Judiciary_and_Judicial_Ind
ependence_in_Bangladesh
VII. https://www.thedailystar.net/opinion/straight-line/independent-judiciary-must-democracy-
1381690

VIII. http://www.theindependentbd.com/post/131593