Law Opinion
Independence of judiciary: A dream comes true
Khan Ferdousour Rahman
The basic principles of the independence of the judiciary was endorsed by UN General Assembly in 1985 and referred by the UN Office of the High Commissioner for Human Rights as -- “The judiciary shall decide matters before them impartially on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason”. Separation of judiciary from the executive is the precondition for sound and independent judiciary. Judiciary redresses the grievances of the people and resolves disputes. The International Covenant on Civil and Political Rights (ICCPR), 1966 was also mentioned in Article 14(1) “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
The judiciary has been defined as the last resort of the common people. It is the sector that actually protects and harmonises the varying interest of the members of the society. The judiciary has been the major recourse of the human rights community in the enforcement of human rights. Litigation has been identified as one of the key means of protecting and enforcing the rights of the individual. No other institution of the state is bestowed with the duty but the courts and other ancillary institutions. Most of the monumental achievements of the human rights community the world ever have been through the courts. The judiciary comprises of all institutions established there under for the administration of justice to protect, vindicate and enforce the rights of the people. The judiciary is charged with the responsibility of dispensing justice and safeguarding the rule of law. In any civilized society, judiciary is the last resort for the people to seek shelter and get relief against the offenders and wrong doers.
Independence of judiciary means a fair and neutral judicial system which can afford to take its decision without any interference of executive or legislative organ of the government. Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from the executive or legislative or from the parties themselves or from the superiors and colleagues. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges.
The concept of separation of judiciary from the executive refers to a situation in which the judicial branch of the government acts as its own body free from intervention and influence from the other branches of the government particularly the executive. Principle of separation of powers is one of the vital elements of democracy. If the same individual assumes the functions of both executive and judiciary the necessary check and balance disappears and rights of the citizen are not adequately protected. Separation of judiciary from the executive universally ensures the independence of judiciary and safeguards the rights of the people. It is impossible to ensure the rule of law, upon which other human rights depend, without providing independent courts and tribunals to resolve disputes independently. The complete independence of judiciary is the first major step in the process of its development. Without completing this, progress of work in other areas is not likely to deliver the intended full benefits.
While the Westminster system had largely developed because of the doctrine of separation of powers, our present system of government is largely based on the Westminster. This doctrine of separation of powers proposes that the three institutions of government, the legislature, the executive and the judiciary should be exercised as separate and independent branches. It is this doctrine that stresses the need for the independence of the judiciary from the other two government institutions in order to protect the freedom of individuals. It is under this doctrine that no person can be a member of parliament and a judge at the same time. The doctrine of separation of powers offers several advantages: it proposes separate, specialised and efficient branches of government and it also reduces the abuse of government power by dividing it.
The constitution is the supreme law of the country and for Bangladesh, the form of government has been spelled out in the constitution that it will be a Republic. The constitution lays down specific functions of different organs of the government. The judicial system in Bangladesh has been a legacy of the judicial system as introduced by the British during the colonial days. The parliament is supreme and the lawmakers alone bring about any change by amending the constitution as and when necessary. The Supreme Court has been authorised to interpret the provision of the constitution as and when required. Judiciary helps the government to carry out one of the functions of the state and in doing so it should be able to function independently with no interference from any quarter or under any influence of fear or favour (Article 116A of the Constitution of Bangladesh).
The question of separation of judiciary from executive is not new in our country. In fact, demand for separation of judiciary from executive had been a part of the movement for democracy itself and its implementation was part of the election pledges of both the major political parties. With same origin like us, both Pakistan and India separated their judiciary from the executive in 1973 and 1974, respectively. We earned our independence in 1971. But we have set up our democracy in 1991, after 20 years of independence. So far we could do little progress as far as the implementation of separation of judiciary is concerned. Article 22 of our constitution says, “The state shall ensure the separation of the Judiciary from the Executive organ of the state”. Separation of judiciary is included in Part II of our Constitution, i.e. the fundamental principles of the state policy; and Part V of the Constitution deals with the judiciary.
But unfortunately no government since 1972 when the constitution was framed ever took steps to effect the separation. Finally in 1999 while delivering historic judgment in the famous 'Masder Hossain's case', popularly known as 'separation of judiciary' the Appellate Division of Supreme Court asked the government to take steps for separation as per Article 22 of the Constitution. The Appellate Division also gave 12 points directive or road map on how the separation should be given effect to. The Caretaker Government (CG) of 2001 took all measures to ensure the separation of judiciary, but stopped at the request of both the major political parties, who expressed their desire to implement once came to power. But unfortunately, it is not ensured by the winning party within their full tenure. It has been more than six years since the judgment was pronounced, but in this long period three consecutive governments respectively have only sought 22 extensions of time.
A full bench of the Appellate Division of the Supreme Court on January 10, 2007 ordered the present CG to publish various rules on separation of the judiciary through gazette notification within a week and remove major hurdles for the separation. The four rules are Judicial Service Commission Rule 2002, Bangladesh Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service (Service Constitution, Composition, Recruitment Suspension, Dismissal and Removal) Rules 2002 and Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2001. The government has been given as many as 22 deadlines to implement the 12-point directives of the Supreme Court on the matter, beginning from 1999.
Finally the present CG in a landmark move on January 16, 2007 published the gazette notifications of four rules relevant to separating the judiciary from the executive. The Chief Adviser of the CG and finally the President of the Republic have also endorsed their consent to the documents of those rules. The whole process was done in a hasty move with the Supreme Court deadline of publishing the gazette notifications.
The much expected separation of the judiciary now requires only an amendment of CrPC as per 12-point directives of the Supreme Court given in 1999. With the implementation of those rules, the magistrates working under the executive branch of the government will come under the authority of the Supreme Court, and the lower court will also be free of government control.
Now, it is expected that the complete separation will take place during the present CG by implementing the amended the CrPC in order to fulfil the expectation of the people.
The writer is a human rights activist and freelance contributor.
