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| Separation of the Judiciary
from the Executive : A Brief History |
| In any part of the world, it is one of
the Constitutional mandates as well as commoner's desire
that the judiciary should be independent from the other
organs of the state. It is viewed as a device to protect
the righteous and impartial judicial power from the intervention
of other segments of the government and powerful individuals.
This idea of independence of judiciary was first devised
by Montesquieu, the sixteenth century French philosopher.
Montesquieu in his famous articulation of "Theory
of Separation of Power" described division of political
power among the three organs of the state, i.e.. executive,
legislature and the judiciary. Despite certain criticisms,
Montesquieu's theory of separation of power is taken for
granted in modern discussions of the good governance and
implemented in many Constitutions throughout the world.
It has become one of the core principles in ensuring independence
of judiciary and took concrete shape in Constitutional
documents and Constitutional instruments. In commensurate
with the globally recognized principle, the framers of
the Constitution of Bangladesh also inserted in Article
22 that, -- 'The State shall ensure the separation of
the Judiciary from the executive organs of the State',
being one of the Fundamental Principles of State Policy
as well as one of the core spirit of the Constitution.
However it took almost 35 years for Bangladesh to implement
the directives of Article 22 and the journey has not been
a smooth one. A brief historical background of separation
of judiciary in Bangladesh is described below. |
| British
Period |
| During the British rule
there was a demand for separation of judiciary from the
executive. The British administration did not take any
concrete steps aiming at separation of judiciary as there
was apprehension that it 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 during the
British rule. |
| Pakistan
Period |
After independence of
Pakistan in 1947, the first Constitution in independent
Pakistan was adopted in 1956. Unlike the Government
of India Act 1935 (Ss 253, 254, 255 and 256) and the
Constitution of India (Art.233 to 237) Pakistan Constitution
of 1956 did not include any provision regarding `subordinate
courts' or `magistracy'; these were regulated by the
Code of Civil procedure and the Code of Criminal Procedure
and thus had been under substantial executive control.
In 1957, the East Pakistan Provincial Assembly passed
the Code of Criminal Procedure (East Pakistan Amendment)
Act 1957 (Act no 36) with a view to separating the judicial
and executive functions of the magistrates. In 1958
the Pakistan Law Commission recommended to bring the
judicial magistrates under the control of the High court.
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. |
| Bangladesh
Period |
| In 1972, after independence
of Bangladesh the Constitution of the Peoples' Republic
of Bangladesh was adopted. Provision was made in Article
22 as a Fundamental Principles of State Policy that the
state shall ensure the separation of the judiciary from
the executive organs of the state. This was not merely
a fundamental principle of state policy which was devised
as not to be judicially enforceable, rather it meant more
than that. In fact, the insertion of Article 22 was to
ensure reflection of the spirit of the Constitution as
laid down in its Preamble as "Further pledging that
it shall be a fundamental aim of the State to realise
through the democratic process to socialist society, free
from exploitation-a society in which the rule of law,
fundamental human rights and freedom, equality and justice,
political, economic and social, will be secured for all
citizens". Without ensuring an independent judiciary
all these aspirations stipulated in the Constitution meant
nothing but decorations of the Constitution. But unfortunately
no constructive initiatives were taken by the successive
governments to implement the directives of Article 22.
In 1976, a Law Committee headed by Justice Kemaluddin
Hossain recommended to implement separation of subordinate
judiciary in three stages which are as follows: |
| First Stage: The government may by notification,
appoint some particular magistrates at each station exclusively
for judicial work, thus to ensure that the same person
is not exercising judicial and executive function at the
same time. . This can be given effect forthwith without
any additional expenses or administrative difficulties. |
| Second Stage: There should be separation
of judicial functions from executive as envisaged in the
Code of Criminal Procedure ( East Pakistan Amendment)
Act, 1957 (Act no.36). |
| Final Stage: The final stage would be
not only to complete separation of judicial functions
from executive but also to constitute a separate and integrated
Judicial Service under the control of the High Court Division
for civil and criminal work right up to the level of the
District and Session Judge. The Committee also recommended
that for creation of an integrated judicial service it
would be necessary to enact new legislation. |
| A Bill for separation of judiciary by
an amendment to the Criminal Procedure Code was prepared
in 1987. However, it was later thrown to cold storage.
In Pakistan, separation of Judiciary was done in 1973
and in India, it was done in 1974 by an amendment to their
respective Criminal Procedure Code. In 1990, the issue
of separation of judiciary was put into the manifesto
of the Three- Party Alliance movement against the regime
of that time. In every election after 1990 all major political
parties had a commitment in their manifesto to separate
judiciary from the executive. |
| In 1991, a private member's Bill namely
the Constitution (14th Amendment) Bill was introduced
for further amendment of 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. |
| Masdar
Hossain Case |
In 1995 Masder Hossain along with 441
judicial officers who were judges in different civil courts
filed Writ Petition No. 2424 . The petitioners alleged
inter alia that:
| i. |
Inclusion of judicial service in the name of BCS
(Judicial) under the Bangladesh Civil Services (Re-organization)
Order, 1980 is ultra vires the Constitution ; |
| ii. |
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. |
| iii. |
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. |
The matter came up for hearing on 13.06 .1996. However,
because the petitions for time on behalf of the government
were allowed for several times, it could not be heard
ultimately before 01.04.1997. 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 7th may 1997 (reported in 18
BLD 558). The Government preferred an appeal by leave
(Civil Appeal No. 79/1999) and the Appellate Division
partly reversed the decision of the High Court Division
by its judgment delivered on 2nd December 1999 (reported
in 52 DLR 82) . The Appellate Division directed the Governmetn
to implement its 12 point directives, including for formation
of separate Judicial Service Commission (JSC) and Judicial
Service Pay Commission to separate the judiciary from
the control of the executive, a long cherished desire
of the people of Bangladehs. |
| Implementation
of the Judgment in Masder Hossain Case |
| Since the judgment was pronounced by
the Appellate Division in 1999, the successive governments
took 23 adjournments to implement the judgment on various
plea up to February, 2006.During these 7 years time, the
government took very slow steps towards the way of separation
of judiciary. |
| The present Caretaker Government from
the very beginning adopted a positive and firm outlook
with a determination to separate the judiciary from the
executive based on the constitutional directive principles
and Appellate Division's judgment in the Masder Hossain's
Case. Accordingly 4 service rules namely (a) Bangladesh
Judicial Service Commission Rules, 2007, b) Bangladesh
Judicial Service (Pay Commission) Rules 2007, (c) Bangladesh
Judicial Service Commission (Construction of Service,
Appointments in the Service and Suspension, Removal &
Dismissal from the Service) Rules, 2007 and (d) Bangladesh
Judicial Service (Posting, Promotion, Grant of Leave,
Control, Discipline and other Condition of Service) Rules,
2007 have been enacted and changes were bought in the
existing Code of Criminal Procedure 1898 by Ordinance
No II and No. IV of 2007. This is considered to be a major
change paving the way for dispensation of Criminal Justice
at the level of magistracy by the officers belonging to
Bangladesh Judicial Service and thereby removing all impediments
in the separation of Judiciary from the executive control.Finally
the historic journey of the judiciary separated from the
executive started functioning from 01, November 2007. |
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