Assignment On

There is No Separation of Judiciary in

Bangladesh

SUBMITTED TO
Barrister Taufiqur Rahman

SUBMITTED BY
Mohammad Shahnewaze
ID NO # 2013-3-95-004
Course name: Legal Environment of Business
Course no: MBA- 512; Section-01

East-West University
Aftabnagar, Dhaka

Introduction
Independence of judiciary is certainly a foundation stone of rule of law, good governance and democratic
practice all over the world. It protects the weak from the powerful; the minority from the majority; the
poor from the rich; yes, even the citizens from excesses of government. However, from time immemorial
the demand for separation of judiciary and judicial independence was a much-debated issue among policy
reformers, democratic thinkers and legal practitioners in Bangladesh. Since, the present judicial system of
Bangladesh is basically a replica of the system introduced by British rulers and the rulers of the early
historical periods including British and Pakistan always attempted to control the judiciary through
different mechanisms, which include the appointment, tenure and discipline of judges. Therefore, the
practice of executive interferences over judiciary is still continuing in Bangladesh.

Meaning of independence of judiciary

In general, independence of judiciary means the freedom of judges to exercise judicial powers without
any interference or influence. In other words, independence of judiciary means a fair and neutral judicial
system of a country, which can afford to take its decisions without any interference of executive or
legislative branch of government. It requires that judges should not be subject to control by the
government or by any one rather they should enjoy protection from any threats, interference or
manipulation which may either force them to unjustly favor the government or subject themselves to
punishment for not doing so (Larkins, 1996, p. 44). A comprehensive definition of judicial independence
has been given by Green (1985, p. 135) as below:
The capacity of the courts to perform their constitutional function free from actual or apparent
interference by, and to the extent that it is constitutionally possible, free from actual or apparent
dependence upon, any persons or institutions, including, in particular, the executive arm of
government, over which they do not exercise direct control.
In this study, independence of judiciary means 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 executive or legislative or from the parties themselves or from
their superiors and colleagues (Halim, 1998, p. 299).

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 (Bari, 1993, p. 2). These principles are:
(1) personal independence;
(2) substantive independence;
(3) independence; and
(4) Collective independence.
The followings are the elaborated version of these four meanings of judicial independence

Personal independence
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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 (Akkas, 2004, p. 22). In the words of Shetreet and
Deschenes (1985), the terms of judicial service including transfer, remuneration and pension entitlements
should not be under the control of the executive government and the tenure of judges should be granted
until a mandatory retirement age. Basically, these are the essential conditions to ensure that an individual
judge may exercise judicial role without fear or favor, friendliness or ill will (Malleson, 1999). Therefore,
to keep the administration of justice in a fair and impartial platform, a judge should be placed in a
position where he/she has nothing to be defeated by doing what is right and little to gain by doing what is
wrong (Dawson, 1954). This position can be guaranteed by ensuring the individual independence of a
judge.

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. The substantive aspect of the duties of a
judge is the actual decision-making role. 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 (Shetreet and Deschenes, 1985, p.
630). Therefore, it ensures the impartiality of judges and their capacity to make judicial decisions on the
merit of cases, without any fear or favor (Geyh and Tassel, 1998). In determining the minimum standards
of judicial independence the International Bar Association suggested in 1982 that in the discharge of his
judicial function a judge is subject to nothing but the law and the commands of his ethics (Akkas, 2004, p.
22).

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
The independence of individual judges may be undermined not only by the outside sources of interference
but also by fellow judges, particularly by senior judges using their administrative power and control
(Russell, 2001). This means that threat to internal independence may come from the superior courts or
judges. In addition, internal independence covers the process of pronouncing judgment that is the actual
decision-making process. Hence, the internal independence of a judge is relevant to both the procedural
and substantive aspects of judicial duties. The procedural duties include the examination of witnesses,
recording of evidence and disposal of interlocutory matters that are integral parts of the decision-making
process (Akkas, 2004, p. 24).
In the common law system there is provision that lower courts must follow the decisions of superior
courts, which may influence the judgment of lower courts. For example, an appellate court has the power
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to remand a case back to a trial court for rehearing. In the order for such a remand the appellate court may
direct the issue or issues to be tried in the case or may give such other directions as are required to do
justice (Akkas, 2004).

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 this 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 (Shetreet and Deschenes, 1985). This facet of judicial
independence has a great impact on the individual independence of judges. A judge may not be able to
exercise judicial function independently unless he or she is a part of an institution with authority over
those human and physical resources incidental to (necessary for) performing judicial functions (Millar
and Baar, 1981). So, collective or institutional judicial independence is necessary to ensure the individual
independence of judges (Winterton, 1995, p. 15). In addition, collective or institutional independence is
linked with court management, which includes assignment of cases, control over administrative
personnel, maintenance of court buildings and preparation of judicial budgets and allocation of resources.
The Montreal Declaration 1983 and the Beijing Statement 1995 emphasize that the main responsibility
for court administration should be attached to the judiciary (Akkas, 2004). Therefore, collective
independence is indispensable for judicial independence.

Separation of judiciary Bangladesh

As a sovereign state Bangladesh adopted its 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, which are as follows:
(1) The government may by notification appoint some particular magistrates at each station exclusively
for judicial work so 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.
(2) 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).
(3) The final stage was about to complete separation of judiciary from executive and an integrated
judicial service under the control of the High Court Division. Though, the recommendations were
very crucial and appreciable for an independent judiciary but no initiative was taken to implement
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these recommendations by the then government. 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.
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 (reorganization) 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.
The case came up for hearing on 13 June 1996. However, the then government prayed for time and
ultimately hearing 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. It is important to note that the caretaker government (2001)
expressed their desire to separate judiciary from the executive but did not do separation after the request
of two major political parties (Hadley, 2004). 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 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 Hossains 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 Nos II and IV of 2007.
Finally the historic journey of the judiciary separated from the executive started functioning from 1
November 2007.

Independence of judiciary in Bangladesh

In the context of Bangladesh here we are trying to analyze independence of the judiciary both
individually and collectively under the classification of four categories such as:
(1) Appointment of the judges;
(2) Tenure of the judges;
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(3) Discipline of judges; and

(4) Institutional independence of the judiciary.

Appointment of judges
The basic principle of judicial independence requires that in administering justice judges should remain
free from all kinds of direct or indirect interferences or influences. Impartial judges and a fair justice
system are also the basic requirements of rule of law and natural justice. However, without impartial and
fair selection and appointment of judges fair judgment is impossible. Therefore, appointment of judges is
one of the basic requirements of independence of judiciary. In Bangladesh in terms of the eligibility
criteria for appointment, judges of both the Supreme Court and subordinate courts can be classified as
career judges and non-career judges (Akkas, 2004, p. 131).
Public Services Commission previously recruited career judges but recently after separation of judiciary
from the Executive Judicial Service Commission (JSC) is assigned for recruiting career judges. Career
judge means those judges who belong to the judicial service in Bangladesh and initially appointed as
assistant judges at the subordinate judiciary. On the basis of job experience and seniority assistant judges
can be promoted to the posts of senior assistant judges followed by joint district judges, additional district
judges and district judges. Furthermore, district judges are eligible to be appointed as Supreme Court
judges having at least ten years of experience.
On the other hand, non-career judges in Bangladesh are classified into two categories:
(1) Public servants exercising judicial power; and
(2) Practicing lawyers appointed as judges.
Public servants of the executive branch (assistant commissioners, additional deputy commissioners and
deputy commissioners) are appointed to the subordinate judiciary for trying criminal cases. Judges of
criminal cases are of two kinds session judges and magistrate. Public servants are eligible only for
magistrate courts.
In Bangladesh, practicing lawyers are commonly known as advocates. Presently, advocates of Supreme
Court having professional experience for a period of not less than ten years are eligible to be appointed
directly as judges of Supreme Court.
In Bangladesh three basic principles are followed for appointing judges in Supreme Court and
subordinate courts that include: seniority, merit and quota. Out of three, the most practicing criteria are
seniority. However, the principle of seniority is not always strictly followed in appointing judges. For
example, in 2004 Justice Syed J.R. Mudassir Husain of the Appellate Division of the Supreme Court was
appointed the 14th Chief Justice of Bangladesh bypassing Justices M. Ruhul Amin and Mohammad
Fazlul Karim, two senior judges of the Appellate Division. Similarly, in 2008 President Prof. Iazuddin
Ahmed appointed Justice Mr M.M. Ruhul Amin as the 16th Chief Justice of the Supreme Court of
Bangladesh by superseding Justice Mohammad Fazlul Karim, who was then the senior most amongst the
Appellate Division judges. However, under Articles 14 and 16 of the Constitution (Fourth Amendment)
Act 1975, the requirement of consultation with the Chief Justice was omitted by amending Articles 95 and
98 of the Constitution. From 1991 by the Constitutional (12th Amendment) Act the President may appoint
the Chief Justice but in appointing other judges of the Supreme Court, he or she is bound to act on the
advice of the Prime Minister and there is no constitutional obligation to consult with the Chief Justice
(Akkas, 2004, pp. 147-8). So, ultimately Prime Minister as the chief executive of Bangladesh exercises
the crucial role in appointing judges of Supreme Court through his/her titular President. Although
conventionally, Chief Justice is consulted before appointing High Court judges, such requirement is
neither mandatory, nor was often effectively followed in recent decades. Therefore, from the above
discussion it apparently seems to us that there is a culture of supersession in appointing and promoting
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judges in the Supreme Court, including the appointment of the Chief Justice of Bangladesh. The judges
are appointed and promoted by political or executive choices instead of their seniority and merit
principles in service. This endorses injustice within the judiciary and makes rooms for further injustice to
be melted out against the citizens of Bangladesh.

Tenure of judges
The tenure of judges is another fundamental aspect of judicial independence that is closely connected
with judicial appointment. When a person is appointed as a judicial officer, the next essential question is
whether the tenure of his/her office or job is adequately secure or not? If the tenure of judges is not
secure, they may be subject to discipline or removal in an arbitrary manner. So, the principle of
independence of judiciary requires that the tenure of judges should be adequately secured. In order to
ensure the administration of justice neutrally, fairly and fearlessly judges should have a guarantee that
they will not be subject to discipline or removal because of their decisions or the exercise of arbitrary
discretion of the appointing authority (Akkas, 2004, p. 169). If the tenure of judges depends upon the
pleasure of the executive authority, judges do not become free from the panic of arbitrary removal. In this
circumstance, judicial power might be exercised by judges with a view to satisfying the authority that has
the power to terminate their service (Friedland, 1995, p. 2).
Another aspect of tenure is practiced all over the world that minimum or mandatory retirement age which
has adverse effect that some judges, who are elderly but competent to continue in office, are bound to
retire from office (Oliver, 1986, p. 814) and this condition also abuses for ill political motive by the
government. On the other hand, the extension of judicial service based on the logic that it is useful to
reduce the backlog of cases by using experienced retired judges who are elderly, but capable of
continuing if office. However, this practice opens the door for abuse the power of extension and may
exercise it for their own ends, with adverse effects on judicial independence (Shetreet and Deschenes,
1985). Beside this, a judge who sees a government, as a prospective future employer might be tempted to
give it favored treatment (Wood, 1996, p. 40). This practice undermines the independence of the judiciary.
Therefore, the practice of extension beyond retirement or re-employment of retired judges should be
avoided.
In Bangladesh the original Article 96 of the Constitution of Bangladesh provides a guaranteed tenure of
office for Supreme Court judges up to their mandatory retirement at the age of 62 years. However, it was
amended several times for instance first changed by the Second Proclamation (Seventh Amendment)
Order 1976 and retirement age for Supreme Court judges was fixed at 65 years and 62 for High Court
judges. Furthermore, the Second Proclamation (Tenth Amendment) Order 1977 which re-established the
Supreme Court judges comprising the Appellate Division and High Court Division, and fixed the
retirement age at 62 years for all Supreme Court judges. As a result, some judges of Supreme Court who
were to retire at the age of 65 years, for examples, Justice Debesh Chandra, Justice Ahsanuddin
Chowdhudry and Justice Mahmood Hossain were bound to retire before age of 65 years. The incidences
of removal of judges of Supreme Court happened during the second Martial law in Bangladesh from 1982
to 1986. During this period some judges of Supreme Court (e.g. Justice K.M. Subhan, Justice Abdur
Rahman Chowdhury and Justice S.M. Hossain) were removed from office without showing any reason
and only by dint of Martial law order (Chowdhury, 1990, p. 164). Furthermore, by the Constitutional
(Seventh) Amendment Act 1986 the retirement age was again increased to 65 years for all Supreme Court
judges. Consequently, Chief Justice F.K.M.A. Munim held office for about eight years. Similarly, the
additional judges of the High Court Division do not have adequate security of tenure (Akkas, 2004, p.
183). The incidents mentioned above clearly shows that the tenure of Supreme Courts judges are nor
secured adequately which is a mandatory prerequisites of independent judiciary.
The tenure of the judges of subordinate courts continues till a mandatory retirement age of 57 fixed by
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section 4 of Public Servants (Retirement) Act 1974. However, under Article 134 of the Constitution, the
tenure of subordinate court judges depends upon the pleasure of the President of Bangladesh. Article 134
provides, except as otherwise provided by this Constitution every person in the service of the Republic
shall hold office during the pleasure of the President. Since judicial service is also public service or
service of the Republic of Bangladesh and subordinate judges are initially recruited by Public Service
Commission similar to other civil services, the tenure of subordinate judges are also dependents upon the
pleasure of the President. Therefore, subordinate judges may be forced to retire before attaining the
mandatory retirement age simply by misusing the public interest clause, which is not clearly defined in
Public Servant (Retirement) Act 1974. For example, on 30 July 2009 the Government of Bangladesh
issued a notification that President of Bangladesh forced two judges into retirement who were the
President and General Secretary of the Bangladesh Judicial Service Association. The notification revealed
that in order to maintain discipline in the public service, the government sent two judges into retirement
in accordance with the section 9(2) of the Public Servant (Retirement) Act, 1974
Even, though, the Judiciary of Bangladesh has been officially separated on 1 November 2007 but the
executive interference is still continuing like past which undermine the judicial independence and fair
justice in Bangladesh. So, the tenure of judges both in higher and lower judiciary in Bangladesh is not
adequately secured. But such security is very essential for judicial independence.

Discipline of judges
Discipline of judges is closely related to judicial accountability and there is a relationship between
judicial accountability and judicial independence. Without proper control or accountability judiciary may
be arbitrary. On the other hand in the name of accountability or control if the assigned authority interferes
or intervenes unnecessarily it would be a threat for judicial independence. Therefore, setting up of
appropriate mechanisms for the judges is essential to ensure their accountability.
In Bangladesh the Constitution lays down provisions for the discipline of Supreme Court judges. Under
Article 96 of the Constitution judges are subject to removal for misconduct and incapacity (both mental
and physical), however, there is no Constitution provisions for corruption and criminal offence. Beside
this, there is a provision under Article 96(4)(a) of the Constitution that the Supreme Judicial Council is
empowered to prescribe a code of conduct to be observed by all judges of the Supreme Court. For
instance in 2000 the Supreme Judicial Council prescribed a code of conduct for Supreme Court judges,
when several High Court judges were embarrassed to hear Bangbandhu Murder Case.
As per the provisions of Bangladesh Constitution (1972) Parliament was empowered to remove judges of
Supreme Court on the ground of proved misconduct or incapacity. However, the provision of Constitution
has been changed from time to time and under the current system, the President may remove a Supreme
Court judge on the basis of a report of Supreme Judicial Council. Since the President is bound to act on
the advice of the Prime Minister in accordance with the provision of Article 48(3) of the Constitution.
Therefore, the disciplinary actions in Bangladesh are ultimately dependent on executive branch of the
government where political will of the executive may play a crucial role while taking disciplinary action
against judges. So the mechanism for disciplining judges of Supreme Court is contradictory to the
concept of independence of judiciary. Similar to Supreme Court the discipline of subordinate courts was
exclusively vested in the Supreme Court.
However, the provision has changed through amendments of Constitution from time-to-time. Under
present system of government, President is the sole authority for all disciplinary actions. However, in
practice, the executive government consults with the Supreme Court in disciplining persons employed in
the judicial service but in the case of magistrates, the executive does not consult with the Supreme Court
(Akkas, 2004, p. 237). Moreover, there is no specific method or procedure for making grievances or
complaints against a contravening judge. As a result, it is almost impossible for the general public to file a
complaint against a judge for incapacity or misconduct, particularly for corruption (Akkas, 2004, p. 241).
Furthermore, an inquiry officer or a board appointed by the Ministry of Law, Justice and Parliamentary
Affairs, conducts the investigation of a complaint against a judge that is the executive government.
Therefore, there is a strong possibility of interference from the political executive through which the
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executive can abuse the system of discipline.

Institutional independence
Institutional independence is known as collective independence of judges. This actually means
independence of the judiciary as an institute. In the context of Bangladesh, though there is a strong
provision in Bangladesh Constitution as enumerated in Article 22 that the state shall ensure the separation
of the judiciary from the executive organs of the state. However, until on 1 November 2007 it was not
separated from the executive. In following section attempt has been made to explore the present state of
separation of the judiciary from the executive and judicial independence in Bangladesh.

Conclusion
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. Here, 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. In British period the judiciary was not separated and independent from the interference of
executive as a result the judiciary was not strong enough to control and hold government officials
accountable to the legal system of Bangladesh. So it can be say that despite separation of judiciary still
the interferences of executive are continuing.

References
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