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“The higher judiciary is expected under the

constitution to supervise the administration of the


lower judiciary
Rubaiyat Saad Majid
North South University

Introduction:
After many years of false promises and void words of assurance that were never followed
through with action, the subordinate judiciary was finally separated from the executive on
November 1. Judiciary1 is one of the indispensable organs of an independent sovereign
nation state. The judiciary is viewed as the last resort for getting justice from time
immemorial from pole to pole.

A judiciary independent of executive’s control is a prime prerequisite for the


establishment of rule of law, which, in turn, is a fundamental tenet of democracy.

Article 35(32) of our Constitution provides that –"Every person accused of a criminal
offence shall have a right to a speedy and public trial by an independent and impartial
court or tribunal established by law."

The court identified 5 (five) conditions of judicial independence those are security of
judicial possession; Security of judicial salary; Institutional independence of subordinate
judiciary; Judicial arrangements by separate Judicial Service Commission; and
Administrative independence and financial autonomy of judiciary.

Definition of judiciary:
Judiciary is the system of law courts that administer justice and constitute the judicial
branch of government. This system is comprised of a Supreme Court, Circuit courts of
general jurisdiction, and Lower courts of limited original authority.

The judiciary has been defined as the last resort of the common people. The judiciary has
been the major recourse of the human rights community in the enforcement of human
rights.

1
See Cardozo, Benjamin N. (1998). The Nature of the Judicial Process. New Haven: Yale University Press.
2
Right to protection of law- To enjoy the protection of the law, and to be treated in accordance with law, and only in
accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the
time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of
any person shall be taken except in accordance with law.

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At the peak of the country's judiciary structure stands the Supreme Court. It consists of
the High Court Division and the Appellate Division3. The Supreme Court serves as the
guardian of constitute and enforces the basic rights of the citizens.
Subordinate courts exists at district and Thaana levels as well as special and tribunal
courts such as the Administrative Tribunal, Family Courts, Labor Tribunal, Land,
Commercial, Municipal and Marine Courts. Chief justice adorned the highest position in
judicial system who is appointed to the office by the Governor from five appointment
districts.

Judicial independence:
Judicial independence is the doctrine that decisions of the judiciary should be impartial
and not subject to influence from the other branches of government or from private or
political interests. In most cases, judicial independence is secured by giving judges long
tenure, and making them not easily removable.

The judiciary became independent of the executive on 1st November with 218 judicial
magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending
with the magistrate courts. On 31 October, the day before the judicial separation was
implemented, many people across the country rejoiced as the official formalities were
concluded to give effect the separation the following day. As per the constitution (article
115 and 116)4 the appointment and control of judges in the judicial service or as
magistrates exercising judicial duties be made by the president

History of judicial independence:


However, instead of separating the judiciary which was now not only a constitutional
obligation for the government but also a legal compulsion following the judgment in the
Masdar Hossain case, there was more foot-dragging by the then government. The
implementation of this condition was delayed almost 28 times ever since the directives
were issued.
But unfortunately no government since 1972 when the constitution was framed ever took
steps to effect the separation. 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 Caretaker Government (CG)5 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
3
See Gavin Drewry, Louis Blom-Cooper, Charles Blake, The Court of Appeal (Hart Publishing 2007)
4
Appointments to subordinate courts and Control and discipline of subordinate courts in the constitution of Bangladesh.
5
In the parlance of institutional government, a caretaker government is one which normally takes care of state administration for an
interim period until the regular new government is formed. In established parliamentary system, there is a convention of
transformation of the outgoing government into a caretaker government for the time being before the holding of general election.

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was pronounced, but in this long period three consecutive governments respectively have
only sought 22 extensions of time.

Finally the last CG in a landmark move on January 16, 2007 published the gazette
notifications of four rules relevant to separating the judiciary from the executive.

Ending all conjectures concerning smooth transition, the judiciary has finally been made
an independent organ from November 1. This is undoubtedly a milestone that has been
achieved to advance and ensure greater judicial independence and thereby establish rule
of law in the country.

Judicial Independence in Bangladesh:


Apparently, judicial independence often begins as a contradict voice, and always requires
observant protection. Independence of judiciary6 means a fair and neutral judicial system
which can afford to take its decision without any intervention of executive or legislative
organ of the government. Independence of judiciary truly means in accordance with their
own sense of justice without submitting to any kind of pressure or influence is 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.

According to the rules and the amended Code of Criminal Procedure, the country had
from 1st November two sets of magistrates judicial and executive to deal with different
functions. The country will also have separate criminal courts which are courts of
sessions and of magistrates as well as all of them will be run by judicial officers.

It is impossible to ensure the rule of law, upon which other human rights depend, without
providing independent courts and tribunals7 to resolve disputes independently. The
complete independence of judiciary is the first major step in the process of its
development.

The need for separation:


A state is primarily comprised of three organs- the executive, the judiciary, and the
legislature. The legislature refers to parliament, which is responsible for making laws.
The judges, courts and the trail events are together called the judiciary, which ensures
that the laws are adhered to by the government and the citizens of the state.

It may be evident why the political parties delayed the process for so long from the fact
that the judiciary, especially the lower judiciary, was used by the parties in power for
their self-interests. ‘The reining political party often uses the judicial system, to harass
the opposition party.

6
Hossain Mollah1 Awal, Separation of Judiciary and Judicial Independence in Bangladesh, August 2007.
7
david, walker (1980), Oxford Companion to Law, Oxford University Press, pp. 1239

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Article 228 of the constitution of independent Bangladesh says, "The state shall ensure
the separation of the judiciary from the executive organs of the state.”

Theoretically, absolute separation of the three organs of the state is essential in ensuring
that the executive cannot practice dictatorial powers over the others.
Yet, the Westminster model of government that has been adopted by our country does not
have the complete separation of powers, as members of the executive are taken from the
majority party in the legislature.
The judiciary, however, even under the Westminster model9, is meant to be completely
separate from the executive and not under the control of the latter for it to be able to
ensure that the executive does not overstep its constitutional and legal boundaries and
that the citizens are dispensed justice, neutrally and independently.

Impacts of judicial independence:

The accumulation of cases continues although the rate of disposal of cases has increased
following the separation of the judiciary from the executive.

Not that the separation of the judiciary from November 1 last year has not yielded
settlement. The rate of disposal of cases after the separation has gone up from about
1,200 per month to 55,000 per month10. But more criminal cases were filed than were
inclined of every month due to which the piles of cases keep rising. The problem thus lies
in shortage of manpower and logistics.

The judiciary finally embarked on a historical journey as it comes out of the control of
the executive organ of the state. The judiciary became it journey independent of the
executive with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four
lakh criminal cases pending with the magistrate courts11. Six hundred and fifty-five posts
of judicial magistrates have been created to meet the demands of the courts in districts.

The much-demanded completion of the separation of the judiciary is now expected to


ensure justice without any hindrance as in the past when justice often used to be delayed
and the judiciary process controlled by the government. The magistrate courts across the
country came out of the executive control and continue operating under the authority of
the Supreme Court (SC).

8
Article 22 (Part II, Fundamental Principles of State Policy); Halim, M.A. 1998. Constitution, Constitutional Law
and Politics: Bangladesh Perspective. Dhaka: Rico printers.

9
Simon James, British Cabinet Government, Pub Routledge, 1999.
10
See Supreme Judicial Commission needs readjustment by M. Jashim Ali Chowdhury on May 10,2008
www.thedailystar.net/law/2008/05/02/opinion.htm
11
p4 and p18, Nicholas, Barry, An Introduction to Roman Law (Oxford University Press, 1975)

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After the separation of the judiciary, the rate of disposal of criminal cases in the courts of
magistrates increased by 51 per cent in December 2007 in relation to the cases
predisposed of by the judicial magistrates in November 2007.

Recommendations:

Finally, if the real flavor of independence and separation of judiciary is to maintain, then
proper logistic hold up has to be available to the judges. There should be reshuffling of
the status through modification of the present 'warrant of precedent' 12 system. The
prolonging meager tradition of isolation of judicial officers should be eliminated with
self-sanction of judgeship, ethics and morality. The horizontal and vertical avenue of
higher education, various training, scholarship, intellectual publications, participation in
workshop, seminar etc. should be made available for the judicial officers. After all,
patriotism, self-sanction and accountability of the judicial officers to the citizens are
conditions precedent to retaining the prolific renaissance of the judiciary.

Higher degree of value system should be made-up through combined Endeavour of the
decision makers of the higher judiciary where the lower judiciary should be consulted as
a matter of right. The government was unable to establish the due to a lack of funds.
Nobody can disagree with that there is a need for the progress of an ethical framework in
our entire legal and judicial arena. For the long time benefit of the society, in general and
the legal and judicial professions, in particular, there is no other substitute but raising the
conscience of our legal and judicial professionals with regard to ethics, professional
responsibility as well as accountability.

If any government in future wants to establish secretariat because it is one of the essential
elements of independent judiciary only then the higher judiciary can monitor and control
the lower judiciary in an organized manner.

Conclusion:
12
See W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D. Dissertation at Claremont
Graduate School)

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The rule of law and division of powers not only constitute the pillars of the system of
democracy but also open the way to an administration of justice that provides
guarantees of independence, impartiality and transparency. These guarantees are
widespread in extent.

We are toward the inside of a new age. What we will have is a cautious understanding
that will need the support and collaboration of every branch of government. It is up to us
to ensure that this separation does not become a token gesture. This measure contains real
assurance. It has to be supported not because it has been decided and endorsed by the
highest Court but because it contains the possibility of people being able to realize their
legal and human rights13according to the due process of law.

Reference

1. Montesquieu, the Sprit of the Laws bk. 11, ch. 6, at 160 (Anne M. Cohler et al.
trans. & eds., 1989) (1748).

2. Scott D. Gerber, The Political Theory of an Independent Judiciary, 116 Yale L.J.
Pocket Part 223 (2007),

3. Bari, H 3. .M. Fazlul. 2004. Separation of Judiciary How long will it take?
Retrieved from: http://www.thedailystar.net/law/2004/08/04/vision.htm.

4. Hoque, K.E. 2003. Judiciary, In Banglapedia. 6,Dhaka: Asiatic Society of


Bangladesh.

5. Rahman, Mizanur. 2000. Governance and Judiciary. Governance: South Asian


Perspective (Eds. Hye, Hasnat Abdul). Dhaka: University Press Ltd.

6. Hadley, Sierd. 2004. Separation of Judiciary and Judicial Independence in


Bangladesh.

13
Köchler, Hans. (1990). "Democracy and Human Rights". Studies in International Relations, XV. Vienna:
International Progress Organization.

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7. William Michael Treanor, Original Understanding and the Whether, Why, and
How of Judicial Review, 116 Yale L.J. Pocket Part 218 (2007).

8. "Social justice advocate receives honorary doctorate" The University of


Queensland, News Online. - 13 December 2005 - Retrieved 20 October 2006.

9. James, R.W. and Fraser, I. Legal Issues in a Developing Society. Waigani, NCD:
Faculty of Law, University of Papua New Guinea, 1992.

10. Adam Przeworski, JM Maravall, I NetLibrary Democracy and the Rule of Law.

11. The Constitution of Bangladesh. Part- 3, Article- 26 to 47A

12. Publication of Judicial Decisions and Availability of Law Reports in the


Asia/Pacific Region” delivered to the 10th Conference of Chief Justices of Asia
and the Pacific Conference, Tokyo, 2003. (2004) 13(4) Journal of Judicial
Administration 201

13. Judicial Independence and Judicial Corruption: Further Developments” delivered


to the 10th Conference of Chief Justices of Asia and the Pacific Conference,
Tokyo, 2003. Yearbook of the International Commission of Jurists 2004 p 303.

14. www.wikipedia.com

15. www.banglapedia.com

16. www.prothom-alo.com

17. www.ittefaq.com

18. www.google.com

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19. www.bangladeshlaw.org/news-contents.

20. www.helplinelaw.com/lawyers/international/bangladesh-lawyers

21. www.newagebd.com

22. www.thedailystar.net

23. www.bangladeshinfo.com

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