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Thursday, November 1, 2007
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Judiciary freed from the executive fetters today

CA to declare formal separation for ensuring justice for all

The judiciary finally embarks on a historical journey today as it comes out of the control of the executive organ of the state.

The much-demanded implementation 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 come out of the executive control today and continue operating under the authority of the Supreme Court (SC).

Chief Adviser Fakhruddin Ahmed will inaugurate the Dhaka District Judicial Magistracy and the Dhaka Metropolitan Magistracy at 10:30am today at the Bangladesh-China Friendship Conference Centre.

Lawyers across the country will observe the day as the Judiciary Separation Day.

However, while the separation nourishes big hopes, a few lower court judges told journalists yesterday that to make the separation meaningful cooperation is necessary from all sections of people, especially the police and administration.

The constitutional provision could be implemented much earlier had the successive political governments worked with goodwill. A non-partisan caretaker government is now implementing the provision for separation of the judiciary following the 12-point directive of the Supreme Court given in 1999.

The SC directive came following filing of a case--popularly known as Masder Hossain case--in 1995 by 440 members of the lower tier of the judiciary.

Masder Hossain, who is now inspector general of registration, yesterday said, "Oppressed people suffered a lot of harassment for getting justice. I only wish with the implementation of the separation justice seekers will get fair justice swiftly without spending much money."

Law Commission Chairman Justice Mostafa Kamal, who was the chief justice when the SC gave its directives, yesterday told The Daily Star, "The caretaker government has been able to launch the primary work of separation despite resistances and I congratulate both the caretaker government and the Appellate Division for their accomplishment. At the same time, I cherish the hope that the distribution of work among all kinds of magistrates will follow the directions of the Appellate Division. No one wants a clash."

LAST DAY OF EXECUTIVE JUDICIARY

Hundreds of executive magistrates yesterday performed their final judicial duties at the magistrate courts across the country while 218 judicial magistrates start their duties today.

Newly appointed Chief Metropolitan Magistrate (CMM) AKM Enamul Haque along with nine judicial magistrates took over the charge of the Dhaka magistrate courts from outgoing CMM magistrate Tariqul Islam. A total of 91,000 criminal cases have been pending with 25 magistrate courts in Dhaka.

SC Registrar Ikteder Ahmed on behalf of the lower court judges told reporters, "Appointment of 655 judicial magistrates has been approved and 218 of them have already been appointed. The Supreme Court appointed 202 judicial magistrates from the sessions judge's courts while the rest joined the judicial service from the administration."

Ikteder also said, "The authorities will welcome if magistrates from the executive wish to join the judicial service on deputation or through absorption."

Ruling out anticipations that the backlog of cases will worsen due to lower number of magistrates, he said, "The executive magistrates used to perform the judicial task on a part-time basis while the judicial magistrates will be performing duties round the clock. So, the cases will be disposed of quickly."

The SC registrar said four lakh cases have been pending with the magistrate courts at present.

He said they have sorted out 2,066 eligible applicants for the vacant posts of judicial magistrate and that the authorities have initiated the process to complete the appointments.

The SC approved withdrawal of the magisterial power of 170 of 173 administrative officials forwarded by the establishment ministry, Ikteder said, adding, "We did not approve withdrawal of the remaining three officials following their willingness to work as judicial magistrates."

Asked if influence of the government or the executive organ would be removed completely from the judiciary, Ikteder said, "Such incidents have never taken place at the district judge's courts. So, it seems that it will not happen in the magistrate courts either after the separation."

He said action will be taken against magistrates if irregularities are found with any one. The district judge's courts, the High Court, the Supreme Court and the law ministry will take the action in a combined way.

Masder Hossain also said, "I hope the nation will get rid of such allegations."

Judicial Service Association President and Dhaka district judge AKM Ishtiaq Hussain was also present at the briefing at the SC.

"Coordination among the judiciary, police and administration is needed to make the judiciary separation meaningful. The separation effort cannot advance if the coordination does not take place," said Ishtiaq.

Ishtiaq explained that the police are responsible for producing a witness before the court in a criminal case while the court issues summons to produce the witnesses. The case cannot advance if the police do not work in accordance with the court order.

Administrative officials are also involved with the case proceedings as the court may ask for documents in both civil and criminal cases or summon people from the administration if necessary.

The provision for the separation of the judiciary from the executive was introduced in the constitution after the country's independence in 1971.

The demand also existed in the then East Pakistan as the 1949 draft constitution of the Awami League had pledged to separate the judiciary from the executive.

The Jukta Front also demanded the separation of the judiciary in the 15th point of its 21-point demand announced on November 4, 1953.

The then provincial legislative passed the law for separating the judiciary in 1957, but no gazette notification was issued to enact the law. In 1958, the Law Commission recommended following the law and bringing judicial magistrates under the direct control of the High Court. It identified coexistence of the judiciary and the executive as the main reason behind delayed disposal of cases.

Article 22 of the constitution of independent Bangladesh says, "The state shall ensure the separation of the judiciary from the executive organs of the state.

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