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August 22, 2004

Separation of Judiciary

How long will it take?

Hussain M Fazlul Bari

In a democratic state, the power rests on three separate organs, namely the executive, the legislature and the judiciary. The constitution of Bangladesh vests the executive power in the executive and the legislative power in Parliament. Though there is no specific vesting of judicial power, it is vested in the judiciary [Mujibur Rahman vs Bangladesh 44 DLR (AD)]. The judiciary comprises all courts and tribunals, which performs the delicate task of ensuring rule of law in the society.

In independent and sound judiciary is since qua non-for a fair society. The judiciary interprets law, settle legal disputes and enforce popular rights. And such independence implies freedom from interference by the executive or legislature in the exercise of judicial power. In a simplier language, it means that the judges are in position to render justice in accordance with their own sense of justice without submitting to any kind of pressure or influence. Part VI of the constitution deals with the judiciary. Bangladesh has a hierarchy of courts in three tiers. In other words, the judges under the constitution may be classified in following heads: The Judges of the Supreme Court, the District Courts Judicial Officers and the Magistrates.

In addition, there are special judges for special acts. The first group satisfies all criteria of independence except economic one. The District Judge enjoys almost substantial safeguard to their independence being mostly under the control of High Court Division of Supreme Court. The magistracy in the weakest and unfortunate feature of our legal landscape. Our subordinate judiciary (chapter II of Part VI) is not independent and beset with multifarious problems. It is the lower judiciary to which most of the people are connected; nevertheless, various shortcomings of magistracy frustrate the very purpose of the criminal justice. The magistrates under exclusive control of the executive are discharging judicial as well as executive functions interchangeably. Again Magistrates having legal training for couples of months are in want of legal acument. In fact, the prime problem of independence and separation of judiciary lies with the Magistrate courts.

The twin function of the Magistrates and also the dependency of the lower judiciary upon the executive is a colonial legacy. After independence in 1947, Pakistan government enacted East Pakistan Act No. XXIII of 1957 which provided for separation of judiciary from the executive. The law is still hanging for a simple gazette notification. As regards independence and separation of judiciary, our constitution of 1972 is fairly developed. But the framers of supreme law of the land made an unfortunate insertion in art. 115 and 116 as 'Magistrates exercising judicial functions' which still remain unamended. Art 22 in unequivocal term states that 'the state shall ensure the separation of the judiciary from the executive organs of the State.' As one of the fundamental principles of state policy. It is not readily judicially enforceable. Nevertheless the state cannot ignore it for long. There was undercurrent of demand of implementation of constitutional obligation from the very inception of Bangladesh. But the Fourth Amendment undermined the constitutionalism itself, which obviously destroyed the independence of judiciary. The subsequent upheavals of politics rather by-passed it. In 1976 law commission recommended that subordinate judiciary on the criminal side should be separated from the executive.

In the mean time, we witnessed two extra-constitutional processes. In 1987, initiatives were taken to separate the magistracy by amending code of Criminal Procedure, 1898. For unknown reason the Bill could not placed before the Parliament. After the fall of autocratic rule in 1990, expectation was high to ensure separation of judiciary. But the next two governments of 1991& 1996 did nothing in this regard except spoiling its tenure. In 1999, the Supreme Court issued 12 point directives in famous Masdar Hossain case to ensure separation of lower judiciary from the executive. The successive governments have taken time again and again to delay the process. It may be recalled that the caretaker government (2001) has taken all measures to ensure separation but stop at the request of AL and BNP two major parties of the country. The BNP leaded coalition government is working very slowly towards separation of judiciary. It is a pleasure that judicial Service Commission and Judicial Pay Commission have been created. It is mentionable, The 22nd & 29th BCS (Judicial) candidates are hanging for long time. Various rules and amendment in the relevant sections of code of Criminal Procedures 1898 are under consideration of Parliament of late the Law. Justice and Parliamentary Affairs Minister announced that it will take additional six years (!) to ensure separation of judiciary. (The Daily Star 20/6/04) this statement is reflective of how indifferent the Government is about separation of judiciary the demand of separation of the judiciary from the executive is universal to ensure the independence of judiciary and safeguard the rights of the people. It is quite unfortunate that the Government is moving towards at shail's pace. It may be noted that Pakistan and India have taken necessary steps to free the judiciary from the executive at all levels in 1973 and 1974 (in West Bengal in 1970) respectively. Ensuring justice and independence of judiciary will remain a far very until lower judiciary is separated from the executive. It is mandatory and constitutional obligation of the Government to ensure separation of the judiciary from the executive. Five years have been elapsed since the Supreme Court gives it directives in Masdar Hossain case. Law Minister is seeking for additional six years in this regard. We can fairly question: How long will it take to ensure separation of judiciary from the executive?

Author is an advocate.