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September 26, 2004

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The problems of separation of judiciary from the executive

S.M. Matiur Rahman

The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. So far many erudite articles written by highly intellectual persons of the relevant fields were published in the leading newspapers of our country. But those intellectual exercises have gone unheeded so far. There were of course commitments of the political parties every time before the elections were held. We must seek the reasons why this very important organ of the state has so far not been given the shape as enunciated in the sacred constitution where the nation has solemnly affirmed for an independent judicial system.

Of the total people constituting the electorate of our country, I am sure, more than 10% voters do not know what actually is meant by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions we should have at least an average knowledge of our present judicial system. I shall be mainly dealing with the administration of criminal justice in the lower judiciary, which runs from Magistrates of the third class to the courts of the Sessions Judge in different districts throughout the country.

A district Judge has two capacities: As a District Judge he acts as the final adjudicator of civil matters in a division which coincides with an administrative district and as a Sessions judge he acts as the chief judge of all criminal matters in a division which also coincides with an administrative district. The gamut of the civil laws is vast. It includes family laws such as marriage, divorce, maintenance, inheritance and succession etc. It also includes the law of property such as ownership, rights or enjoyment, partition, transfer, acquisition, tenancy, rents etc. The law of contract also comes within the jurisdiction of a civil court. The Civil Procedure Code 1908 is the most important Statute Book followed by the Civil Courts. On the other hand the Criminal Courts conduct trial of criminal cases and punish the offenders. Normally the criminal offences are defined and their punishment prescribed in the Penal Code 1860. During this one century and a half many new offences have cropped up in our society and in consequence thereof, many new statutes had to be enacted by the acts of Parliament for keeping the society in order and to ensure safety and security of the people. The Code of criminal Procedure, 1898 is the principal book on the procedure of trial in the criminal courts and the Evidence Act, 1872 contains the rules of taking and sifting evidence, admissibility and relevancy of papers documents etc.

Now in this article we like to examine the question of the separation of the judicial organ of the state from the executive organ. In the sacred constitution of our Republic very great emphasis has been laid on the necessity of separating the judicial organ from the executive organ. " The State shall ensure the separation of the judiciary from the executive organs of the State." Article-22 of the Constitution. Although it is included in part II " Fundamental principles of the state policy." There is no reason why this provision should not be treated as a mandatory provision and should not be taken as a fundamental responsibility of the State. We have entered upon the 33rd year of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have set up a democratic government. But we have so far made little progress in practising parliamentary culture. Our leadership instead of guiding the nation toward setting up a strong parliamentary democracy has so long been engaged in the politics of mutual hatred and vengeance. Tolerance and respect for opposition party is now foreign in our politics. Such intolerance and enmity between political parties have adversely affected the nation as a whole and virtually has divided the nation into some groups antagonistic to each other. This inimical attitude of our political parties has not only polluted the politics of our nation but has created groupings among public servants in general and bureaucrats in particular. Of late the highest judiciary has reportedly been politicised.

In any civilised state the judiciary is the last shelter for the people to seek relief against offenders and wrong doers. Now, because of this antagonism in the political parties the people even of the grass-root level have lost confidence in the total judicial system. For example, if a man, known to have no allegiance to the party in power, is entangled in some litigation, it is widely believed that he is not going to get justice from the court. Because the stronger party with the blessings of political channels finds it easy to manipulate the situation in their favour. Such belief has taken its root from the fact that the lower judiciary starting from a Magistrate of the third class and to the court of the District and Sessions Judge is administratively under the direct control of the executive branch of the Government formed by the major political party * (Article 115 of the constitution: Appointments of persons in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.) It is noticeable in this article that the President while exercising this power is not required to consult the Chief Justice of Bangladesh. We know that the President cannot exercise his powers whatever, without the advice of the Prime Minister, except of course his power to appoint the Prime Minister. This is how the executive organ of our state is controlling the judiciary. Their appointments, postings, transfers, promotions. punishments etc. are at the hands of the President or for that matter, the government. It is true like day- light that the governments established since after the ouster of the autocratic regime in 1991 have worked with partisan spirit and not with neutral attitude to the people and the public servants. We have a British style of permanent and neutral bureaucracy and not a 'spoils system' like that of the United States. But the neutrality of the public servants in our stagecraft is now a history.

Separation of the judiciary from the executive organ is of utmost importance in any democratic system of the government. In our existing system the lower judiciary is under the executive organ of the state as has been stated in the foregoing paragraph. Demand of the people for separation of the judiciary from the executive is a very old demand. During Pakistan regime this matter got little or no attention. Although the central Government of Pakistan had no interest at all to leave the judiciary to work independent of the executive control, the people of the then East Pakistan had shown great interest in matters of the separation of judiciary. After a long exercise in 1956 the East Pakistan Assembly had passed an Act known as the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957, incorporating a complete separation of the judiciary from the Executive. (East Pakistan Act No. Xxxvi of 1957). But due to the executive disinclination and reluctance the notification required to put the law into operation was never issued. The lower judiciary headed by the District and Sessions Judge and manned by other judges and the magistrates is perhaps the beehive in the whole realm of the administration of justice. The political authority in an unholy alliance with the top executives does not like to get this beehive out of their hands. But it will be too let when they will have to do it.

The High Court Division of the Supreme Court of Bangladesh in a judgement directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But the government has so long remained heedless and negligent to the High court Division's directives. When the government itself does not honour the highest court of the country, how can the people in general confide in the judicial system and such underhand practice? It is strongly felt everywhere that immediate steps are taken for separation of the judiciary from the executive organ of the state. It is recommended that: (1) an independent Judicial Service Commission be constituted to recruit judicial magistrates and asst. judges(.2) an independent anti-corruption commission should be constituted with a serving High Court judge as its Chairman.(3) And such other steps as will be required for securing complete independence of judiciary.

It may not be out of place here to mention that the sub-continent of India had been under the British colonial rule for about 200 years and it was ruled by the same acts, rules, regulations etc. India completely separated their judiciary from the executive organ in 1974. To my knowledge even Pakistan did it in 1973. But unfortunately in a small country like ours the government finds an insurmountable problem to handle this matter, which is of the greatest public interest.

The author is formerly Chief Metropolitan Magistrate, Chittagong.

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