Independence of judiciary means a fair and neutral judicial system which can afford to take its decision without any interference of executive or legislative organ of the government. The concept of separation of judiciary from the executive refers to a situation in which the judicial branch of the government acts as its own body free from intervention and influence from the other branches of the government particularly the executive. If the same individual assumes the functions of both executive and judiciary the necessary check and balance disappears and rights of the citizen are not adequately protected. Separation of judiciary from the executive universally ensures the independence of judiciary and safeguards the rights of the people. The question of separation of judiciary from executive is not new in our country. In fact, demand for separation of judiciary from executive had been a part of the movement for democracy itself and its implementation was part of the election pledges of both the major political parties. Article 22 of our constitution says, “The state shall ensure the separation of the Judiciary from the Executive organ of the state”. Separation of judiciary is included in Part II of our Constitution, i.e. the fundamental principles of the state policy; and Part V of the Constitution deals with the judiciary.
But unfortunately no government since 1972 when the constitution was framed ever took steps to effect the separation. Finally 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 judiciary becomes independent of the executive form Nov 1, 2007 with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending with the magistrate courts.
Masder Hossain case
The Constitution of Bangladesh provides for an impartial and independent judiciary as one of its cornerstones and guardian. In reality though, the judiciary has been subservient to the all-powerful executive government since independence in 1971. Various governments made rhetorical promises to separate the judiciary from the executive only to appease popular demand for an independent judiciary. This situation led Masdar Hossain, a lower court judge, to lodge a writ petition with the Supreme Court (SC) seeking an order for the separation of the judiciary from the executive as required in Article 22 of the Constitution.
In its landmark ‘Masdar Hossain judgment’, the Appellate Division addressed head on certain concerns regarding executive control over the judiciary. It reaffirmed the principle of independence of the judiciary, and elaborated on the constitutional position and practice regarding separation of the judiciary from the executive. Most importantly, it laid down twelve declarations and directions (‘the twelve commandments’) for implementation by the Government in this regard.
This decision originated in a constitutional challenge brought before the High Court by 218 persons in judicial service, including Masdar Hossain. They argued that subordinate courts were part of the judiciary and therefore persons in judicial service could not be included within the Bangladesh Civil Service (Reorganization) Order 1980, nor could they be controlled as though they were a part of the Bangladesh Civil Service, as defined by the Bangladesh Civil Service Rules 1981. The High Court Division held in favor of Masdar Hossain and the other judges, and after the Government appealed this decision and lost, the Appellate Division affirmed the High Court’s judgment.
In this judgment, the Appellate Division affirmed that a separate Judicial Service should be established, distinct from the Executive and Administrative Cadres of the Bangladesh Civil Service. It also noted that this separate Judicial Service should include both persons in judicial service and magistrates exercising judicial functions. The Court held that the Government’s inclusion of judicial officers within the Bangladesh Civil Service (Reorganization) Order 1980 as the Bangladesh Civil Service (Judicial) was beyond the terms of the Constitution.
The judgment identifies five key characteristics of independence of the judiciary, namely: security of tenure; recruitment to the Judicial Service as permanent and through a transparent Judicial Service Commission; security of emoluments including pension etc.; institutional functional independence of subordinate judiciary from the Parliament and the Executive; and financial autonomy within the sphere funds allocated.
The judgment contains twelve specific directions on the Government for measures to ensure separation of the judiciary, by creating a new Judicial Service to include the magistracy.
The Twelve Directions : Masdar Hossain 1) It is declared that t he judicial service is a ‘service of the Republic’ within the meaning of Article 152(1) of the Constitution, but is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.
2) It is declared that the word “appointments” in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre -appointment rules in that behalf, make rules regulating their suspension and dismissal but Article 115 does not contain any rule - making authority with regard to other terms and conditions of service and that Article 133 and Article 13 of the Constitution and the Services (Reorganisation and Conditions) Act, 1975 have no application the above matters in respect of judicial functions.
3) It is declared that t he creation of BCS (Judicial) cadre along with other BCS executive and administrative cadres by the Bangladesh Civil Service (Reorganisation) Order, 1980 with amendment of 198 is ultra vires the Constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service.
4) The appellant and other respondents to the writ petition are directed that necessary steps be taken forthwith for the President to make Rules under Article 115 to implement its provisions which is a constitutional mandate and not a mere enabling power. It is directed that the nomenclature of the judicial service shall follow the language of the Constitution and shall be designated as the Judicial Service of Bangladesh or Bangladesh Judicial Service. They are further directed that either by legislation or by framing Rules under Article 115 or by executive order having the force of Rules, a Judicial Services Commission be established forthwith with majority of members from the Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the Judicial Service on merit with the objective of achieving equality between men and women in the recruitment.
5) It is directed that under Article 133 law or rules or executive orders having the force of Rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), allowances, pension (as a matter of right, not favour) and other terms and conditions of service, consistent with Article 116 and 116A, as interpreted by us, be enacted or framed or made separately for the judicial service and magistrates exercising judicial functions keeping in view of the constitutional status of the said service .
6) The impugned orders in the writ petition dated 28.2.94 and 2.11.95 are declared to be ultra vires the Constitution for the reasons [stated in] the judgment. The appellant and the other respondents to the writ petition are directed to establish a separate Judicial Pay Commission forthwith as a part of the Rules to be framed under Article 115 to review the pay, allowances and other privileges of the judicial service which shall convene at stated intervals to keep the process of review a continued one. The pay etc. of the judicial service shall follow the recommendations of the Commission.
7) It is declared that in exercising control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the Executive .
8) The essential conditions of judicial independence in Article 116A, elaborated in the judgment , namely, (1) security of tenure, (2) security of salary and other benefits and pension and (3) institution[al] independence from the Parliament and the Executiv e shall be secured in the law or rules made under Article 133 or in the executive orders having the force of Rules.
9) It is declared that the executive Government shall n ot require the Supreme Court of Bangladesh to seek their approval to incur any expenditure on any item from the funds allocated to the Supreme Court in the annual budgets, provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment. Necessary administrative i nstructions and financial delegations to ensure compliance with this direction shall be issued by the Government to all concerned including the appellant and other respondents to the writ petition by 31.05.2000.
10) It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal. The declaration of the High Court Division to the opposite effect is set aside.
11) The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further constitutional amendment is necessary is set aside. If the Parliament so wishes it can amend the Constitution to make the separation more meaningful, pronounced, effective and complete.
12) It is declared that until the Judicial Pay Commission gives its first recommendation the salary of Judges in the judicial service will continue to be governed by status quo [ante] as on 8.1. 94 vide paragraph 3 of the order of the same date and also by the further directions of the High Court Division in respect of Assistant Judges and Senior Assistant Judges. If pay increases are effected in respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation the members of the judicial service will get increases in pay etc commensurate with their special status in the Constitution and in conformity with the pay etc , that they are presently receiving.
These directions, among others, required the Government:
• to set up two separate bodies, the Judicial Service Commission (JSC) (to recruit persons in judicial service, including judicial magistrates), and the Judicial Pay Commission (JPC) (to fix pay scales for members of the judicial service), specifying the nature of their composition, powers and functions.
• to frame and bring into force four sets of rules relating to the establishment of the JSC (for recruitment of members of the Judicial Service), establishment of the JPC (for fixation of their pay and benefits), for ensuring the manner of the constitution, composition, recruitment and suspension of members of the service, and for ensuring matters relating to posting, promotion, and other service conditions.
• for the purpose of incorporating magistrates within the judicial service, to frame amendments to the Code of Criminal Procedure and other laws that empower Magistrates to try criminal cases, so that all references to ‘Magistrate’ in existing laws would be replaced by the term ‘Judicial Magistrate’.
Post-Masdar Hossain case developments
This section outlines some of the apparent discrepancies between the four sets of Rules that have been promulgated (the Notified Rules), and the earlier versions approved by the AD in May 2003 (the Modified Rules). These concerns are set out below and relate in turn to the composition of various bodies, their powers and functions, the nature of the controlling authority and the nature and composition of the judicial service, inasmuch as in each case, there remains considerable practical scope for executive interference at each level. Composition of the JSC and JPC : The JSC as finally established has only seven as opposed to eleven members earlier proposed. The composition of the JPC also appears to leave considerable scope for executive control of the body.
Composition of the Judicial Service: The exclusion of any reference to Magistrates in the Schedule of the Composition Rules and in the definition of Judicial Service indicates that the Magistracy would not be included in the definition of the judicial service.
Powers and Functions : The Posting Rules provide for posting Judicial Officers on deputation to various offices, including the Ministry of Law, the Supreme Court, the Parliamentary Secretariat and the Election Commission. The Posting Rules further appear to widen the scope of deputation from that envisaged by the original Draft Rules.
The Modified Rules approved by the AD by its order dated 26 January 2003 first included such a provision, which did not seem to allow posting of judicial officers to any government department or corporation. Subsequently, given the AD’s direction allowing the President to reframe the Rules, the Government widened the scope of deputation providing for persons in judicial service to be posted to any Ministry, Department or Corporation.
The Posting Rules are silent about the consequence of non-compliance with the Rules, i.e. they do not specify whether a posting without consultation with the Supreme Court would be invalid, and it may therefore be argued that the Rules are directory not mandatory This leaves open the possibility that the opinion of the ‘Appropriate Authority’, that is the Executive, would prevail. Controlling authority for the Judicial Service: The provision regarding the ‘Appropriate Authority’ in the Composition Rules, together with the provision in the Rules of Business for the Ministry of Law to be responsible for administration of the Judicial Service would suggest that the Ministry will remain the controlling authority without further changes. .
The four rules are Judicial Service Commission Rule 2002, Bangladesh Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service (Service Constitution, Composition, Recruitment Suspension, Dismissal and Removal) Rules 2002 and Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2001.
Judiciary separation
The judiciary becomes independent of the executive form Nov 1, 2007 with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending with the magistrate courts. The chief adviser, Fakhruddin Ahmed, will inaugurate the Dhaka Judicial Magistracy and Dhaka Metropolitan Judicial Magistracy in a ceremony Nov 1 morning at the Bangladesh-China Friendship Conference Centre. The chief justice, M Ruhul Amin, will also address the occasion as special guest. Briefing newsmen at his office on Wednesday, the Supreme Court registrar, Ikteder Ahmed, said 218 magistrates, 202 from the judiciary and 16 from the administrative cadre service who opted in to judicial service , would start running the judicial magistracy. ‘Everything is set. Courtrooms, manpower and other logistic supports are in place,’ he said. Six hundred and fifty-five posts of judicial magistrates have been created to meet the demands of the courts in districts.The remaining 453 magistrates will be recruited in three months by the Judicial Service Commission, said Ikteder. According to the report submitted by the government to the Appellate Division of the Supreme Court, 4, 84,832 cases, as of February 28, were pending with the courts of magistrates across the country and at least 890 magistrates were required to deal with them. The judiciary becomes separate from the executive following the 12-point directive issued by the Appellate Division on December 2, 1999 in its landmark judgment in the government appeal against the High Court verdict in Masdar Hossain’s case, popularly known as the separation of judiciary case. The court also ordered the government to report back on the compliance of the directives by May 31, 2000. All the subsequent governments took repeated extensions of the time limit to implement the directives, which are being implemented today. The Awami League government, however, implemented only one of the directives giving financial independence to the Supreme Court in 2001.
The caretaker government in 2001 prepared sets of draft rules on judicial service and a draft ordinance to amend the Code of Criminal Procedure to implement the directives. The legal instruments were, however, kept pending by the caretaker government at the request of then prime minister elect Khaleda Zia. The BNP-led alliance government on January 28, 2004 formed the Judicial Service Commission after framing the Judicial Service Commission Rules. The Supreme Court issued a rule on nine bureaucrats on November 29, 2004 to explain why they would not be punished for contempt of court for distorting its orders on the separation of judiciary. It also issued a rule on four top secretaries, including then principal secretary Kamal Uddin Siddiqui, on April 3, 2006 to explain why they would not be prosecuted for contempt of court for their procrastination in implementing the directive.
In the face of the contempt rule, the BNP government framed the Judicial Service (Pay Commission) Rules on May 28, 2006, and two sets of rules on judicialserviceonJune12, 2006.The court on January 10, 2007 declared the rules and the draft bill for the amendment to the Code of Criminal Procedure contrary to its directives and ordered the government to make fresh rules and ordinance the amendment to the code. The interim government accordingly framed fresh rules on January 16 and promulgated the CrPC (Amendment) Ordinance on February13.
The full court meeting of the Supreme Court, attended by all the Supreme Court judges chaired by the chief justice, M Ruhul Amin, on September 27 decided that the Code of Criminal Procedure (Amendment) Ordinance, which amended the Code of Criminal Procedure on February 11 in accordance with the directives of the Supreme Court, will come into effect on November 1, 2007. The full-court reference (meeting) of the Supreme Court of May 10 decided to put in force the two sets of rules on the judicial service on July 1. According to the rules, from now on, the president will need to exercise his powers regarding appointment, promotion, posting and control and supervision of the judicial service, including judicial magistracy, in consultation with the Supreme Court. In the case of any difference of opinion between the president and the Supreme Court, the Supreme Court’s opinion will prevail, the rules said. According to the rules and the amended Code of Criminal Procedure, the country will have from Nov 1,2007 two sets of magistrates,— judicial and executive , to deal with different functions .The country will also have separate criminal courts — courts of sessions and of magistrates -and all of them will be run by judicial officers. In the Masder Hossain case as mentioned above the executive has been ordered to undertake the task of overhauling the whole lower judiciary with two big commissions- Judicial Service Commission and Judicial Pay Commission which is certainly a matter of policy rather than a dispute. However, there are strong evidences to show that our Supreme Court has dealt with policy matter under the paradigm of 'judicial review' or the doctrine of 'basic structure' of the constitution as we saw it in the celebrated 8th Amendment Case and this is not something unsupported by the constitutional arrangement. It is true that except appointing the Prime Minister and the Chief Justice the President has to exercise every function in consultation with the Prime Minister. However, a harmonious construction of articles 114, 115, 116 and 116A of the Constitution will give a necessary idea . Under article 115 appointments in the subordinate judiciary are to be made as per rules made by the President; article 116 envisages that control and discipline of the subordinate judiciary have to be exercised in consultation with the Supreme Court; and article 116A envisages the independence of the judicial officials and magistrates. The task of separation of lower judiciary is thus a shared responsibility of the executive, legislative and judiciary as envisaged in articles 114 - 116A of the constitution and therefore the government cannot claim it as a sole executive or legislative policy prerogative.
Reference
http://bdnews24.com/bangladesh/2007/02/12/masdar-hossain-says-judiciary-is-free-now http://www.banglapedia.org/HT/S_0237.htm http://hrpb.org.bd/images/frontImages/Judicial_Reforms_and_Independence_of_Judiciary-Keynote_pap.pdf http://www.lcgbangladesh.org/Governance/reports/undp_presentation_26Feb06.pdf Global Corruption Report 2007: Corruption in Judicial Systems