An Independent Judiciary Free

From Influence Of Legislative

Now a days be a democratic country is a prime requirement for the
development of a country. [1] From the definition [2] of democracy, we found
that there are three main organs of a democratic government. These are
legislative, executive and judiciary. The legislature will legislate, executive will
execute the law and the judiciary is to apply laws to the individuals. [3] As the
fields of this thee organs are unique, they must be independent from one
anothers influence.
This essay will be discussed about independence of judiciary, judicial
independence in Bangladesh constitution, influence of legislative and executive
on judicial system and its impact and importance of separation of judicial
system.
Independence of judiciary
The dictionary meaning of independence is not subject to the control of any
person, country, free to act as one pleases; autonomous, not affected by other
etc. However, this meaning of independence is not applicable for the
independence of judiciary. Judicial independence is defined, as a Judiciary
uninhibited by outside influences which may jeopardize the neutrality of
jurisdiction, which may include, but is not limited to, influence from another
organ of the government (functional and collective independence), from the
media (personal independence), or from the superior officers (internal
independence) . [4] Independence of judiciary truly means that the judges are in
a position to make justice in accordance with their promise of office and only in
accordance with their own sense of justice without submitting to any kind of
pressure or influence from executive or legislative or from the parties
themselves or from the superiors and colleagues [5] .
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. Satisfactory implementation of these conditions
enables the judiciary to perform its due role in the society thus inviting public
confidence in it [6]
Separation of judiciary and Bangladesh constitution:
The article 22 [7] of Bangladesh constitution utter that, the State shell ensures
the separation of judiciary from the executive organ of the state. [8] However, as
this article is not mandatory to execute by the government, government does not
execute this article. More over, by the constitutional amendment, lawmaker of
our country reduces the independence of the judicial system. Besides this, the
structure of the judicial system allows the executive branch of our country to
influence the judicial system.
Influence of legislature:
Regarding appointment of persons to subordinate courts, Article 115 of the
constitution of Bangladesh says, In the judicial service or as magistrate
exercising judicial functions shell be made by the President in accordance with
rules made by him in that behalf."
It is important to mention that this Article 115 is substituted for the original
article 115 by the Constitution (4th Amendment) Act.1975 (Act 2 of 1975). In
original Article 115 stated that the President would make the appointment but in
case of direct judges the appointment would be made by the recommendation of
the Supreme Court and in case of other judges in accordance with rules made by
the Precedent after consulting with the appropriate Public service Commission
and Supreme Court. [9]
To control and discipline the subordinate court, the Article 116 says," The
control and discipline of the persons employed in the judicial service and
magistrates exercising judicial function shell vest in the President and shell be
exercised by him in consultation of supreme Court."
However, in the original Article 116, the power of posting, promotion and grant
of leave and discipline of the persons employed in the judicial service and
magistrates exercising judicial function were given to the Supreme Court.
From the above, we can see that, legislatures gave the power to the President
who is the part of the executive. And in this way, legislatures influence the
independence of judiciary.
Influence of executive:
In many countries, executive [10] referred to simply as the government. [11] In
Bangladesh, the party [12] which has the majority in the parliament runs the
government and parliament members elects the President.
At a glance, the judiciary of Bangladesh consists of two divisions, the Supreme
Court and the subordinate courts. The Chief Justice of the Supreme Court sits in
the Appellate Division [13] and is the Chief Justice of Bangladesh. The
president, sometimes-in consultation with the Chief Justice appoints the judges
of the Supreme Court.
The lower judiciary in Bangladesh also consists of two parts. [14] Then there
are also the courts of Magistrates, the Judges of the District Courts are under the
jurisdiction of the Supreme Court and belong to the Bangladesh civil service,
while judges in the courts of Magistrates are members of the countrys,
administrative cadre, which is responsible for the general administration of its
territories and are not controlled not the judicial branch, but by the Ministry of
Establishment and by the government. [15]
From the above we can see that, government has a huge influence to appoint
and control the promotion and other disciplinary subject of the judges, spatially
on the magistrates.
Impact of influence by legislature and executive on judicial system:
In Bangladesh, generally President is elected by the ruling government and s/he
make decision in consultation with the Prime Minister [16] At the same time
President, sometimes-in consultation with the Chief Justice appoints the judges
of the Supreme Court. As a result, While some Chief Justice in the past have
insisted on being consulted on these appointments, others were not so exacting,
leading to Political" appointments by the party in power. [17] A controversy
was occurred just for a political appointment was done by the previous
government appoint a High Court judge who was convicted to manipulate his
LLB transcript. [18] For this consequence, the judicial system lost its credibility
at that time.
19Acording to Article 35(3) [20] every person has the right of independent and
impartial judgment. Responsible for 80 percent of criminal cases, it is the
magistrates who usually decide if the accused is to be granted bail or prosecuted
and typically has the power jail and individual for up to seven years. The most
notable executive interferences in the lower judiciary come through the
appointment of judges and more importantly executive control over the
magistrates. As he knows that his posting, promotion and prospect depends on
his pleasing the executive head, he will generally tries not give any judgment
against his boss though he knows that second party is not getting the impartial
judgment. [21] This kind of inequality in justice also has a bad impact on
economy. [22] Article 22 [23] demand separation of judiciary from the
executive. The Deputy Commissioner has both executive power and judicial
power. [24] Therefore, influence of legislative and executive interference in
judicial system not only hampers the human rights according to the constitution
but also hampers the overall growth of a country.
Importance of Separation of judiciary:
From the above discussion, we can say that separation of judiciary is truly
important for a democratic country. The idea of Separation of judiciary" is
refers to a situation in which the judicial branch of government acts as its own
body frees from intervention and influences from the other branches of
Government particularly the executive. [25] The separation of the judiciary
basically aims at ensuring independence of the judiciary. Once the judiciary
becomes institutionally as well as functionally independent, it is expected to be
more effective in protecting citizens rights and ensuring rule of law. An
independent judiciary is expected to work impartially and not under any undue
influence from ministers, parliament members, political leaders, media or any
powerful person or association.
In most cases, judicial independence and separation of judiciary is executed by
giving judges long tenures, making them not easily removable, ensuring that
their leave, adequate remuneration, promotion, transfer and other conditions of
service are adequately secured by law and reiterating that decisions of those
matters are not influenced by political or any other unjustifiable interests. [26]
Recommendation
For the independence of judiciary, some criteria have to be fulfilled. These are
An independent judicial service commission.
Independence of magistrate from the control of the executive.
Implement all the article of constitution related to the independence of judiciary.
Willingness of politicians regarding amendment of constitution which can
hamper the independence of judiciary.
Amendment of constitutional article which are against the independence of
judiciary.
Conclusion
Although complete independence of three organs of a government is impossible
and hampers the check and balance of the government, required level of
independence, especially independence of judiciary from legislative and
executive, is important to maintain the constitutional right and development for
a democratic country. So we have to appreciate the separation of judiciary in
Bangladesh which is implemented in November 1, 2007 though it will take time
to enjoy the full benefit of this separation of judiciary.
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