Separation of Judiciary

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Judicial SeparationOf Bangladesh

Written By Md. Mahbubul KarimStudent of LL.B

Stamford University, BangladeshE-mail: [email protected]



Introduction

Ina democratic state, the power rests on three separate organs,

namely the executive, the legislature and the judiciary. Theconstitution of Bangladesh vests the executive power in the executiveand the legislative power in parliament. Though there is no specificvesting of judicial power, it is vested in the judiciary; the judiciarycomprises all courts and tribunals, which performs the delicate task of ensuring rule of law in the society. A social structure remains coherentand cohesive with the aid of a sound judicial system. Judiciaryredresses the grievances of the people and resolves disputes. The

dysfunction of judiciary impacts more severely than that of any otherinstitution as it removes from the mind of people the sense of attachment with the society. In Bangladesh the Judicial norms andpractice have been derogating for years. Recently a number of allegations have mounted surrounding judiciary.

Independence of Judiciary

Independence of judiciary means a fair and neutral judicial system of a

country, This can afford to take its decisions without any interference of executive or legislative branch of government. Taking intoconsideration some of the recent discussions made in the BeijingStatement of Independence of the Judiciary (a statement resulting fromthe cumulated views of thirty-two Asian and Pacific Chief Justices)

Judicial independence is defined, in this report as a Judiciaryuninhibited by outside influences which may jeopardize. The neutralityof jurisdiction, which may include, but is not limited to, influence fromanother organ of the government (functional and collective

independence), from the media (personal independence), or from thesuperior officers (internal independence).

Independence of judiciary truly means that the judges are in a positionto render justice in accordance with their oath of office and only inaccordance with their own sense of justice without submitting to any

Separation of Judiciary In Bangladesh



kind of pressure or influence be it from executive or legislative or fromthe parties themselves or from the superiors and colleagues. Theconcept of judicial independence as recent international efforts to thisfield suggests, comprises

Following four meaning of judicial independence:

1. Substantive Independence of the Judges: It referred to as functional or decisional

independence meaning the independence of judges to arrive at their decisions without

submitting to any inside or outside pressure;

2. Personal independence: That means the judges are not dependent on government in

any way in which might influence them in reaching at decisions in particular cases;

3. Collective Independence: That means institutional administrativeand financial independence of the judiciary as a whole vis-à-visother branches of the government namely the executive and thelegislative; and

4. Internal Independence: That means independence of judges fromtheir judicial superiors and colleagues. It refers to, in other words,independence of a judges or a judicial officer from any kind of order,indication or pressure from his judicial superiors and colleagues indeciding cases

Independence of judiciary depends on some certain conditions likemode of appointment of the judges, security of their tenure in theoffice and adequate remuneration and privileges. Satisfactoryimplementation of these conditions enables the judiciary to perform itsdue role in the society thus inviting public confidence in it.“Independence of the judiciary”, it is maintained, “lends prestige to theoffice of a judge and inspires confidence in the general public”.






state. A high degree of separation, however, can be a strong guardianof judicial independence, as this paper will attempt to prove.

The constitution of Bangladesh is the first defense of judicialindependence, presiding over all the “Republic’s affairs and framingthe organization and administration of the government. Whileconstitutional flows exist, regarding separation of the judiciary, thereare adequate provisions for formal judicial independence.

Judicial Independence in the Constitution

Part VI of the constitution deals with the judiciary. Art. 7 provide that allpowers in the Republic shall be effective only under and by authority of the constitution. The responsibility of seeing that no functionary of thestate oversteps the limit of his power is a necessity, on the judiciary.

Art. 35(3) of the constitution provide “Every person accused of acriminal offence shall have right to a speedy and public trial by anindependent and impartial court or tribunal established by the law.

Article 116A provides for independence in the subordinate judiciary

while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975discussed later in the paper: Subject to the provisions of theconstitution, all persons employed in the judicial service and allmagistrates shall be independent in the exercise of their judicialfunctions.

S eparation of the Judiciary in the Constitution

The judicial independence of all judicial officers is unconditionalaccording to the constitution of Bangladesh. This ideal is protectedprimarily through the concept of separation of the judiciary from the




other organs of government. Article 22 states directly andunquestionably: The state shall ensure the separation of the judiciaryfrom the executive organs of state. Article 95(1) addressed the methodof appointment for the Supreme Court: the president shall appoint TheChief Justice and other Judges. The appointment and control of judges

in the subordinate judiciary (judicial service) are described in Articles115 and 116 stating respectively: Appointment of persons to offices inthe judicial service or as magistrates exercising judicial be made by thePresident with the rules made by him in that behalf. The control(including the power of posting, promotion and grant of leave) anddiscipline of persons employed in the judicial service and magistratesexercising judicial functions shall vest in the President and shall beexercised by him in consultation with the Supreme Court. It isprincipally through the above articles that the executive branch hasbeen able to gradually intrude upon and influence the judiciary inBangladesh, creating enormous problems regarding the quality of

jurisdiction and the extent of judicial independence. Recently,separation of the judiciary from the executive has been argued as anecessity based on the unconstitutionality of the present organizationand while this may well be true, it appears to be he consequentialimproved functional independence of the judiciary that is thefundamental reason for separation with unconstitutionality being onlyan argument to ensure its enactment.

Why Need Separated Judiciary

In order to promote accountability of government, hinder corruptionand protect the fundamental freedoms of citizens from the will of thegovernment of the day, it is essential to keep separate the Parliament’spower to make laws, from the Executive’s power to administer laws,and from the Judiciary’s power to hear and determine disputesaccording to the law. This separation is designed to protect the peoplefrom a concentration of power, and the ability of individuals or groupsto manipulate government for personal gain and to ignore the will of the people




A true separation of government powers is essential to ensure theaccountability of government, hinder corruption and protect thefundamental freedoms of citizens against the will of the government.

Each branch of government must be, and be seen to be, free to act asa check and balance on the other without fear or interference.

There are three distinct activities in every government through whichthe will of the people are expressed. These are the legislative,executive and judicial functions of the government. Corresponding tothese three activities are three organs of the government, namely thelegislature, the executive and the judiciary. The legislative organ of thestate makes laws, the executive enforces them and the judiciaryapplies them to the specific cases arising out of the breach of law. Eachorgan while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus,even when acting in ambit of their own power, overlapping functionstend to appear amongst these organs.

The question which assumes significance over here is that what shouldbe the relation among these three organs of the state. Whether thereshould be complete separation of powers or there should be co-

ordination among them.

An analysis into these three organs and the relations between them isto be done with the experience in different countries along with Indiawhich will give a clear idea about this doctrine and its importance indifferent Constitutions.

Today all the systems might not be opting for the strict separation of

powers because that is undesirable and impracticable but implicationsof this concept can be seen in almost all the countries in its dilutedform.

It is widely accepted that for a political system to be stable, the holdersof power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three




organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the threeorgans and hence a strict demarcation of power is the aim sought to beachieved by this principle. This doctrine signifies the fact that oneperson or body of persons should not exercise all the three powers of

the government.

Steps for Separation of Judiciary

The first attempt was taken after the division of the sub-continent in1947,Pakistan government enacted East Pakistan (then Bangladesh wasunder Pakistan government) Act No. XXIII of 1957, which provided forseparation of judiciary from the executive. The law was still hanging for

a simple gazette notification. As regards independence and separationof judiciary, our constitution of 1972 is fairly developed. But theframers of Supreme Law of the land made an unfortunate insertion inarticle 115 and 116 as ‘Magistrates exercising judicial functions’, whichstill. Remain unattended. Art 22 in unequivocal term states that ‘thestate shall ensure the separation of the judiciary from the executiveorgans of the state’ as one of the fundamental principles of statepolicy. It is not readily judicially enforceable. Nevertheless the statecannot ignore it for long. There was under current of demand of

implementation of constitutional obligation from the very inception of Bangladesh. But the Fourth Amendment undermined theconstitutionalism itself, which obviously destroyed the independence of

judiciary. The subsequent upheavals of politics rather by passed it. In1976 law commission recommended that subordinate judiciary on thecriminal side should be separated from the executive.

In the mean time, we witnessed two extra-constitutional processes. In1987, initiatives were taken to separate the magistracy by amendingcode of Criminal Procedure, 1898. For unknown reason the Bill couldnot placed before the Parliament. After the fall of autocratic rule in1990, exception was high to ensure separation of judiciary. But thenext two governments of 1991 & 1996 did nothing in this regardexcept spoiling its tenure. In 1999, the Supreme Court issued 12-pointdirectives in famous Mazdar Hossain case to ensure separation of

judiciary from the executive. The successive governments have taken




time again and again to delay the process. It may be recalled that thecaretaker government (2001) has all measures to ensure separationbut stop at their quest of AL and BNP two major parties of the country.

The BNP leaded coalition government is working very slowly towardsseparation of judiciary. It is a pleasure that Judicial Service Commission

and Judicial Pay Commission have been created various rules andamendment in the relevant sections of code of Criminal Procedures1898 are under consideration of parliament of late the law. Just andParliamentary Affairs Minister announced that it would take additionalsix years (!) to ensure separation of judiciary theDaily Star 20.6.2004 this statement is reflective of how indifferent theGovernment is about separation of judiciary. The demand separation of the judiciary from the executive is universal to ensure theindependence of judiciary and safeguard the rights of the people. It isquite unfortunate that the Government is moving towards at shail’space.

Judiciary from the executive at all levels in 1973 and 1974 (in WestBengal in 1970) respectively. Ensuring justice and independence of

judiciary will remain a far very until lower judiciary is separated fromthe executive. It is mandatory and constitutional obligation of theGovernment to ensure separation of the judiciary from the executive.Five years have been clasped since the Supreme Court gives itdirectives in Masdar Hossain case. Law Minister is seeking for

additional six years in this regard we can fairly questions how long willit take to ensure separation of judiciary from the executive?

We may mention here some draft procedure to separation of judiciaryby the government at a glance:

1. The formation of Bangladesh Judicial Service, establishment of paycommission, appointment in service and the procedures of temporary dismiss and remove, 2001.

2. Bangladesh judicial service (ascertainment of field of service, givingpromotion, system of control and discipline including grant of vacation and the term of service) procedures, 2001.

3. Judicial Service Commission Procedures, 2001.

4. The Code of Criminal Procedures, 1898 (Amendment) Ordinance,2001




The Problems and Obstruction of Separation of Judiciary from the Executive in

Bangladesh

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 werepublished in the leading newspapers of our country. But thoseintellectual exercises have gone unheeded so far. There were of coursecommitments of the political parties every time before the electionswere held (Rahman, 2004). We must seek the reasons why this veryimportant organ of the state has so far not been given the shape asenunciated in the sacred constitution where the nation has solemnly




affirmed for an independent judicial system. I have point out heresome common problems.

Lack of Consciousness

Of the total people constituting the electorate of our country, I amsure more than 10% voters do not know what actually is mean by theseparation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions weshould have at least an average knowledge of our present judicialsystem. Lack of consciousness people’s has no strong movement forthis reasonable and demandful wants.

Lack of Political Will Any kind of meaningful changed, political will is mandatory becauseour democratic polity deals by various political parties. AndGovernment formed by citizen’s mandate with their representatives.So, if the political parties (both government and opposition) have nointerest to separate the judiciary from the executive it would beimpossible. Though most of the political parties have commitment toseparation of judiciary but after formation of government theytechnically avoid the matters. That’s why the process of separation of

judiciary is going on endlessly.

Lack of Interaction with Other Courts Lack of interaction of the judges in Bangladesh with their counterpartsin other countries is a possible factor for their insular understanding of law. Of course, the courts’ scarce resources limit the opportunities forsuch interaction. And, the very limited judicial interaction with foreigncourts, when it does occur is arranged in hierarchical order. This meansthat older judges, who are usually less amenable to fresh ideas andhave less time left on the bench, undertake such interactions mostoften, receiving the most limited results possible .

Lack of Strong Civil Society Civil society now days play a very important role for any positivechange or form of a country. The civil society of Bangladesh is not so






Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary. Generally ministries do not havelegal officers of their own, and the public prosecution service is anadhoc arrangement. Arguably, judicial independence is compromisedwhen a person acts as both a prosecutor and a judge. Law officers

have to defend government positions while judges might rule againstthe government. A directive of the Masdar Hossain Judgment calls forthe roles of judges and prosecutor to be separated. Unfortunately, sofar this directive has not been carried out.

Corrupted lawmakers The air of separation of judiciary is entering; side by side it has alsobad smell. Maximum judges and lawmakers are corrupted. The takesbribe spontaneously and make the case diverted. It is a very commonphenomenon in our country. So if the independent judiciary is vestedupon the dishonest lawmakers, there must be disorders in law andorder situation of Bangladesh. Recently Transparency International of Bangladesh (TIB) exposed the corruption of the lawmakers.

Government Negligence The High Court Division of the Supreme Court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But thegovernment has so long remained headless and negligent to the HighCourt Division’s directives. When the government itself does not honorthe highest court of the country, how can the people in general confidein the judicial system and such underhand practice?

However, the government has sought, and the Appellate Division has

granted, a number of extensions in time (25 times) for theimplementation of the Supreme Court’s directives. Formally landofficially the government is committed to implementing thesedirectives, which would also include some changes in the criminalprocedural laws. However these repeated extensions suggestcontinuing challenges to the ultimate implementation of University of Rajshahi, Rajshahi the directives. It is strongly felt everywhere that




immediate steps are taken for separation of the judiciary from theexecutive organ of the state.

Masder Hossain Case and A brief History of theSeparation of Judiciary in

Bangladesh

B ritish Period




During the British rule there was a demand for separation of judiciaryform the executive. The British administration did not make thisseparation thinking that separation might go against their colonialinterest. In 1919 the matter of separation of judiciary was raised in theHouse of Commons but it was not discussed on the contention that it

was a matter within the jurisdiction of provincial government. In 1921 aresolution regarding separation of judiciary was passed in the BengalLegislative Assembly which was followed by formation of a committee.

The committee reported that there was no practical problem inseparation. However, nothing more was done.

P akistan P eriod

After separation and interdependence in 1947 no step was taken inEast Pakistan. The United Front includes the idea of separation in its 21

points formula in 1954. The firs6t Constitution in independent Pakistanwas adopted in 1956. Unlike the Government of India Act 1935 (Ss 253,254, 255 & 156) and the Constitution of India (Art 233 to 237 inchapter vı) this Pakistan Constitution of 1956 did not provide for anyprovision regarding “subordinate courts” or “magistracy”; these wereto be regulating by the code of the CPC& the CrPC. In 1957 the East Pakistan Provincial Assembly passed theCrPC (East Pakistan Amendment) Act 1957 (No. 36) which dealt withseparation. However, this Act was never given effective. In 1958 thePakistan Law Commission recommended to bring the judicialmagistrates under the control of The High Court. In 1967 the LawCommission again recommended to give effect to the CrPC Act 1957(No. 36) though nothing was done until 1972. In the CrPC (EastPakistan Amendment) Act 1957 (Act No .36 of 1957) an overhaulingamendment was made in the CrPC with a view to separating the

judicial and executive functions of the magistrate. A full discussion of that amendment is beyond the scope of this work.

Bangladeshi Period

In 1972 after independence of Bangladesh the Constitution of thePeople’s Republic of Bangladesh was adopted. Provision was made inArt 22 in the Fundamental Principle of State Policy that the state shall




ensure the separation of the judiciary from the executive organ of thestate.In 1976 a Law Committee headed by Justice Kemaluddin reported toimplement separation of lower judiciary in three stage which asfollows:

First Stage The government may by notification appoint some particularMagistrate at each station exclusively for judicial work. This can begiven effect without any additional expenses or administrativedifficulties.

Second Stage This should be the nature of separation of judicial function form

executive as envisaged in the CrPC (East Pakistan Amendment) Act1957 (Act No. 36).

Final Stage

The final stage would be not only complete separation of judicialfunction form executive but also constitution of a separate integrated

judicial service under the control of the High Court Division for Civil andCriminal work right up to the level of the District & session judge. Thecommittee also recommended that for creation of an integrated

judicial service. , it would be necessary to enact new legalization.In 1987 by an amendment to the CrPC President Ershad prepared a billfor separation of judiciary. However, the bill did not see the light of theday. In Pakistan separation was done in 1973 and India in 1974 by anamendment to the CrPC in 1990 the issue of separation of judiciarywas put into the manifesto of the Three- Party Alliance movementagainst Ershad regime. In every election after 1990 both the BNP andAL had avowed commitment un their manifesto that going to powerthey would separate judiciary form the executive.

In 1991 a private member’s Bill by Mr. Salauddin Yusuf namely theConstitution (14th amendment) Bill 1991 was introduced for furtheramendment of Art 95, 98, ii5and 116 of the Constitution. The Bill wassent to a select committee which had about 13 meeting to consider it.

The Bill tried to reinstate the provision of the 1972 original Constitutionenvisaged by the constitution makers. The revised bill was submitted




in parliament in 1994. The comparison of the original bill and therevised bill reveals that “the BNP has come out as the champion for the4th amendment of the Constitution though it is the BNP which nevermisses any opportunity to condemn AL for the 4th amendment of theConstitution; however, nothing was done to pass the Bill. The Bill,

however, did not deal with anything about the separation of subordinate judiciary. The government side did not accept anyproposal for amendment of Art 115 & 116 of the constitution. ‘By notagreeing to restore the original provisions of Art 115 & 116 thegovernment has unmistakably demonstrated that they are opposed tothe separation of subordinate judiciary from the executive. ShekhHasina as the Prime Minister in the 7th parliament kept echoing hercommitment that she would do all for separation of judiciary. Acommittee was formed headed by the secretary of Law andParliamentary Affairs Motin Khasru, the Law Minister stated t5hat a billfor separation of judiciary from the executive was under way butnothing more was done.

Masder Hossain's case

It has been more than five years since the historic judgment in Masder

Hossain's case, popularly known as 'separation of judiciary' waspronounced in December 2, 1999 by the Appellate Division of theSupreme Court. The Court directed the Government to implement its12-point directives to separate judiciary from the clutches of theexecutive. In this long period three governments- respectively havesought extensions of times on one pretext or other as many as 18times to implement the directives. Back in November 2004 theGovernment sought for four months time, which was allowed by theCourt. However, on November 29, 2004 the Appellate Division had toissue a show cause notice to nine Government officials to explain why

they would not be prosecuted for contempt of court for distorting the judgment of the court and the rules approved by the court forseparation of judiciary. On 16th April, 2005 the matter came up onceagain for the court to see the progress of the government with regardto the implementation and to hear the contempt of those nine officials.

The Government asked for another four months extension. However,




the court extended time again till 17th October. But the question ishow long will this tactics of time extension continue? How long will be a

judgment of the Supreme Court matter of pull and haul at the hand of government? Apart from this delaying tactics, in very recent past astatement from governmental level pointed out that the separation of

judiciary was not a popular demand and the government may go for areferendum on this issue. When such a statement is posed from theGovernmental level the legitimacy of the judgment of the apex courtitself comes under attack. What could be the reason behind suchdelaying tactics and policy statement?

The reason lies, as I wrote back in 1998, with some provisions in theoriginal constitution of Bangladesh regarding the dependencysyndrome of the subordinate judiciary which has left the idea of separation of judiciary largely a policy matter rather than judicial

determination. Under the express wording in article 112 of theconstitution all authorities, executive and judicial, in the Republic shallact in aid of the Supreme Court. But when the Government states thatseparation of judiciary is largely a policy matter; again it reiterates thatit will implement the judgment today or tomorrow what can the apexcourt do? How long the arms of the apex court could go to catch thewrongdoer or someone who is not obeying the judgment of the court orundergoing delaying tactics? True it is that the Supreme Court of acountry cannot modify the course of history; neither can it catch hold

of and throttle someone who is disobeying its decision; it can onlypronounce judgments and refer to the other departments of thegovernment to execute it; if the executive disobeys its decision, it canat best contempt someone but it does lack any real stick to beat theexecutive. The machineries of democracy are not supposed to run inthat hostile manner; they are built on the concept of check andbalance and this balance is provided for in article 112 of theconstitution as far as the implementation of the Supreme Court'sdecision is concerned which the executive must bear in mind. If theexecutive flouts the decision of the apex court so will do thebeneficiaries of political parties leading the country into a land of politico-legal anarchy. The judgment in Masder Hossain case by theSupreme Court to direct the government to separate judiciary is notsomething like a bolt from the blue. Since independence almost everymainstream political party made pre-election pledge that if voted topower, they would separate judiciary from the executive but every




government has betrayed with their pledge to this effect. It is pledgedin article 22 of the constitution that State shall ensure the separationof the judiciary from the executive. Every Prime Minister and Ministertakes their oath of office that they will preserve, protect and defendthe constitution though the irony is that they quickly forget their

pledge leaving behind the poor litigants in an endless suffering. Howlong will the people have to wait see the judiciary separate? In line withthe spirit in the part of the 'Directive Principles' of the constitution bothIndia and Pakistan have completed the task of separation of the

judiciary long ago compared to us. 33 years have passed since weachieved our independence. If we still vaunt in a colonial mastery toourselves- "what will the court do if we do not separate the judiciary?",will there be any merciful mystery angel to complete the task for us?

Lower judiciary: An acute dependency syndrome in Magistrates' Courts

Let me get back to the concept of dependency syndrome of thesubordinate judiciary particularly the magistrates' courts, which is themain problem in ensuring independence and separation of the lower

judiciary.

Three tiers of Magistrates' Courts, i.e. 3rd Class, 2nd Class and 1stClass Magistrates' Courts- all these are the courts of first instance forcriminal cases. Given that criminal cases filed in a year are far greater

in number compared to the number of civil cases, these criminal courtshave a great potential in shaping the base of our legal system.However, unfortunately for reasons, principally, of some legalshortcomings these courts are playing negative role at a greater extentfrustrating the very purpose of criminal justice. The shortcomings areas follows:

i) All magistrates are linked with the executive functionaries.Magistrates are discharging dual functions- judicial and executive. Theyare controlled by the Ministry of Establishment, the Ministry of Home

Affairs and also the Ministry of Law, Justice and Parliamentary Affairs.In discharging their judicial functions they are very often dictated andinfluenced by the executive. As a result, they cannot independentlydischarge their judicial functions. It is impossible for a judge to take awholly independent view of the case he is trying, if he feels himself toany extent interested in or responsible for the success of one side orthe other. It is equally impossible for him to take an independent view




of the case before him if he knows that his posting, promotion andprospects generally depend on his pleasing the executive hand.

ii) Magistrates who discharge judicial functions are never appointedfrom persons with legal background. It is sometimes impossible to

expect justice from a person who has no institutional legal education.Being administrative first class officers magistrates sometimes do notcare abusing their power. This is mostly the case because, firstly, theyare taking the opportunity of illiteracy and ignorance of law of masslitigants and secondly, there is inherent lack of administrative checkand balance in magistracy and thirdly, they are not under anyadministrative control of the Supreme Court.

iii) In almost all magistrates' courts bribes are now-a-days openlyclaimed as a matter of right? Anyone defaulting has to pay a price at

his cost. In magistrates' courts bail depends not on law but on theamount of bribes.

The main crux of the problem of separation of judiciary lies in themagistrates' courts. Ensuring justice and independence of judiciary willremain a far cry until magistrates' courts are separated from theexecutive. The dual function of magistrates and also the dependencyof the lower judiciary upon the executive is a legacy of the British rule.During the very British days there was a demand for the separation of

judiciary from the executive. The British administration did not makethis separation thinking that separation might go against their colonialinterest. After independence in 1947 though some positive steps weretaken, eventually they were not implemented.

In our new constitution adopted in 1972 it was provided in article 22that "the state shall ensure the separation of judiciary from theexecutive organ". In article 116 the term "magistrates exercising

judicial functions" have been used. Dr. Kamal Hossain the chairman of the Constitution drafting committee stated that by the term

'magistrates exercising judicial function' the constitution makerswanted to mean judicial type of magistrates and after the constitutionwas given effect everybody took this term for judicial type of magistrates but the government did not separate them. Ultimately thematter of judiciary separation came as a judicial determining factorbefore the Supreme Court in much-talked Masder Hossain case.




Conclusion: In the Masder Hossain case as mentioned above the executive hasbeen 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 ourSupreme Court has dealt with policy matter under the paradigm of

'judicial review' or the doctrine of 'basic structure' of the constitutionas we saw it in the celebrated 8th Amendment Case and this is notsomething unsupported by the constitutional arrangement. It is truethat except appointing the Prime Minister and the Chief Justice the

President has to exercise every function in consultation with the PrimeMinister. However, a harmonious construction of articles 114, 115, 116

and 116A of the Constitution will give a necessary idea that in thematter of subordinate judiciary the policy matter has not been left tothe sweet will of the parliament or the president alone; the executive

has to exercise its power in consultation with the Supreme Court in thissphere. Under article 115 appointments in the subordinate judiciary areto be made as per rules made by the President; article 116 envisages

that control and discipline of the subordinate judiciary have to beexercised in consultation with the Supreme Court; and article 116A

envisages the independence of the judicial officials and magistrates.Given this integrated scheme as designated in these articles if the

parliament or the President attempts to make law to separate judiciary

without involvement of the Supreme Court, which law will certainlycome under judicial attack? The task of separation of lower judiciary isthus a shared responsibility of the executive, legislative and judiciaryas envisaged in articles 114 - 116A of the constitution and therefore

the government cannot claim it as a sole executive or legislative policyprerogative. The best course for the government therefore would be toimplement the judgment of the Masder Hossain case without resorting

to any delaying tactics on the ground of policy matter or publicdemand.

Supreme Court order on judiciary separation




Feb 19. 2007

The Supreme Court will pass its order on the separation of the judiciaryfrom the executive on February 19 after examining the Code of Criminal Procedure (Amendment) Ordinance, which was promulgated

on February 11. The attorney general, Fida M Kamal, on Wednesday placed a copy of the ordinance before the full court of the Appellate Division.After a four-minute hearing, the chief justice, Syed JR Mudassir Husain,said the next order would be passed on February 19 upon scrutiny of the ordinance.

The court also adjourned till February 19 the hearing of the contempt-of-court proceedings against 13 bureaucrats, including four top-rankingofficials, for procrastination in the implementation of the 12-point

directive and for distorting the court's orders on the separation of the judiciary. The petitioner's counsel, M Amirul Islam, submitted an application tothe court, saying the sets of rules framed by the government on

judicial service and the ordinance still had some deviations from the12-point directive and they should be corrected.

The interim government promulgated the Code of Criminal Procedure(Amendment) Ordinance on February, making provisions for separate

judicial and executive magistracy.Earlier on January 16, the government framed four sets of rules on

judicial service, taking the penultimate step for the separation of the judiciary. The ordinance and the four sets of rules will, however, come into effecton the date the Appellate Division fixes.

The Appellate Division on December 2, 1999 issued the 12-pointdirective, which will eventually separate the judiciary from theexecutive, in its verdict on the government's appeal in MasderHossain's case, popularly known as 'separation of the judiciary case'.

Independence of judiciary

A dream comes true




The basic principles of the independence of the judiciary was endorsedby UN General Assembly in 1985 and referred by the UN Office of theHigh Commissioner for Human Rights as -- “The judiciary shall decide

matters before them impartially on the basis of the facts and inaccordance with the law, without any restrictions, improper influences,inducements, pressures, threats or interferences, direct or indirectfrom any quarter or for any reason”. Separation of judiciary from theexecutive is the precondition for sound and independent judiciary.

Judiciary redresses the grievances of the people and resolves disputes. The International Covenant on Civil and Political Rights (ICCPR), 1966was also mentioned in Article 14(1) “In the determination of anycriminal charge against him, or of his rights and obligations in a suit atlaw, everyone shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by law”.

The judiciary has been defined as the last resort of the commonpeople. It is the sector that actually protects and harmonizes thevarying interest of the members of the society. The judiciary has beenthe major recourse of the human rights community in the enforcementof human rights. Litigation has been identified as one of the key meansof protecting and enforcing the rights of the individual. No otherinstitution of the state is bestowed with the duty but the courts and

other ancillary institutions. Most of the monumental achievements of the human rights community the world ever have been through thecourts. The judiciary comprises of all institutions established thereunder for the administration of justice to protect, vindicate and enforcethe rights of the people. The judiciary is charged with the responsibilityof dispensing justice and safeguarding the rule of law. In any civilizedsociety, judiciary is the last resort for the people to seek shelter andget relief against the offenders and wrong doers.

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. Independence of

judiciary truly means that the judges are in a position to render justicein accordance with their oath of office and only in accordance withtheir own sense of justice without submitting to any kind of pressure orinfluence be it from the executive or legislative or from the partiesthemselves or from the superiors and colleagues. Independence of




judiciary depends on some certain conditions like mode of appointmentof the judges, security of their tenure in the office and adequateremuneration and privileges.

The concept of separation of judiciary from the executive refers to a

situation in which the judicial branch of the government acts as its ownbody free from intervention and influence from the other branches of the government particularly the executive. Principle of separation of powers is one of the vital elements of democracy. If the sameindividual assumes the functions of both executive and judiciary thenecessary check and balance disappears and rights of the citizen arenot adequately protected. Separation of judiciary from the executiveuniversally ensures the independence of judiciary and safeguards therights of the people. It is impossible to ensure the rule of law, uponwhich other human rights depend, without providing independent

courts and tribunals to resolve disputes independently. The completeindependence of judiciary is the first major step in the process of itsdevelopment. Without completing this, progress of work in other areasis not likely to deliver the intended full benefits.

While the Westminster system had largely developed because of thedoctrine of separation of powers, our present system of government islargely based on the Westminster. This doctrine of separation of powers proposes that the three institutions of government, the

legislature, the executive and the judiciary should be exercised asseparate and independent branches. It is this doctrine that stresses theneed for the independence of the judiciary from the other twogovernment institutions in order to protect the freedom of individuals.It is under this doctrine that no person can be a member of parliamentand a judge at the same time. The doctrine of separation of powersoffers several advantages: it proposes separate, specialized andefficient branches of government and it also reduces the abuse of government power by dividing it.

The constitution is the supreme law of the country and for Bangladesh,the form of government has been spelled out in the constitution that itwill be a Republic. The constitution lays down specific functions of different organs of the government. The judicial system in Bangladeshhas been a legacy of the judicial system as introduced by the Britishduring the colonial days. The parliament is supreme and the lawmakersalone bring about any change by amending the constitution as and




when necessary. The Supreme Court has been authorized to interpretthe provision of the constitution as and when required. Judiciary helpsthe government to carry out one of the functions of the state and indoing so it should be able to function independently with nointerference from any quarter or under any influence of fear or favor

(Article 116A of the Constitution of Bangladesh).

The question of separation of judiciary from executive is not new in ourcountry. In fact, demand for separation of judiciary from executive hadbeen a part of the movement for democracy itself and itsimplementation was part of the election pledges of both the majorpolitical parties. With same origin like us, both Pakistan and Indiaseparated their judiciary from the executive in 1973 and 1974,respectively. We earned our independence in 1971. But we have set upour democracy in 1991, after 20 years of independence. So far we

could do little progress as far as the implementation of separation of judiciary is concerned. Article 22 of our constitution says, “The stateshall ensure the separation of the Judiciary from the Executive organ of the state”. Separation of judiciary is included in Part II of ourConstitution, i.e. the fundamental principles of the state policy; andPart V of the Constitution deals with the judiciary.

But unfortunately no government since 1972 when the constitutionwas framed ever took steps to effect the separation. Finally in 1999

while delivering historic judgment in the famous 'Masder Hossain'scase', popularly known as 'separation of judiciary' the AppellateDivision of Supreme Court asked the government to take steps forseparation as per Article 22 of the Constitution. The Appellate Divisionalso gave 12 points directive or road map on how the separationshould be given effect to. The Caretaker Government (CG) of 2001 tookall measures to ensure the separation of judiciary, but stopped at therequest of both the major political parties, who expressed their desireto implement once came to power. But unfortunately, it is not ensuredby the winning party within their full tenure. It has been more than six

years since the judgment was pronounced, but in this long period threeconsecutive governments respectively have only sought 22 extensionsof time.

A full bench of the Appellate Division of the Supreme Court on January10, 2007 ordered the present CG to publish various rules on separationof the judiciary through gazette notification within a week and remove




major hurdles for the separation. The four rules are Judicial ServiceCommission Rule 2002, Bangladesh Judicial Service Pay CommissionRule 2002, Bangladesh Judicial Service (Service Constitution,Composition, Recruitment Suspension, Dismissal and Removal) Rules2002 and Bangladesh Judicial Service (Posting, Promotion, Leave,

Control, Discipline and other Service Condition) Rules 2001. Thegovernment has been given as many as 22 deadlines to implement the12-point directives of the Supreme Court on the matter, beginning from1999.

Finally the present CG in a landmark move on January 16, 2007published the gazette notifications of four rules relevant to separatingthe judiciary from the executive. The Chief Adviser of the CG and finallythe President of the Republic have also endorsed their consent to thedocuments of those rules. The whole process was done in a hasty

move with the Supreme Court deadline of publishing the gazettenotifications.

The much expected separation of the judiciary now requires only anamendment of CrPC as per 12-point directives of the Supreme Courtgiven in 1999. With the implementation of those rules, the magistratesworking under the executive branch of the government will comeunder the authority of the Supreme Court, and the lower court will alsobe free of government control.

Now, it is expected that the complete separation will take place duringthe present CG by implementing the amended the CrPC in order tofulfill the expectation of the people.




Caretaker Government completes process

The long-awaited separation of the judiciary from the executive nowonly requires declaration of an ordinance on necessary amendments tothe Criminal Procedure Code (CrPC), the gazette notification of which iscurrently being printed.

If the ordinance were put into effect, the judiciary would be separatedfrom the executive and the magistrates, who are currently under thecontrol of the executive, will then come under the authority of the

higher court and be known as judicial magistrates.

When contacted for comments on the promulgation of the ordinance,Law Secretary Alauddin Sarder, however, was not willing to make any.

Additional Attorney-General Abdur Rezzak Khan confirmed that, thepresident has already given his consent to promulgate the ordinance.

The gazette notification is currently being published.

Rezzak said, “We cannot say yet the ordinance has been promulgated

since it is still in the press for being printed. But as soon as the gazettenotification is printed and published, the ordinance will be in effect.”

All actions related to the separation of the judiciary will be then takenunder the amendment.

The CrPC amendment is generally passed through a bill placed beforeparliament. But since there is no parliament now, the president hashad to amend the CrPC through an ordinance.

According to the constitution, an ordinance will have to be laid beforeparliament at its first meeting following the promulgation of theordinance.

Meanwhile, the government published a gazette notification of fourrules relevant to the separation of the judiciary.


http://www.bangladeshnews.com.bd/2007/01/18/govt-completes-process/






The rules are Judicial Service Commission Rule 2002, Bangladesh Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service(Service Constitution, Composition, Recruitment, Suspension, Dismissaland Removal) Rules 2002, and Bangladesh Judicial Service (Posting,Promotion, Leave, Control, Discipline and other Service Condition)

Rules 2001.

The gazette notification for Bangladesh Judicial Service PayCommission Rule 2002 was placed before the court during yesterday’shearing of the judiciary separation case at the Appellate Division of theSupreme Court.

Attorney General (AG) AJ Mohammad Ali told the court that the threeother rules are being printed in the press for publication and that hewill receive them soon.

When asked by the court about the CrPC amendment, the AG soughtfor another 10 days for the task, but the court did not respond to hisrequest.

The seven-member full bench of the Appellate Division headed byChief Justice JR Syed Mudassir Hosain directed the AG to place thegazette notifications of the rules by next Sunday through an affidavit.

The bench also asked him to inform the court of the progress on the

CrPC amendment.

Counsel for the judiciary separation case Barrister Amir-Ul Islam, whowas present in the court, later, told reporters, “We will come to knowhow much deviation has taken place from the Supreme Courtguidelines once all the four rules and the CrPC amendment are placedbefore the court.”

Nine bureaucrats who have been facing contempt charges for

distorting the SC directives also appeared before the court. The SC directed them to appear before the court at the next hearing onSunday.

The caretaker government, taking the final legislative step towardsseparation of the judiciary from the executive, promulgated the Code




of Criminal Procedures (Amendment) Ordinance on Sunday, makingprovisions for separate judicial and executive magistracy.

The draft bill of the ordinance, approved by the council of advisers onFeb 12-2007, was sent to Bangabhaban last evening for the finalconsent of the president for the promulgation.

According to sources in the law ministry, concerned officials of theministry were kept standing by at Bangabahaban, and after thepresidential approval they sent the ordinance to the BG press, theofficial printing press of the government, for publication.

The sources, however, could not confirm whether it would be possiblefor them to submit the printed copy of the ordinance to the AppellateDivision of the Supreme Court this morning, when the court resumesthe hearing of the proceedings of the contempt cases against 13bureaucrats, including four top-ranking officials, for procrastination inthe implementation of the 12-point directive and for distorting thecourt’s orders on separation of the judiciary from the executive.

The court on February 2 ordered the caretaker government to submitthe amended CrPC to the court by February 12.The ordinance will, however, come into effect on the date when the

rules will be made effective. The rules will be made effective by agazette notification on a date fixed by the Supreme Court.

The enforcement of the ordinance, which proposes 100 amendments tothe Code of Criminal Procedure 1898, will strip the executivemagistrates, including deputy commissioners, of judicial powers and

functions. But it will not make the judiciary completely independent of the executive, as the officers of the administrative service will continueto perform judicial powers and functions under an interim arrangementuntil a sufficient number of officers are appointed to judicial service.

They will, however, be transferred to judicial service on deputation forthe interim period.On completion of the interim period, the executive officers will beallowed to choose either to return to administrative service or stayback.

Once the ordinance makes provisions for establishment of separate judicial and executive magistracy and separate criminal courts —courts of sessions and courts of magistrates — the judiciary willbecome independent of the executive, and the executive magistrates,including deputy commissioners, will be stripped of judicial powers andfunctions.

The cases pending with the court of the district magistrate or




additional district magistrate will be transferred to the court of thesessions judge of the district, and the cases pending with the court of executive magistrate will be transferred to the chief judicial magistrateof the district, says the ordinance.According to the ordinance, there will be separate judicial and

executive magistrates.The officers of the administrative service, whowill be appointed as administrative magistrates, will not lose theexecutive powers and functions they currently have, including thepower to command law-enforcers to disperse any unlawful assembly,to endorse a warrant or order for removal of an accused personarrested under warrant, to enable search by postal and telegraphauthorities for documents and to detain them, to issue searchwarrants, to require security to keep peace or for good behavior, tomake orders as to local nuisance, to require security for good behaviorin case of sedition, to cancel bonds for keeping the peace and toimpose Section 144 of the Code of Criminal Procedure.Earlier, on January 16, the caretaker government framed four sets of rules on judicial service, taking the penultimate step for separation of the judiciary.

Judiciary separation comesinto force formNov 1, 2007

The judiciary becomes independent of the executive form Nov 1, 2007with 218 judicial magistrates, 224 courtrooms, 1,043 staff membersand four lakh criminal cases pending with the magistrate courts. Thechief adviser, Fakhruddin Ahmed, will inaugurate the Dhaka JudicialMagistracy and Dhaka Metropolitan Judicial Magistracy in a

ceremony Nov 1 morning at the Bangladesh-China FriendshipConference Centre. The chief justice, M Ruhul Amin, will also addressthe occasion as special guest. Briefing newsmen at his office onWednesday, the Supreme Court registrar, Ikteder Ahmed, said 218magistrates — 202 from the judiciary and 16 from the administrativecadre service who opted in to judicial service — would start running




the judicial magistracy. ‘Everything is set. Courtrooms, manpower andother logistic supports are in place,’ he said. Six hundred and fifty-fiveposts of judicial magistrates have been created to meet the demandsof the courts in districts.The remaining 453 magistrates will be recruited in three months by

the Judicial Service Commission, said Ikteder. Once the judicialmagistracy starts functioning, 218 judicial magistrates will need to dealwith more than four lakh criminal cases, now pending with the courtsrun by 635 magistrates across the country. According to the reportsubmitted by the government to the Appellate Division of the SupremeCourt, 4, 84,832 cases, as of February 28, were pending with the courtsof magistrates across the country and at least 890 magistrates wererequired to deal with them. The judiciary becomes separate from theexecutive following the 12-point directive issued by the AppellateDivision on December 2, 1999 in its landmark judgment in thegovernment appeal against the High Court verdict in Masdar Hossain’scase, popularly known as the separation of judiciary case. The courtalso ordered the government to report back on the compliance of thedirectives by May 31, 2000. All the subsequent governments tookrepeated 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 financialindependence 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 CriminalProcedure 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 alliancegovernment on January 28, 2004 formed the Judicial ServiceCommission after framing the Judicial Service Commission Rules. TheSupreme Court issued a rule on nine bureaucrats on November 29,2004 to explain why they would not be punished for contempt of courtfor distorting its orders on the separation of judiciary. It also issued arule on four top secretaries, including then principal secretary KamalUddin Siddiqui, on April 3, 2006 to explain why they would not beprosecuted for contempt of court for their procrastination inimplementing 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 theCode of Criminal Procedure contrary to its directives and ordered thegovernment to make fresh rules and ordinance the amendment to thecode. The interim government accordingly framed fresh rules on

January 16 and promulgated the CrPC (Amendment) Ordinance onFebruary13.

The full court meeting of the Supreme Court, attended by all theSupreme Court judges chaired by the chief justice, M Ruhul Amin, onSeptember 27 decided that the Code of Criminal Procedure(Amendment) Ordinance, which amended the Code of CriminalProcedure on February 11 in accordance with the directives of theSupreme Court, will come into effect on November 1, 2007. The ruleswere given effect in keeping with the Supreme Court advice. The full-

court reference (meeting) of the Supreme Court of May 10 decided toput in force the two sets of rules on the judicial service on July 1. Oncethe amended Code of Criminal Procedure comes into effect, the judicialservice, including judicial magistracy, will come under the directsupervision and control of the Supreme Court. The president will needto exercise his duties regarding the appointment, posting, control anddiscipline of the service in consultation with the Supreme Court.According to the rules, from now on, the president will need to exercisehis powers regarding appointment, promotion, posting and control and

supervision of the judicial service, including judicial magistracy, inconsultation with the Supreme Court. In the case of any difference of opinion between the president and the Supreme Court, the SupremeCourt’s opinion will prevail, the rules said. According to the rules andthe amended Code of Criminal Procedure, the country will have fromNov 1,2007 two sets of magistrates — judicial and executive — to dealwith different functions .The country will also have separate criminalcourts — courts of sessions and of magistrates — and all of them willbe run by judicial officers.

The 12-point directive

The lower judiciary comes under the Supreme Court as the judiciarybecomes independent of the executive today as a result of the 12-pointdirective of the Supreme Court.The Appellate Division of the Supreme Court on December 2, 1999




detailed the directives for the separation of the judiciary in its judgment in the government appeal against the High Court

Verdict in the Masdar Hossain case:

Masdar Hossain and 217 other judges of the lower judiciary filed a writpetition on November 19, 1995 seeking redress of their financialdiscrimination in relation to other services of the government.The case came to be known as the separation of the judiciary case as

the High Court on May 7, 1997 delivered the verdict in the casedirecting the government to separate the judicial services from otherservices of the republic.The finance ministry preferred an appeal against the verdict and the

Appellate Division on December 2 finally pronounced its judgmentdetailing the 12-point directive.

The directives are: It is declared that the judicial service is a service of the republic withinthe meaning of Article 152(1) of the constitution, but it is a functionallyand structurally distinct and separate service from the civil executiveand administrative services of the republic with which the judicialservice cannot be placed on par on any account and that it cannot beamalgamated, abolished, replaced, mixed up and tied together withthe civil executive and administrative services.

the word “appointments” in Article 115 means that it is the presidentwho under Article 115 can create and establish a judicial service andalso a magistracy exercising judicial functions, make recruitment rulesand all pre-appointment rules in that behalf, make rules regulatingtheir suspension and dismissal but Article 115 does not contain anyrule-making authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the constitution and theServices (Reorganization and Conditions) Act, 1975 have no applicationto the above matters in respect of the judicial service and magistrates

exercising judicial functions. The creation of BCS (judicial) cadre along with other BCS executive andadministrative cadres by Bangladesh Civil Service (Reorganization)Order, 1980 with amendment of 1986 is ultra vires of the constitution.It is also declared that Bangladesh Civil Service Recruitment Rules,1981 are inapplicable to the judicial service.

The appellant and the other respondents (government) to the writ




petition are directed that necessary steps be taken forthwith for thepresident to make rules under Article 115 to implement its provisions,which is a constitutional mandate and not a mere enabling power. It isdirected that the nomenclature of the judicial service shall follow thelanguage of the constitution and shall be designated as the judicial

service of Bangladesh or Bangladesh judicial service. They are furtherdirected that either by legislation or by framing rules under Article 115or by executive order having the force of rules a Judicial ServicesCommission be established forthwith with majority of members fromthe senior judiciary of the Supreme Court and the subordinate courtsfor recruitment to the judicial service on merit with the objective of achieving equality between men and women in the recruitment.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), pay, allowances, pension(as a matter of right, not favor) and other terms and conditions of service, consistent with Articles 116 and 116A, as interpreted by us, beenacted or framed or made separately for the judicial service andmagistrates exercising judicial functions keeping in view theconstitutional status of the said service.

The impugned orders in the writ petition dated 28.2.94 and 2.11.95 aredeclared to be ultra vires of the constitution for the reasons stated inthe judgment. The appellant and the other respondents to the writpetition are directed to establish a separate Judicial Pay Commission

forthwith as a part of the rules to be framed under Article 115 toreview the pay, allowances and other privileges of the judicial servicewhich shall convene at stated intervals to keep the process of review acontinued one. The pay etc, of the judicial service shall follow therecommendations of the commission.In exercising control and discipline of persons employed in the judicial

service and magistrate exercising judicial functions under Article 116the views and opinion of the Supreme Court shall have primacy overthose of the executive.

The essential conditions of judicial independence in Article 116A,elaborated in the judgment, namely, (1) security of tenure, (2) securityof salary and other benefits and pension and (3) institutionalindependence from the parliament and the executive shall be securedin the law or rules made under Article 133 or in the executive ordershaving the force of rules.the executive government shall not require the Supreme Court of




Bangladesh to seek their approval to incur any expenditure or any itemfrom the funds allocated to the Supreme Court in the annual budgets,provided the expenditure incurred falls within the limit of thesanctioned budgets, as more fully explained in the body of the

judgment. Necessary administrative instructions and financial

delegations to ensure compliance with this direction shall be issued bythe government to all concerned including the appellant and otherrespondents to the writ petition by 31.5.2000. 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 setaside. The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further constitutionalamendment is necessary is set aside. If the parliament so wishes it canamend the constitution to make the separation more meaningful,pronounced, effective and complete. Until the Judicial Pay Commissiongives its first recommendation the salary of judges in the judicialservice will continue to be governed by status gulp ante as on 8.1.94vide paragraph 3 of the order of the same date and also by the furtherdirections of the High Court division in respect of assistant judges andsenior assistant judges. If pay increases are affected in respect of otherservices of the republic before the Judicial Pay Commission gives itsfirst recommendation the members of the Judicial Pay Commission willget increases in pay etc commensurate with their special status in theconstitution and in conformity with the pay etc that they are presently

receiving.

Judiciary begins new journey after separationfrom .

Executive

The judiciary on Nov 1, 2007 began its new journey through itsseparation from the executive control in a bid to fulfill the people’s




long-cherished dream for quick and unfettered dispensation of justice.Chief Advisor Fakhruddin Ahmed formally inaugurated the DhakaDistrict Judicial Magistracy and the Dhaka District Metropolitan

Magistracy Nov 1, 2007 morning at the Bangladesh-China FriendshipConference Centre. Chief Justice M Ruhul Amin attended the function

as special guest. Law Advisor Barrister Mainul Hosein was in the chair.Nov 1, 2007 is the historic and memorable day of the country. After

200 years of colonial rule and 36 years since the nation’sindependence, the judiciary has been finally separated from the

executive," Chief Advisor Fakhruddin Ahmed said asking all officialsand employees of the Republic to give all support and cooperation inproper functioning of an independent judiciary, as enshrined in the

constitution of the country."The government wants to see the officials and employees of the

Republic to discharge their duties from their respective positions as perrules and regulations. In view of the changing situation, I call upon allofficials of the executive department to work sincerely and honestly,

side by side with the judicial department," he said.He said that according to the Supreme Court’s decision led by the Chief Justice, the Code of Criminal Procedure (Amendment) Ordinance has

come into force from November 1."Following the separation of the judiciary from the executive, a new

journey of two different types of magistrates, judicial magistrates andexecutive magistrates, has begun. November 1 is a memorable day in

our national life" the Chief Adviser added.He said the judiciary will discharge their duties and responsibilities inorder to fulfill the people’s expectations and uphold the Constitution."So in a democratic country like Bangladesh, as per the Constitution,

the judges have been given independence to protect the basic rights of citizens and uphold the supremacy of the judiciary," Fakhruddin said.

He said it is impossible to establish the rule of law without anindependent

judiciary."As per aspirations of people from all walks of life and the

Constitution’s mandate, the judiciary has been separated with theobjective to establish good governance and the rule of law in thecountry," the Chief Adviser said. Fakhruddin said the government will

ensure necessary legal powers and give support for the executivemagistrates so that they can discharge their administrative

responsibilities smoothly.Meanwhile, all political parties, lawyers’ associations and civil society




leaders have cautiously welcomed the new journey of the judiciary withhigh hopes that people will get justice timely without any influence or

intervention from any quarters whatsoever.Former Chief Justices Mostafa Kamal, M Habibur Rahman, Latifur

Rahman, Mahmudul Amin Chowdhury, KM Hasan and Syed JR Mudassir

Husain were present at the function, organized by the Ministry of Law.Advisers of the caretaker government, sitting and former judges of theSupreme Court, noted jurists, diplomats, high dignitaries, distinguishedpersonalities and senior civil and military officials were also present on

the occasion.

End

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Separation of Judiciary

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