Professional Documents
Culture Documents
Of Bangladesh
Written By Md. Mahbubul Karim
Student of LL.B
Stamford University, Bangladesh
E-mail: statesman_mahbu@yahoo.com
Introduction
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 into
consideration some of the recent discussions made in the Beijing
Statement of Independence of the Judiciary (a statement resulting from
the cumulated views of thirty-two Asian and Pacific Chief Justices)
Judicial independence is defined, in this report 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).
Part VI of the constitution deals with the judiciary. Art. 7 provide that all
powers in the Republic shall be effective only under and by authority of
the constitution. The responsibility of seeing that no functionary of the
state oversteps the limit of his power is a necessity, on the judiciary.
An analysis into these three organs and the relations between them is
to be done with the experience in different countries along with India
which will give a clear idea about this doctrine and its importance in
different Constitutions.
Today all the systems might not be opting for the strict separation of
powers because that is undesirable and impracticable but implications
of this concept can be seen in almost all the countries in its diluted
form.
Judiciary from the executive at all levels in 1973 and 1974 (in West
Bengal in 1970) respectively. Ensuring justice and independence of
judiciary will remain a far very until lower judiciary is separated from
the executive. It is mandatory and constitutional obligation of the
Government to ensure separation of the judiciary from the executive.
Five years have been clasped since the Supreme Court gives it
directives in Masdar Hossain case. Law Minister is seeking for
additional six years in this regard we can fairly questions how long will
it take to ensure separation of judiciary from the executive?
Lack of Consciousness
Of the total people constituting the electorate of our country, I am
sure more than 10% voters do not know what actually is mean by the
separation of the judiciary and for that matter what is the bright side of
the proposed separated judicial system. To address these questions we
should have at least an average knowledge of our present judicial
system. Lack of consciousness people’s has no strong movement for
this reasonable and demandful wants.
Overlapping Competencies
Corrupted lawmakers
The air of separation of judiciary is entering; side by side it has also
bad smell. Maximum judges and lawmakers are corrupted. The takes
bribe spontaneously and make the case diverted. It is a very common
phenomenon in our country. So if the independent judiciary is vested
upon the dishonest lawmakers, there must be disorders in law and
order 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 the
government has so long remained headless and negligent to the High
Court Division’s directives. When the government itself does not honor
the highest court of the country, how can the people in general confide
in 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 the
implementation of the Supreme Court’s directives. Formally land
officially the government is committed to implementing these
directives, which would also include some changes in the criminal
procedural laws. However these repeated extensions suggest
continuing challenges to the ultimate implementation of University of
Rajshahi, Rajshahi the directives. It is strongly felt everywhere that
British Period
Bangladeshi Period
First Stage
The government may by notification appoint some particular
Magistrate at each station exclusively for judicial work. This can be
given effect without any additional expenses or administrative
difficulties.
Second Stage
This should be the nature of separation of judicial function form
executive as envisaged in the CrPC (East Pakistan Amendment) Act
1957 (Act No. 36).
Final Stage
The reason lies, as I wrote back in 1998, with some provisions in the
original constitution of Bangladesh regarding the dependency
syndrome 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 the
constitution all authorities, executive and judicial, in the Republic shall
act in aid of the Supreme Court. But when the Government states that
separation of judiciary is largely a policy matter; again it reiterates that
it will implement the judgment today or tomorrow what can the apex
court do? How long the arms of the apex court could go to catch the
wrongdoer or someone who is not obeying the judgment of the court or
undergoing delaying tactics? True it is that the Supreme Court of a
country cannot modify the course of history; neither can it catch hold
of and throttle someone who is disobeying its decision; it can only
pronounce judgments and refer to the other departments of the
government to execute it; if the executive disobeys its decision, it can
at best contempt someone but it does lack any real stick to beat the
executive. The machineries of democracy are not supposed to run in
that hostile manner; they are built on the concept of check and
balance and this balance is provided for in article 112 of the
constitution as far as the implementation of the Supreme Court's
decision is concerned which the executive must bear in mind. If the
executive flouts the decision of the apex court so will do the
beneficiaries of political parties leading the country into a land of
politico-legal anarchy. The judgment in Masder Hossain case by the
Supreme Court to direct the government to separate judiciary is not
something like a bolt from the blue. Since independence almost every
mainstream political party made pre-election pledge that if voted to
power, they would separate judiciary from the executive but every
Three tiers of Magistrates' Courts, i.e. 3rd Class, 2nd Class and 1st
Class Magistrates' Courts- all these are the courts of first instance for
criminal cases. Given that criminal cases filed in a year are far greater
in number compared to the number of civil cases, these criminal courts
have a great potential in shaping the base of our legal system.
However, unfortunately for reasons, principally, of some legal
shortcomings these courts are playing negative role at a greater extent
frustrating the very purpose of criminal justice. The shortcomings are
as follows:
Independence of judiciary
A dream comes true
The judiciary has been defined as the last resort of the common
people. It is the sector that actually protects and harmonizes the
varying interest of the members of the society. The judiciary has been
the major recourse of the human rights community in the enforcement
of human rights. Litigation has been identified as one of the key means
of protecting and enforcing the rights of the individual. No other
institution 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 the
courts. The judiciary comprises of all institutions established there
under for the administration of justice to protect, vindicate and enforce
the rights of the people. The judiciary is charged with the responsibility
of dispensing justice and safeguarding the rule of law. In any civilized
society, judiciary is the last resort for the people to seek shelter and
get relief against the offenders and wrong doers.
The constitution is the supreme law of the country and for Bangladesh,
the form of government has been spelled out in the constitution that it
will be a Republic. The constitution lays down specific functions of
different organs of the government. The judicial system in Bangladesh
has been a legacy of the judicial system as introduced by the British
during the colonial days. The parliament is supreme and the lawmakers
alone bring about any change by amending the constitution as and
Now, it is expected that the complete separation will take place during
the present CG by implementing the amended the CrPC in order to
fulfill the expectation of the people.
If the ordinance were put into effect, the judiciary would be separated
from the executive and the magistrates, who are currently under the
control of the executive, will then come under the authority of the
higher court and be known as judicial magistrates.
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 gazette
notification is printed and published, the ordinance will be in effect.”
All actions related to the separation of the judiciary will be then taken
under the amendment.
Attorney General (AG) AJ Mohammad Ali told the court that the three
other rules are being printed in the press for publication and that he
will receive them soon.
When asked by the court about the CrPC amendment, the AG sought
for another 10 days for the task, but the court did not respond to his
request.
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, who
was present in the court, later, told reporters, “We will come to know
how much deviation has taken place from the Supreme Court
guidelines once all the four rules and the CrPC amendment are placed
before the court.”
The SC directed them to appear before the court at the next hearing on
Sunday.
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 rules
were given effect in keeping with the Supreme Court advice. 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. Once
the amended Code of Criminal Procedure comes into effect, the judicial
service, including judicial magistracy, will come under the direct
supervision and control of the Supreme Court. The president will need
to exercise his duties regarding the appointment, posting, control and
discipline of the service in consultation with the Supreme Court.
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.
The judiciary on Nov 1, 2007 began its new journey through its
separation from the executive control in a bid to fulfill the people’s
End