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Bangladesh Business Law Report

Bangladesh Business Law Report

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Published by Rubaiyat_Saad_8361

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Categories:Types, Business/Law
Published by: Rubaiyat_Saad_8361 on Aug 06, 2010
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“The higher judiciary is expected under theconstitution to supervise the administration of thelower judiciary
Rubaiyat Saad MajidNorth South UniversityIntroduction:
After many years of false promises and void words of assurance that were never followedthrough with action, the subordinate judiciary was finally separated from the executive on November 1. Judiciary
is one of the indispensable organs of an independent sovereignnation state. The judiciary is viewed as the last resort for getting justice from timeimmemorial from pole to pole.A judiciary independent of executive’s control is a prime prerequisite for theestablishment of rule of law, which, in turn, is a fundamental tenet of democracy.
 Article 35(3
 ) of our Constitution provides that –"Every person accused of a criminal offence shall have a right to a speedy and public trial by an independent and impartial court or tribunal established by law."
The court identified 5 (five) conditions of judicial independence those are security of  judicial possession; Security of judicial salary; Institutional independence of subordinate judiciary; Judicial arrangements by separate Judicial Service Commission; andAdministrative independence and financial autonomy of judiciary.
Definition of judiciary:
Judiciary is the system of law courts that administer justice and constitute the judicial branch of government. This system is comprised of a Supreme Court, Circuit courts of general jurisdiction, andLower courtsof limited original authority.The judiciary has been defined as the last resort of the common people. The judiciary has been the major recourse of the human rights community in the enforcement of humanrights.
See Cardozo, Benjamin N. (1998).
The Nature of the Judicial Process
. New Haven: Yale University Press.
Right to protection of law- To enjoy the protection of the law, and to be treated in accordance with law, and only inaccordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for thetime being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
At the peak of the country's judiciary structure stands the Supreme Court. It consists of the High Court Division and the Appellate Division
. The Supreme Court serves as theguardian of constitute and enforces the basic rights of the citizens.Subordinate courts exists at district and Thaana levels as well as special and tribunalcourts such as the Administrative Tribunal, Family Courts, Labor Tribunal, Land,Commercial, Municipal and Marine Courts. Chief justice adorned the highest position in judicial system who is appointed to the office by the Governor from five appointmentdistricts.
 Judicial independence:
Judicial independenc
e is the doctrine that decisions of the judiciary should be impartialand not subject to influence from the other branches of government or from private or  political interests. In most cases, judicial independence is secured by giving judges longtenure, and making them not easily removable.The judiciary became independent of the executive on 1
November with 218 judicialmagistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pendingwith the magistrate courts. On 31 October, the day before the judicial separation wasimplemented, many people across the country rejoiced as the official formalities wereconcluded to give effect the separation the following day. As per the constitution (article115 and 116)
the appointment and control of judges in the judicial service or asmagistrates exercising judicial duties be made by the president
History of judicial independence:
However, instead of separating the judiciary which was now not only a constitutionalobligation for the government but also a legal compulsion following the judgment in theMasdar Hossain case, there was more foot-dragging by the then government. Theimplementation of this condition was delayed almost 28 times ever since the directiveswere issued.But unfortunately no government since 1972 when the constitution was framed ever took steps to effect the separation. In 1999 while delivering historic judgment in the famous'Masder Hossain's case', popularly known as 'separation of judiciary' the AppellateDivision of Supreme Court asked the government to take steps for separation as per Article 22 of the Constitution.The Caretaker Government (CG)
of 2001 took all measures to ensure the separation of  judiciary, but stopped at the request of both the major political parties, who expressedtheir desire to implement once came to power. But unfortunately, it is not ensured by thewinning party within their full tenure. It has been more than six years since the judgment
See Gavin Drewry, Louis Blom-Cooper, Charles Blake,
The Court of Appeal 
(Hart Publishing 2007)
Appointments to subordinate courts and Control and discipline of subordinate courts in the constitution of Bangladesh.
In the parlance of institutional government, a caretaker government is one which normally takes care of state administration for aninterim period until the regular new government is formed. In established parliamentary system, there is a convention of transformation of the outgoing government into a caretaker government for the time being before the holding of general election.
was pronounced, but in this long period three consecutive governments respectively haveonly sought 22 extensions of time.Finally the last CG in a landmark move on January 16, 2007 published the gazettenotifications of four rules relevant to separating the judiciary from the executive.Ending all conjectures concerning smooth transition, the judiciary has finally been madean independent organ from November 1. This is undoubtedly a milestone that has beenachieved to advance and ensure greater judicial independence and thereby establish ruleof law in the country.
 Judicial Independence in Bangladesh:
Apparently, judicial independence often begins as a contradict voice, and always requiresobservant protection. Independence of judiciary
means a fair and neutral judicial systemwhich can afford to take its decision without any intervention of executive or legislativeorgan of the government. Independence of judiciary truly means in accordance with their own sense of justice without submitting to any kind of pressure or influence is it from theexecutive or legislative or from the parties themselves or from the superiors andcolleagues. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequateremuneration and privileges.According to the rules and the amended Code of Criminal Procedure, the country hadfrom 1
November two sets of magistrates judicial and executive to deal with differentfunctions. The country will also have separate criminal courts which are courts of sessions and of magistrates as well as all of them will be run by judicial officers.It is impossible to ensure the rule of law, upon which other human rights depend, without providing independent courts and tribunals
to resolve disputes independently. Thecomplete independence of judiciary is the first major step in the process of itsdevelopment.
The need for separation:
A state is primarily comprised of three organs- the executive, the judiciary, and thelegislature. The legislature refers to parliament, which is responsible for making laws.The judges, courts and the trail events are together called the judiciary, which ensuresthat the laws are adhered to by the government and the citizens of the state.It may be evident why the political parties delayed the process for so long from the factthat the judiciary, especially the lower judiciary, was used by the parties in power for their self-interests. ‘The reining political party often uses the judicial system, to harassthe opposition party.
Hossain Mollah1 Awal, Separation of Judiciary and Judicial Independence in Bangladesh, August 2007.
david, walker (1980),
Oxford Companion to Law
, Oxford University Press, pp. 1239

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