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CHAPTER 1
PROLOGUE
1.1) Introduction:
The core topics of this Assignment are A Critical Analysis on Judicial Independence in
Bangladesh, which are the fundamental values of the administration of justice in a democratic
society. The assignment examines the issues of Judicial Independence and their links with public
confidence in the judiciary. Its main purpose is to evaluate the existing conditions of Judicial
Independence in Bangladesh.
Judicial Independence is an important feature of a contemporary democratic country. These
concepts are matters of ongoing public debate requiring scholarly inquiry into the values of the
Independence of judges. However, there has not been any systematic and comprehensive study
by any researcher so far of these aspects of Judiciary in the country. This Assignment is intended
to fill the lacunae in scholarly studies.
The main themes to be addressed in the Assignment are the clash between the older concept of
controlling the working of judges and the modern concept of ensuring the independence of
judges from any kind fob interference or influence and the continued failure to meaningfully
integrate the old and new values of Judicial Independence. The Assignment addressed these
problems and focuses on the answers which are implicit in the adoption of proper principles of
judicial Independence.

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1.2) Aim Of The Study:


The main aim of this Assignment is to evaluate the existing conditions of Judicial Independence
in Bangladesh in comparative perspective In view of the requires this aim is reformulated into
some specific objectives. They are:
(1) To review the existing conditions of Judicial Independence in Bangladesh.
(2) To analyze and assess the existing measures for ensuring Judicial Independence in
Bangladesh.
(3) To analyze how Judicial Independence can be reconciled with Judicial Accountability
in Bangladesh.
(4) To propose improvements of the conditions of Judicial Independence in Bangladesh.
In order to attain these objectives, certain standards or benchmarks are necessary to judge the
conditions of Judicial Independence in Bangladesh. With this end in mind, the Assignment aims
to discover general principles, policies, mechanisms and example of best practices concerning
Judicial Independence. In this regard, the study vies and analysis the secondary literature,
international standards and law and practices of some common law jurisdiction in accordance
with the methodology of the research and the ways of treatment of the data discussed next.

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1.3) Arrangement of the Assignment:


Chapter 2 provides a conceptual background for study. In it has analyzed the concepts of
Judicial Independence. It discusses the links between the doctrine of separation of powers and
the concepts of Judicial Independence and its elements. This Chapter also analyzes the
importance of Judicial Independence in the contemporary world for the protection of the rights
and liberties of the citizens of a country and for the maintenance of public confidence in the
justice system. It further discusses the concept of Judicial Independence and the implications for
public confidence in the judiciary.
Chapter 3 provides some perspective on judiciary in Bangladesh. This Chapter identifies
the link between the history of Judicial Independence and accountability in Bangladesh; it gives
an outline of the current judicial system, and identifies the major themes of the study.
Chapter 4 takes on the issues related to the appointment of judges. It discusses, firstly, the
general principles and importance of established criteria for judicial appointment and examine s
the criteria followed in appointing judges in the country. Secondly, it analyzes the general
principles and importance of the mechanisms for judicial appointment including the practice of
some common law countries and examines the mechanisms used in appointing judges.
Chapter 5 deals with the issues relating to tenure of judges which includes security of
judicial tenure change of tenure and other terms and conditions of judicial service, and part-time
and temporary appointment of judges. At first, the general principles and importance of these
issues are discussed, and than the law and practice are examined.
Chapter 6 deals with the issues relating to judicial discipline with special reference to the
tension and reconciliation between judicial independence and accountability in disciplining
judges. It clarifies judicial discipline as an important means of ensuring judicial accountability
and analysis the causes and mechanisms for discipline of judges. It also discussed the practice of
disciplining judges in some common law countries and then examines the causes and
mechanisms for judicial discipline in Bangladesh.
Chapter 7 deals with the issues relating to media scrutiny of the judiciary. It begins with a
discussion of the role of media as an important means of scrutinizing judges and maintaining
public confidence in the judiciary, and then goes on to examine the role of the media in
scrutinizing judges.

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Chapter 8 discusses the role of the bar as an informal mechanism of judicial
accountability. It analyses the relationship between judges and the bar and the role of the bar in
scrutinizing judges. It then examines the role of members of the bar in scrutinizing judges.
Finally, Chapter 9, based on the summaries of findings and recommendation in each
chapter, present a general conclusion. It provides a synopsis of the background including the
strengths and weakness of the judiciary in Bangladesh, and identifies specific problems
addressed in the Assignment. It also summarizes the main arguments of the Assignment and
recommends ways of preserving and building on the values of judicial Independence in
Bangladesh.

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1.4) Research Methodology:


This Assignment examines the law and practice relating to Judicial Independence in Bangladesh.
It evaluates the condition of Judicial Independence in Bangladesh against certain arguments
based on secondary literature, international standards, and the law and practices of some
common law countries. In order to give complete shape to this thesis, a range of research
methods is used;
(1) Review of secondary literature and international instruments on Judicial
Independence;
(2) Examination of the constitutional provisions regarding the judiciary in Bangladesh
and some other common law countries;
(3) Analysis a statutory law

and a case law relating to Judicial Independence in

Bangladesh and some other common law countries;


(4) Review of relevant public records, government notifications, available statistical data
and media reports;
(5) Case studies of specific incidents relating to the judiciary in Bangladesh; and
(6) Surveys on media reporting on the judiciary in Bangladesh during a specific period.
Discussion of the conceptual issues in chapter 2 is based on the secondary literature including
books, journals and electronic materials, and constitutional law, statutory law and case law of
different common law countries. It also draws on the provisions of some international
instruments which are related to judicial independence. They are : Universal Declaration on
Human Rights 1948, International Covenant on Civil and Political Rights 1966, Universal
Declaration on the Independence of Justice [Montreal Declaration] 1983, United Nations Basic
Principles on the Independence of the Judiciary [UN Basic Principles] 1985, Beijing Statement
of Principles of the Independence of the Judiciary in the LAWASIA Region [ Beijing Statement]
1995, and International Bar Association Code of Minimum Standards of Judicial Independence
[IBA Code ] 1982.
All these sources of materials are also used in the substantive chapters, from chapters 4 to 8,
although the substantive chapters concentrate on three principal international instruments which

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are specifically concerned with the independence of Judges. These are: the Montreal Declaration
1983, the UN Basic principles 1985 and the Beijing Statement 1995. Although the IBA Code
1982 is also concerned with judicial independence, it is not reviewed in the substantive chapters
because the main provisions of this Code are incorporated in the Montreal Declaration.
The Montreal Declaration 1983, the UN Principles 1985, and the Beijing Statement 1995 set out
some standards which cover all the major aspects of judicial independence including individual
independence of Judges, collective independence of the Judiciary, and judicial discipline and
removal. International standards are intended to ensure protection of judicial independence from
all actual or apparent interference. Although these standards have no binding force, they are to be
considered when judging the conditions of the Judiciary in any country. Therefore, these
instruments are considered in appropriate cases of this study.
Not all the three international instruments ( Montreal Declaration 1983, UN Basic Principles
1985 and Beijing Statement 1995) are used in every chapter because they do not cover all aspects
of this study. When provisions relevant to the issues of the research are available in any
international instruments, they are reviewed.
In respect of the law and practice in Bangladesh, the materials are collected from a wide range of
sources including the Constitution, statutory law, statutory regulatory orders, official rules and
notifications, Public records, case law, newspapers and the Internet. Most of the statutory
regulatory orders, rules or notifications are collected from published documents including the
Bangladesh Gazette and Establishment Manual. In addition, we collected some materials directly
from the Ministry of law, Justice and Parliamentary Affairs and the Supreme Court of
Bangladesh. For example, the Code of Conduct for Judges, Gradation List of Judges, notification
for appointment of Judges and list of superseded judges. Moreover, in order to understand some
practices, for example, the governments attitude to the incidents of court boycott, We talked
with officials of the Ministry of Law, Justice and Parliamentary Affairs.
With a view to identifying the nature of notification about the judiciary conveyed by the media in
Bangladesh, We conducted a survey from 15 October 2000 to 30 November 2000 during our
field trip in Bangladesh. The survey was conducted on reports published by the three national
Daily newspapers, television and radio.

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Among the leading daily newspapers with wide circulations all over the country, we surveyed the
reports published in three popular daily newspapers, the Daily Star, the Dainik Sangbad and the
Dainik Manavzamin. The Daily Star and the Dainik Sangbad are broad-sheet newspapers
published in English and Bangla respectively while the Dainik Manavzamin is a tabloid
newspapers published in Bangla.
There are now four television channels in Bangladesh: Bangladesh Television(BTV), Channel I ,
ATN Bangla and NTV and earlier, there was Ekushey Television (ETV) . The BTV is fully
controlled by the government of Bangladesh; the Ministry of Information scrutinizes all its
programs including News Bulletins. The ETV is a private channel newly established in April
2000 and controlled by its own authority that is independent of the government of Bangladesh.
With a view to gathering information about the courts conveyed by television, we surveyed the
programs aired by the BTV and ET, as these were the only two television channels operating at
the time of the survey for the study.
The single national radio broadcaster is known as Bangladesh Betar and there are six radio
stations located in Dhaka, Rajshahi, Chittagong, Sylhet, Khulna and Rangpur. The government
controls all these stations and they broadcast regional and national programs. Generally, the
national programs are broadcast simultaneously from all stations and surveyed only the national
programs.

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1.5) Treatment of the Data:


Chapter 2 forms the primary arguments of this study which emphasizes that public confidence in
the judiciary is the most important requirement for its existence as an institution and judicial
independence is a prerequisite to maintaining public confidence. It also emphasis judicial
accountability is a significant factor that can contribute to, erode or enhance public confidence
and undermine or strengthen judicial independence. This primary argument is basis of all
substantive chapters (from 4 to 8) of the Assignment.
In each substantive chapter there are two basis sections, one related to general perspectives and
the other specific to Bangladesh. The sections on Bangladesh evaluate the conditions of Judicial
Independence in light of arguments developed in the general perspective sections.
The arguments of the general perspective sections are based on the secondary literature, the three
international instruments and the available case law of common law jurisdiction. In addition, law
and practice in various countries of the common law tradition are discussed in some cases to
discover the best practices. Thus, the general perspectives section of each substantive chapter
identifies some benchmark and examples which are later used to judge the conditions of Judicial
Independence in Bangladesh.
In section on Bangladesh, the data collected from different sources, as mentioned above, are
analyzed and the conditions and the condition of Judicial Independence are evaluated in
comparison with the arguments or benchmarks developed in general perspective section.
On the base of the evaluation in the Bangladesh sections, in the conclusion of each chapter some
suggestions are offered to improve the conditions of Judicial Independence. These are drawn
together in Chapter 9.
In respect of citation in the Assignment, all reference from books, journal articles or other
articles collected from hard copy or from electronic resources are cited in the relevant footnotes
with authors surname, publication year and page number or paragraph number. In referencing
electric materials, in most cases the paragraph number is cited with square brackets. However, in
some cases where the paragraph number is no available or identifiable only the date of
publication is cited. The uniform resource locator of each electronic source is followed by the
date of accesses.

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The concept of Judicial Independence and Judicial Accountability encompass a wide range of
elements which may be divided into two categories. The first category involves issues related to
individual judges including the appointment, posting, promotion and transfer of judges, tenure
and other terms and conditions of judicial service, judicial discipline and other forms of informal
scrutiny of judges. The second category involves issues mainly related to court administration
including assignment of cases, appointment and control over court stuff, maintenance of court
building, preparation of judicial budgets and allocation of resources.
The principle aim of the Assignment, as already included, is to discussed in the issues related to
individual judges, particularly appointment, tenure, discipline and informal scrutiny of judges by
the media and the bar. The issue of promotion is included as an aspect of judicial appointment.
The study does not concern itself with issues relating to posting, transfer, and other term and
conditions of service, and court administration.
Because this study is concerned with Judicial Independence in Bangladesh, it is confined to the
common law tradition and the principles of the civil law system are not considered in this
Assignment.
An important limit on the scope of this Assignment occurred because it discusses the activities of
courts or judges. Sometimes elaborate comments cannot be offered because of the law of
contempt of court. It is mentioned in the Chapter 7 that the law of contempt is vague and
uncertain and there is always a risk of liability for contempt of court. Therefore, the Assignment
carefully avoids any comments about the judiciary which may be the subject to the law of
contempt. If, however, inadvertent mistake is somehow made, it is hope that the mistake would
graciously be absolved.
Lastly, This Assignment uses the terms Judge to mean both the judges and magistrates
exercising judicial; functions and the terms Judiciary to mean the judicial branch of the
government.