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Independence of judiciary in Bangladesh: An overview

Article  in  International Journal of Law and Management · February 2012

DOI: 10.1108/17542431211189605

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Judiciary in
Independence of judiciary Bangladesh
in Bangladesh: an overview
Md Awal Hossain Mollah
Department of Public Administration, University of Rajshahi, 61
Rajshahi, Bangladesh

Abstract
Purpose – The aim of this paper is to analyze the status of independence of the judiciary in
Bangladesh. It is recognized worldwide that an independent judiciary is the sin qua non of democracy
and good governance. However, without separation of the judiciary from other organs of the state
absolute independence of judiciary is not possible. An attempt has been made in this paper to sketch
the brief historical background of judicial system in Bangladesh through analyzing the meaning and
basic principles of judicial independence and to what extent these principles exists in Bangladesh.
How did the judiciary finally separate from the executive? After separation of the judiciary, what is the
status of executive interference over judiciary in Bangladesh has also been evaluated in this paper.
Design/methodology/approach – The study is qualitative in nature and based on secondary
sources of materials like books, journal articles, government rules, newspaper reports, etc. Relevant
literature has also been collected through Internet browsing.
Findings – In this study, it has been found that from time immemorial the judicial system of
Bangladesh was not completely independent from the interference of the executive branch of the
government. It has also been found that from the beginning of the British colonial rule, the question of
separation of the judiciary from the executive had been a continuing debate. Presently, even after
separation of the judiciary, the interference of the executive over the judiciary is still continuing.
Practical implications – This paper opens a new window for the policy makers and concerned
authorities to take necessary steps for overcoming the existing limitations of the status of judicial
dependence in Bangladesh.
Originality/value – The paper will be of interest to legal practitioners, policy makers, members of
civil society, and those in the field of judicial system in Bangladesh and some other British colonial
common law countries.
Keywords Bangladesh, Colonial rule, Executive interference, Judicial system, Judiciary,
Judicial independence, Legal personnel
Paper type General review

1. Introduction
Independence of judiciary is certainly a foundation stone of rule of law, good governance
and democratic practice all over the world. It protects the weak from the powerful; the
minority from the majority; the poor from the rich; yes, even the citizens from excesses of
government. However, from time immemorial the demand for separation of judiciary
and judicial independence was a much-debated issue among policy reformers,
democratic thinkers and legal practitioners in Bangladesh. Since, the present judicial
system of Bangladesh is basically a replica of the system introduced by British rulers
and the rulers of the early historical periods including British and Pakistan always International Journal of Law and
attempted to control the judiciary through different mechanisms, which include the Management
Vol. 54 No. 1, 2012
appointment, tenure and discipline of judges. Therefore, the practice of executive pp. 61-77
interferences over judiciary is still continuing in Bangladesh. In this paper an attempt q Emerald Group Publishing Limited
1754-243X
has been made to analyze the meaning and basic principles of judicial independence DOI 10.1108/17542431211189605
IJLMA and to what extent these principles exists in Bangladesh. How did the judiciary finally
54,1 separate from the executive? After separation of the judiciary, what is the status of
executive interference over judiciary in Bangladesh has also been evaluated in this
paper.

2. Meaning of independence of judiciary

62 In general, independence of judiciary means the freedom of judges to exercise judicial
powers without any interference or influence. In other words, independence of judiciary
means a fair and neutral judicial system of a country, which can afford to take its
decisions without any interference of executive or legislative branch of government.
It requires that judges should not be subject to control by the government or by any
one rather they should enjoy protection from any threats, interference or manipulation
which may either force them to unjustly favor the government or subject themselves to
punishment for not doing so (Larkins, 1996, p. 44). A comprehensive definition of
judicial independence has been given by Green (1985, p. 135) as below:
The capacity of the courts to perform their constitutional function free from actual or
apparent interference by, and to the extent that it is constitutionally possible, free from actual
or apparent dependence upon, any persons or institutions, including, in particular, the
executive arm of government, over which they do not exercise direct control.
In this study, independence of judiciary means the judges are in a position to render
justice in accordance with their oath of office and only in accordance with their own
sense of justice without submitting to any kind of pressure or influence, be it from
executive or legislative or from the parties themselves or from their superiors and
colleagues (Halim, 1998, p. 299).

3. Principles of independence of judiciary

The concept of judicial independence includes four basic principles, which have been
suggested and recognized through international efforts in this field (Bari, 1993, p. 2).
These principles are:
(1) personal independence;
(2) substantive independence;
(3) internal independence; and
(4) collective independence.

The followings are the elaborated version of these four meanings of judicial
independence.

3.1 Personal independence

Personal independence means that judges are not dependent on government in any way
in which it might influence them in reaching decisions in particular cases. Personal
independence signifies that the tenure of judges and the terms and conditions of their
service are “adequately secured, so as to ensure that individual judges are not subject
to executive control”[1] (cited in Akkas, 2004, p. 22). In the words of Shetreet and
Deschenes (1985), the terms of judicial service including transfer, remuneration and
pension entitlements should not be under the control of the executive government
and the tenure of judges should be granted until a mandatory retirement age. Basically, Judiciary in
these are the essential conditions to ensure that an individual judge may exercise judicial Bangladesh
role without fear or favor, friendliness or ill will (Malleson, 1999).
Therefore, to keep the administration of justice in a fair and impartial platform,
a judge should be “placed in a position where he/she has nothing to be defeated by
doing what is right and little to gain by doing what is wrong” (Dawson, 1954). This
position can be guaranteed by ensuring the individual independence of a judge. 63
3.2 Substantive independence of the judges
Substantive independence refers to the functional or decisional independence of judges
to arrive at their decisions without submitting to any inside or outside pressure. The
substantive aspect of the duties of a judge is the actual decision-making role. It is
connected with the determination of the finding of fact and the application of the relevant
legal norms to the facts of the case. The substantive independence of judges requires that
in performing all the administrative, procedural and substantive duties a judge should
be free from any direct or indirect interference, improper influence or pressure (Shetreet
and Deschenes, 1985, p. 630). Therefore, it ensures the impartiality of judges and their
capacity to make judicial decisions on the merit of cases, without any fear or favor
(Geyh and Tassel, 1998). In determining the minimum standards of judicial
independence the International Bar Association suggested in 1982 that in the
discharge of his judicial function a judge is subject to nothing but the law and the
commands of his ethics (Akkas, 2004, p. 22).

3.3 Internal independence

Internal independence means independence of judges from their 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 in deciding cases. In this regard, the Montreal Declaration 1983 provides:
In the decision making process, judge shall be independent vis-a-vis their judicial colleagues
and superiors. Any hierarchical organization of the judiciary and any difference in grade or
rank shall in no way interfere with the right of the judge to pronounce his/her judgment
freely[2].
The independence of individual judges may be undermined not only by the
outside sources of interference but also by fellow judges, particularly by senior judges
using their administrative power and control (Russell, 2001). This means that threat to
internal independence may come from the superior courts or judges. In addition,
internal independence covers the process of pronouncing judgment that is the actual
decision-making process. Hence, the internal independence of a judge is relevant to both
the procedural and substantive aspects of judicial duties. The procedural duties include
the examination of witnesses, recording of evidence and disposal of interlocutory
matters that are integral parts of the decision-making process (Akkas, 2004, p. 24).
In the common law system there is provision that lower courts must follow the
decisions of superior courts, which may influence the judgment of lower courts. For
example, an appellate court has the power to remand a case back to a trial court for
rehearing. In the order for such a remand the appellate court may direct the issue
or issues to be tried in the case or may give such other directions as are required to do
justice (Akkas, 2004).
IJLMA 3.4 Collective independence
54,1 Collective independence means institutional independence, which is connected with
responsibility for the effective operation of the judiciary as an organ of government. In
its easiest form, judiciary as an institute must be free from interferences of the executive
or the legislature. Financial autonomy of the judiciary is also related to this concept of
collective or institutional independence. If the judiciary as an institution depends on
64 the executive, the legislature or other institutions for its operation, this may affect the
performance of judicial duties by individual judges (Shetreet and Deschenes, 1985). This
facet of judicial independence has a great impact on the individual independence of
judges. A judge may not be able to exercise judicial function independently unless he or
she is a part of an institution with authority over those human and physical resources
incidental to (necessary for) performing judicial functions (Millar and Baar, 1981). So,
collective or institutional judicial independence is necessary to ensure the individual
independence of judges (Winterton, 1995, p. 15). In addition, collective or institutional
independence is linked with court management, which includes assignment of cases,
control over administrative personnel, maintenance of court buildings and preparation
of judicial budgets and allocation of resources. The Montreal Declaration 1983 and the
Beijing Statement 1995 emphasize that the main responsibility for court administration
should be attached to the judiciary (Akkas, 2004). Therefore, collective independence is
indispensable for judicial independence.
Of these four types of independence of judges the substantive independence is the
most important because it is the inner strength of the judges that provides the
steering-force for them to maintain their impartiality in discharging judicial functions
(Halim, 1998). When a judge governs justice, it is presumed and expected that he will
administer justice impartially. In spite of having better protection of collective,
individual and internal independence, if a judge administers justice in a partial way
nothing can abstain him. So, the substantive independence is considered as a cardinal
virtue of judges to maintain impartiality in administering justice.
Therefore, independence of judiciary depends on some certain conditions like mode
of appointment of the judges security of their tenure and discipline of judges.

4. Independence of judiciary in Bangladesh

In the context of Bangladesh I have analyzed independence of the judiciary both
individually and collectively under the classification of four categories such as:
(1) appointment of the judges;
(2) tenure of the judges;
(3) discipline of judges; and
(4) institutional independence of the judiciary.

4.1 Appointment of judges

The basic principle of judicial independence requires that in administering justice
judges should remain free from all kinds of direct or indirect interferences or influences.
Impartial judges and a fair justice system are also the basic requirements of rule of law
and natural justice. However, without impartial and fair selection and appointment of
judges fair judgment is impossible. Therefore, appointment of judges is one of the basic
requirements of independence of judiciary. In Bangladesh in terms of the eligibility
criteria for appointment, judges of both the Supreme Court and subordinate courts can Judiciary in
be classified as career judges and non-career judges (Akkas, 2004, p. 131). Bangladesh
Public Services Commission previously recruited career judges but recently after
separation of judiciary from the Executive Judicial Service Commission (JSC) is
assigned for recruiting career judges. Career judge means those judges who belong to
the judicial service in Bangladesh and initially appointed as assistant judges at the
subordinate judiciary. On the basis of job experience and seniority assistant judges can 65
be promoted to the posts of senior assistant judges followed by joint district judges,
additional district judges and district judges. Furthermore, district judges are eligible
to be appointed as Supreme Court judges having at least ten years of experience[3].
On the other hand, non-career judges in Bangladesh are classified into two
categories:
(1) public servants exercising judicial power; and
(2) practicing lawyers appointed as judges.

Public servants of the executive branch (assistant commissioners, additional deputy

commissioners and deputy commissioners) are appointed to the subordinate judiciary
for trying criminal cases. Judges of criminal cases are of two kinds session judges and
magistrate. Public servants are eligible only for magistrate courts[4].
In Bangladesh, practicing lawyers are commonly known as advocates[5]. Presently,
advocates of Supreme Court having professional experience for a period of not less than
ten years are eligible to be appointed directly as judges of Supreme Court[6].
In Bangladesh three basic principles are followed for appointing judges in Supreme
Court and subordinate courts that include: seniority, merit and quota. Out of three, the
most practicing criteria are seniority. However, the principle of seniority is not always
strictly followed in appointing judges. For example, in 2004 Justice Syed J.R.
Mudassir Husain of the Appellate Division of the Supreme Court was appointed the
14th Chief Justice of Bangladesh bypassing Justices M. Ruhul Amin and Mohammad
Fazlul Karim, two senior judges of the Appellate Division[7]. Similarly, in 2008 President
Prof. Iazuddin Ahmed appointed Justice Mr M.M. Ruhul Amin as the 16th Chief Justice
of the Supreme Court of Bangladesh by superseding Justice Mohammad Fazlul Karim,
who was then the senior most amongst the Appellate Division judges[8].
In addition, generally the most senior judges of the High Court Division
are appointed to the Appellate Division but these principles also violated frequently
in Bangladesh. From December 1985 to November 2000, this occurred nineteen times in
Bangladesh (Akkas, 2004, p. 140). Similarly in the case of High Court Division,
seniority principles were violated on 20 February 2001, for instance, three judges were
appointed to the High Court Division by superseding senior district judges. In order of
seniority the first four judicial officers in the rank of district judges were:
(1) Mr M. Abdul Hye.
(2) Mr Afzal Hossain Ahmed.
(3) Mr M. Abdur Razzak.
(4) Mr M. Marzi-Ul-Haque[9].

In addition, Chief Justice shall be appointed by the President and the other judges shall
be appointed by the President after consultation with the Chief Justice[10].
IJLMA However, under Articles 14 and 16 of the Constitution (Fourth Amendment) Act 1975,
54,1 the requirement of consultation with the Chief Justice was omitted by amending Articles
95 and 98 of the Constitution. From 1991 by the Constitutional (12th Amendment) Act
the President may appoint the Chief Justice but in appointing other judges of the
Supreme Court, he or she is bound to act on the advice of the Prime Minister and there is
no constitutional obligation to consult with the Chief Justice (Akkas, 2004, pp. 147-8). So,
66 ultimately Prime Minister as the chief executive of Bangladesh exercises the crucial
role in appointing judges of Supreme Court through his/her titular President.
Although conventionally, Chief Justice is consulted before appointing High Court
judges, such requirement is neither mandatory, nor was often effectively followed in
recent decades.
Therefore, from the above discussion it apparently seems to us that there is a
culture of supersession in appointing and promoting judges in the Supreme Court,
including the appointment of the Chief Justice of Bangladesh. The judges are appointed
and promoted by political or executive choices instead of their seniority and merit
principles in service. This endorses injustice within the judiciary and makes rooms for
further injustice to be melted out against the citizens of Bangladesh.
In the case of the appointment of judges of subordinate courts at the entry level, the
Supreme Court of Bangladesh has no role at any stage of the appointment process. Under
Article 116 of the Constitution, in making appointments by promotion in judicial
service government is under an obligation to consult the Supreme Court[11]. However,
in practice, consultation is limited to the promotion of judges and magistrate in
subordinate courts. The former Chief Justice and President of Bangladesh Shaabuddin
Ahmed said that the Supreme Court has never been consulted in the case of magistrates
(Ahmed, 1998). However, in the mean time separate JSC has been established and
appointed two batches of judicial magistrates at the entry level of subordinate judiciary.
Though the judiciary is separated from the executive since 1 November 2007 but some
judicial functions are still performing by executive magistrate for instance Mobile Court.
Thus, the executive government enjoys an exclusive privilege in appointing judges. In
appointing Supreme Court judges, the seniority principles are still violating and the
consultation practice of the provision of Constitution which is not sufficient to restrict
the exclusive executive control over appointments.

4.2 Tenure of judges

The tenure of judges is another fundamental aspect of judicial independence that is
closely connected with judicial appointment. When a person is appointed as a judicial
officer, the next essential question is whether the tenure of his/her office or job is
adequately secure or not? If the tenure of judges is not secure, they may be subject
to discipline or removal in an arbitrary manner. So, the principle of independence of
judiciary requires that the tenure of judges should be adequately secured. In order to
ensure the administration of justice neutrally, fairly and fearlessly judges should have a
guarantee that they will not be subject to discipline or removal because of their decisions
or the exercise of arbitrary discretion of the appointing authority (Akkas, 2004, p. 169). If
the tenure of judges depends upon the pleasure of the executive authority, judges do not
become free from the panic of arbitrary removal. In this circumstance, judicial power
might be exercised by judges with a view to satisfying the authority that has the power
to terminate their service (Friedland, 1995, p. 2).
 Another aspect of tenure is practiced all over the world that minimum or mandatory Judiciary in
retirement age which has adverse effect that some judges, who are elderly but competent Bangladesh
to continue in office, are bound to retire from office (Oliver, 1986, p. 814) and this
condition also abuses for ill political motive by the government. On the other hand, the
extension of judicial service based on the logic that it is useful to reduce the backlog of
cases by using experienced retired judges who are elderly, but capable of continuing if
office. However, this practice opens the door for abuse the power of extension and may 67
exercise it for their own ends, with adverse effects on judicial independence (Shetreet and
Deschenes, 1985). Beside this, a judge who sees a government, as a prospective future
employer might be tempted to give it favored treatment (Wood, 1996, p. 40). This
practice undermines the independence of the judiciary. Therefore, the practice of
extension beyond retirement or re-employment of retired judges should be avoided.
In Bangladesh the original Article 96 of the Constitution of Bangladesh provides a
guaranteed tenure of office for Supreme Court judges up to their mandatory retirement
at the age of 62 years. However, it was amended several times for instance first changed
by the Second Proclamation (Seventh Amendment) Order 1976 and retirement age for
Supreme Court judges was fixed at 65 years and 62 for High Court judges[12].
Furthermore, the Second Proclamation (Tenth Amendment) Order 1977 which
re-established the Supreme Court judges comprising the Appellate Division and
High Court Division, and fixed the retirement age at 62 years for all Supreme Court
judges[13]. As a result, some judges of Supreme Court who were to retire at the age of 65
years, for examples, Justice Debesh Chandra, Justice Ahsanuddin Chowdhudry and
Justice Mahmood Hossain were bound to retire before age of 65 years[14]. The incidences
of removal of judges of Supreme Court happened during the second Martial law in
Bangladesh from 1982 to 1986. During this period some judges of Supreme Court
(e.g. Justice K.M. Subhan, Justice Abdur Rahman Chowdhury and Justice S.M. Hossain)
were removed from office without showing any reason and only by dint of Martial
law order (Chowdhury, 1990, p. 164). Furthermore, by the Constitutional (Seventh)
Amendment Act 1986 the retirement age was again increased to 65 years for all Supreme
Court judges. Consequently, Chief Justice F.K.M.A. Munim held office for about eight
years. Similarly, the additional judges of the High Court Division do not have adequate
security of tenure (Akkas, 2004, p. 183). The incidents mentioned above clearly shows
that the tenure of Supreme Courts judges are nor secured adequately which is a
mandatory prerequisites of independent judiciary.
The tenure of the judges of subordinate courts continues till a mandatory retirement
age of 57 fixed by section 4 of Public Servants (Retirement) Act 1974[15]. However, under
Article 134 of the Constitution, the tenure of subordinate court judges depends upon the
pleasure of the President of Bangladesh. Article 134 provides, “except as otherwise
provided by this Constitution every person in the service of the Republic shall hold office
during the pleasure of the President”[16]. Since judicial service is also public service or
service of the Republic of Bangladesh and subordinate judges are initially recruited by
Public Service Commission similar to other civil services, the tenure of subordinate
judges are also dependents upon the pleasure of the President. Therefore, subordinate
judges may be forced to retire before attaining the mandatory retirement age simply
by misusing the “public interest” clause, which is not clearly defined in Public Servant
(Retirement) Act 1974.
IJLMA For example, on 30 July 2009 the Government of Bangladesh issued a notification
54,1 that President of Bangladesh forced two judges[17] into retirement who were the
President and General Secretary of the Bangladesh Judicial Service Association.
The notification revealed that in order to maintain discipline in the public service,
the government sent two judges into retirement in accordance with the section 9(2) of
the Public Servant (Retirement) Act, 1974[18].
68 However, after the Presidential order, the judicial officers declared that they would
challenge the governmental decision of forced retirement before the higher judiciary.
They expressed that the decision was illegal because the decision required consultation
with the Supreme Court under the provision of Article 116 of the Constitution of
Bangladesh and section 6 of the Judicial Service (Constitution, Recruitment, Suspension,
Dismissal and Removal) Rules, 2007. As a result, on 3 August the government, in a
separate notification, cancelled its previous decision of forced retirement of the said two
judges. The notification disclosed that there was a procedural mistake concerning the
previous decision. The factual instances clearly show that there was abuse of
government powers regarding the forcible retirement of the subordinate judges[19].
Even, though, the Judiciary of Bangladesh has been officially separated on
1 November 2007 but the executive interference is still continuing like past which
undermine the judicial independence and fair justice in Bangladesh. So, the tenure of
judges both in higher and lower judiciary in Bangladesh is not adequately secured. But
such security is very essential for judicial independence.

4.3 Discipline of judges

Judicial independence is predicated on “good faith” decision-making. It was never intended to
include “bad-faith” decision-making, where a judge knowingly and deliberately disregards the
facts and law of a case. This is properly the subject of disciplinary review, irrespective of whether it
is correctable on appeal. And egregious error is also misconduct, since its nature and/or magnitude
presuppose that a judge acted willfully, or that he is incompetent (Sassower, 2008, p. 90).
Discipline of judges is closely related to judicial accountability and there is a
relationship between judicial accountability and judicial independence. Without proper
control or accountability judiciary may be arbitrary. On the other hand in the name of
accountability or control if the assigned authority interferes or intervenes
unnecessarily it would be a threat for judicial independence. Therefore, setting up of
appropriate mechanisms for the judges is essential to ensure their accountability.
Judicial discipline is a proceeding against judges that is carried out in accordance
with the Constitution and statutory law of a country. Discipline of judges involves
performance appraisal and other actions necessary to ensure proper conduct and
performance of judges, which may include censure, reduction to a lower rank and salary,
forced transfer, compulsory retirement and removal. These disciplinary actions or
penalties have a direct impact on the conditions and tenure of judicial office, which are
closely associated with the independence of judiciary. The main aim of judicial discipline
is to wonder why discipline is necessary and how it can be ensured.
The general causes of discipline are: incapacity, misconduct, corruption and
criminal offence and the available mechanisms for discipline are: parliament, judiciary
and independent commission (Akkas, 2004).
In Bangladesh the Constitution lays down provisions for the discipline of
Supreme Court judges. Under Article 96 of the Constitution judges are subject
to removal for misconduct and incapacity (both mental and physical), however, there is Judiciary in
no Constitution provisions for corruption and criminal offence. Beside this, there is a Bangladesh
provision under Article 96(4)(a) of the Constitution that the Supreme Judicial Council is
empowered to prescribe a code of conduct to be observed by all judges of the Supreme
Court[20]. For instance in 2000 the Supreme Judicial Council prescribed a code of conduct
for Supreme Court judges, when several High Court judges were embarrassed to hear
Bangbandhu Murder Case (Akkas, 2004, p. 220). 69
As per the provisions of Bangladesh Constitution (1972) Parliament was
empowered to remove judges of Supreme Court on the ground of proved misconduct
or incapacity[21]. However, the provision of Constitution has been changed form time to
time and under the current system, the President may remove a Supreme Court judge on
the basis of a report of Supreme Judicial Council. Since the President is bound to act on
the advice of the Prime Minister in accordance with the provision of Article 48(3) of the
Constitution. Therefore, the disciplinary actions in Bangladesh is ultimately dependent
on executive branch of the government where political will of the executive may play a
crucial role while taking disciplinary action against judges. So the mechanism for
disciplining judges of Supreme Court is contradictory to the concept of independence of
judiciary. Similar to Supreme Court the discipline of subordinate courts was exclusively
vested in the Supreme Court[22].
However, the provision has changed through amendments of Constitution from
time-to-time. Under present system of government, President is the sole authority for
all disciplinary actions. However, in practice, the executive government consults with
the Supreme Court in disciplining persons employed in the judicial service but in the
case of magistrates, the executive does not consult with the Supreme Court (Akkas,
2004, p. 237). Moreover, there is no specific method or procedure for making grievances
or complaints against a contravening judge. As a result, it is almost impossible for the
general public to file a complaint against a judge for incapacity or misconduct,
particularly for corruption (Akkas, 2004, p. 241). Furthermore, an inquiry officer or a
board appointed by the Ministry of Law, Justice and Parliamentary Affairs, conducts
the investigation of a complaint against a judge that is the executive government[23].
Therefore, there is a strong possibility of interference from the political executive
through which the executive can abuse the system of discipline.

4.4 Institutional independence

Institutional independence is known as collective independence of judges. This actually
means independence of the judiciary as an institute. In the context of Bangladesh,
though there is a strong provision in Bangladesh Constitution as enumerated in
Article 22 that the state shall ensure the separation of the judiciary from the executive
organs of the state. However, until on 1 November 2007 it was not separated from the
executive. In following section attempt has been made to explore the present state of
separation of the judiciary from the executive and judicial independence in Bangladesh.

5. Separation of the judiciary from the executive in Bangladesh

The idea of independence of judiciary was first worked out by a French philosopher
Montesquieu who articulated the famous “Theory of Separation of Power” in sixteenth
century[24]. Though, Montesquieu’s theory was criticized primarily but the spirit of
this theory has been taken for granted in modern debates of the good governance
IJLMA and accepted in many Constitutions throughout the world. This spirit is also inserted
54,1 in the Constitution of Bangladesh. Separation of the judiciary from the executive refers
to a position in which the judicial branch of government can acts from out of any
interference and influence of other branches of government particularly from
the executive. Earlier part of this chapter depicted that in any aspect of judiciary, like
appointment, tenure and discipline of the judiciary is not free from interference of the
70 executive. Such interference by executive is not new in Bangladesh. Rather such
domination has evident from the ancient period. However, the demand and efforts for
separating the judiciary from the executive also were noticed since the late eighteenth
century and continues even now (Ali, 2004). In the following section, an attempt has
been made to analyze the major initiatives and impacts of those initiatives regarding
separation of judiciary from British period.

5.1 British period

During the reign of British ruler, there was a demand for separation of judiciary from
the executive (Eric, 1987; Ali, 1993). However, the British administration did not take
any concrete steps until 1919 to separate the judiciary from the executive. In 1919,
the issue of separation of judiciary was raised in the House of Commons but it was not
discussed on the contention that it was a matter within the jurisdiction of provincial
government[25].
Furthermore, in 1921, a resolution was passed in the Bengal Legislative Assembly
regarding separation of judiciary, which was followed by formation of a committee[26].
The committee inaugurated its sitting in the beginning of November 1921, completed
and submitted its report in January of the following year (Ali, 1993, p. 99). Though, the
committee reported that there was no practical problem in separation of judiciary from
the executive[27]. However, nothing more was done during the British period. Thus, the
judiciary remained dependent on executive branch of government. Therefore, it can be
assumed that this dependency of judiciary made the judiciary fragile to ensure legal
accountability of government officials. Eventually, this situation encouraged the
government officials to be corrupt and corruption ruined the socio-economic and human
development.

5.2 Pakistan period

Though in 1947 Pakistan and India emerged, as independent states however,
unfortunately Bangladesh was remained just like as a province of Pakistan. The first
Constitution of independent Pakistan that was adopted in 1956 provided for separating
the judiciary from the executive[28]. It has been made mandatory for the President to
make appointments of judges of the Supreme Court in consultation with the Chief
Justice[29]. However, the Constitution of Pakistan like the Government of India Act
1935 (Sections 253, 254, 255 and 256) and the Constitution of India (Articles 233-237)
did not include any provision regarding “subordinate courts” or “magistracy” and
these were regulated by the Code of Civil Procedure and the Code of Criminal
Procedure[30]. As a result the judiciary remained under substantial executive control.
However, in 1957, the East Pakistan Provincial Assembly passed the Code of
Criminal Procedure with a view to separating the judicial and executive functions of the
magistrates[31]. Furthermore, in 1958 the Pakistan Law Commission recommended
to bring the judicial magistrates under the control of the High court. Consecutively,
in 1967 the Law Commission again recommended to give effect to the Cr.P.C Amendment Judiciary in
Act 1957[32]. However, it was never given effect during the whole of Pakistan period Bangladesh
and the judiciary was remained the abdomen of executive. And the situation of legal
accountability of government officials remained like their ancestor.

5.3 Bangladesh period

As a sovereign state Bangladesh adopted it’s Constitution on 16 December 1972 and the 71
spirit of separation of judiciary from the executive was inserted in Article 22. Article 22
enumerates that, “the State shall ensure the separation of the Judiciary from the
executive organs of the State”[33]. Article 95(1) addressed the method of appointment for
the Supreme Court: the President shall appoint the Chief Justice and other judges. In
addition Article 116 A provides for independence in the subordinate judiciary while
Article 94(4) demands independence of the Supreme Court judges[34]. Article 116 A,
enumerates that the judicial officers including the magistrates have been declared
to be independent in the exercise of their judicial functions. Beside this, under the
Articles 115 and 116 of the Bangladesh Constitution, the President makes the
appointment and control of judges in the judicial service or as magistrates exercising
judicial duties[35].
During Bangladesh period, following initiatives were taken for separating judiciary
from the executive.
The first attempt was taken in 1976 under a Law Committee headed by Justice
Kemaluddin Hossain recommended that subordinate judiciary on the criminal side
should be separated from the executive in three stages, which are as follows[36]:
(1) The government may by notification appoint some particular magistrates at
each station exclusively for judicial work so that the same person is not
exercising judicial and executive function at the same time. This can be given
effect forthwith without any additional expenses or administrative
difficulties[37].
(2) There should be separation of judicial functions from executive as envisaged
in the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957
(Act No. 36)[38].
(3) The final stage was about to complete separation of judiciary from executive and an
integrated judicial service under the control of the High Court Division[39]. Though,
the recommendations were very crucial and appreciable for an independent
judiciary but no initiative was taken to implement these recommendations by the
then government. In 1987, second initiative was taken to separate the magistracy
by a Bill for amending Code of Criminal Procedure, 1898[40]. However, for unknown
reason the Bill could not place before the Parliament.

In 1990, the issue of separation of judiciary was put into the manifesto of the
Three-Party Alliance movement against the regime of that time[41]. However, the next
two governments of 1991 and 1996 did nothing in this regard except spoiling its tenure.
After 1990s, all major political parties had showed their commitment in their manifesto
to separate judiciary from the executive but did not do anything for separating
judiciary from the executive. For instance (third initiative), in 1991, a private member’s
Bill namely the Constitution (14th Amendment) Bill was introduced for further
amendment the Articles 95, 98, 115 and 116 of the Constitution, for ensuring separation
IJLMA of the subordinate judiciary from the executive branch[42]. The Bill was sent
54,1 to a select committee, which had carried out about 13 meetings to consider the proposal.
However, no further steps were taken to pass the Bill[43].
Fourth attempt was taken regarding separation of judiciary from the executive in
1995. Masder Hossain along with 441 judicial officers who were judges in different civil
courts filed a Writ Petition No. 2424[44]. The petitioners alleged inter alia that:
72 .
Inclusion of judicial service in the name of BCS ( judicial) under the Bangladesh
Civil Services (re-organization) Order 1980 is ultra vires the Constitution.
.
Subordinate judiciary forms chapter II of the part VI (the judiciary) of Constitution
and thereby the subordinate judiciary has already been separated by the
Constitution. Only the rules under Article 115 of the Constitution and/or
enactments, if necessary, are required to be made for giving full effect to this
separation of judiciary.
.
Judges of the subordinate judiciary being the presiding judges of the courts
cannot be subordinate to any tribunal and as such the judicial officers are not
subject to the jurisdiction of the Administrative Tribunal.
The case came up for hearing on 13 June 1996. However, the then government prayed
for time and ultimately hearing was held on 1 April 1997. After a long hearing with
valuable comments and citations by Dr Kamal Hossain, Syed Istiaq Ahmed and
Mr Amir-Ul Islam, the court delivered its historic judgment on 7 May 1997[45]. Then
the government favored an appeal to the Appellate Division but the Appellate Division
partly reversed the decision of the High Court Division and gave its landmark decision
with 12 points directives on 2 December 1999[46]. The Appellate Division directed the
Government to implement these 12 points directives including formation of separate
JSC and Judicial Service Pay Commission to separate the judiciary from the control of
the executive[47]. However, the successive governments have taken time again and
again to delay the process. It is important to note that the caretaker government (2001)
expressed their desire to separate judiciary from the executive but did not do
separation after the request of two major political parties (Hadley, 2004).

6. How did the judiciary separate finally?

Since the Appellate Division pronounced the judgment in 1999, the successive
governments took 23 adjournments to implement the judgment on various pleas up to
February 2006. During these seven years time, the government took very slow steps
towards the way of separation of judiciary[48].
Then the interim caretaker government (2006-2008) headed by Mr Fakruddin Ahmed
from the very beginning of his office adopted a positive and firm outlook with a
determination to separate the judiciary from the executive. In fact the government took
initiatives based on the constitutional principles and 12 point directives of Appellate
Division of Masdar Hossain’s case[49]. As a result four service rules namely:
(1) Bangladesh Judicial Service Commission Rules, 2007;
(2) Bangladesh Judicial Service (Pay Commission) Rules, 2007;
(3) Bangladesh Judicial Service Commission (Construction of Service,
Appointments in the Service and Suspension, Removal and Dismissal from
the Service) Rules, 2007; and
 (4) Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Judiciary in
Discipline and other Condition of Service) Rules, 2007 were enacted and changes Bangladesh
were brought in the existing Code of Criminal Procedure 1898 through
Ordinance Nos II and IV of 2007[50].

Finally the historic journey of the judiciary separated from the executive started
functioning from 1 November 2007[51]. The initiative of Mr Fakruddin Ahmed should be 73
considered as a milestone in the history of judiciary for dispensation of criminal justice
at the level of magistracy by the judicial officers and thereby removing all impediments
in the separation of judiciary from the executive control. Though, it was considered that
separation of judiciary from the executive is a vital factor for complete judicial
independence however in principles the judicial system has not been able to function
without interference from executive. For instance, on 30 July 2009 the Government of
Bangladesh issued a notification, which discloses the fact that President of Bangladesh
forced two judges into retirement. However, on 3 August 2009 the government, in a
separate notification, cancelled its previous decision of forced retirement of the said two
judges. The notification disclosed that there was a procedural mistake concerning the
previous decision[52].
Therefore, it is very clear to us that despite separation of judiciary, until and unless
the government has adequate respect and willingness to implement the verdict of
judiciary and all the rules and regulations related to the separation of judiciary,
complete independence of judiciary is not possible. Beside this, the provision of
Constitution should be amended especially in case of appointment, tenure and
discipline or the provisions (original Articles 115, 116) of consultation with Supreme
Court should be re-established. On the other hand, it can be conducted by JSC and
Supreme Judicial Council in place of by President.

7. Conclusion
The forgoing discussion reveals an evaluation of the present state of independence of
judiciary in Bangladesh. The concept of independence of judiciary includes numerous
aspects like – appointment, posting, promotion, tenure, discipline and other forms of
informal scrutiny of judges, however; attempts were made in appointment, tenure and
discipline of judicial independence in Bangladesh. In this study, it has been found that
several constitutional provisions are very crucial and favorable for independence of
judiciary in Bangladesh. However, there are some provisions, which contradict to the
concept of judicial independence. It has also been found that from British period the
judiciary was not separated and independent from the interference of executive as a result
the judiciary was not strong enough to control and hold government officials accountable
to the legal system of Bangladesh. One of the important findings of this chapter is that
despite separation of judiciary still the interferences of executive are continuing.

Notes
1. International Bar Association Code of Minimum Standards of Judicial Independence 1982,
cl1 (b).
2. Montreal Declaration, 1983, Article 2(3).
3. Article 95(2)(b) of the Bangladesh Constitution.
IJLMA 4. Code of Criminal Procedure 1898.
54,1 5. In ancient period advocate was known as vakil and now as ukil in Bengali term.
6. Article 95(2)(a) of the Constitution.
7. Source: www.voanews.com/bangla/archive/2004-01/a-2004-01-26-3-Appointment.cfm?
moddate¼2004-01-26 (accessed 20 September 2009).
74 8. Source: www.ahrchk.net/statements/mainfile.php/2008statements/1556/ (accessed
25 September 2009).
9. Ministry of Law, Justice and Parliamentary Affairs, Gradation list of Subordinate Judges
(2001).
10. Article 95(1) of the Bangladesh Constitution.
11. Article 116 of the Constitution of Bangladesh.
12. Please see the Second Proclamation (Seventh Amendment) Order 1976.
13. Please see the Second Proclamation (Tenth Amendment) Order 1977.
14. The Dainik Manavzmin, Dhaka, 25 November 2000 (cited in Akkas, 2004, p. 179).
15. Section 4 of Public Servants (Retirement) Act 1974.
16. Article 134 of the Constitution.
17. Those two judges were, Mr Abdul Gafur, the district and session judge of Dhaka district and
Mr Shahjahan Saju, judge of the women and children repression prevention tribunal of
Gazipur district.
18. Statement by the Asian Human Rights Commission, available at: www.humanrightstoday.
info/?p ¼ 911 (accessed 15 June 2010).
19. Statement by the Asian Human Rights Commission, available at: www.humanrightstoday.
info/?p ¼ 911 (accessed 15 June 2010).
20. Article 96(4)(a) of the Constitution.
21. In accordance with original Article 96 of the Bangladesh Constitution.
22. In accordance with the original Article 116 of the Constitution.
23. Government Servants (Discipline and Appeal) Rules 1985, rr 6(1)(b), 7(2-3), 10(9).
24. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
25. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
26. Government of Bengal Resolution No. 6287 A, 19 August 1921, Calcutta.
27. “Separation of the judiciary from the executive: a brief history”, avilable at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
28. Article 175(3) of the Constitution of Pakistan. Please also see the gazette of Pakistan,
Extraordinary, 2 March 1956.
29. Article 177 of the Constitution of Pakistan.
30. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
31. East Pakistan Amendment Act 1957 (Act No. 36).
32. “Separation of the judiciary from the executive: a brief history”, available at: www. Judiciary in
supremecourt.gov.bd/history.php (accessed 15 April 2010).
Bangladesh
33. Constitution of Bangladesh, Article 22.
34. Constitution of Bangladesh, Articles 22, 116(A) and 94(4).
35. Constitution of Bangladesh, Articles 22, 115 and 116.
36. “Separation of the judiciary from the executive: a brief history”, available at: www. 75
supremecourt.gov.bd/history.php (accessed 15 April 2010).
37. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
38. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
39. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
40. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
41. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
42. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
43. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
44. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010). And for details Writ Petition
No. 2424 in 1995.
45. 18 BLD 558.
46. 52 DLR 82.
47. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
48. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
49. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
50. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
51. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).
52. “Separation of the judiciary from the executive: a brief history”, available at: www.
supremecourt.gov.bd/history.php (accessed 15 April 2010).

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Corresponding author
Md Awal Hossain Mollah can be contacted at: awal.h2007@gmail.com

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