Q.

“THE HIGHER JUDICIARY IS EXPECTED UNDER THE CONSTITUTION TO

SUPERVICE THE ADMINSTRATION OF THE LOWER JUDITIARY” – DISCUSS WITH THE
RECENT DEVOLOPMENT OF THE JUDICIARY.

Introduction

The recent development of the judiciary is the independent of judiciary. In a democratic state, the power
rests on three separate organs, namely the executive, the legislature and the judiciary. The constitution of
Bangladesh vests the executive power in the executive and the legislative power in parliament. Though
there is no specific vesting of judicial power, it is vested in the judiciary, the judiciary comprises all
courts and tribunals, which performs the delicate task of ensuring rule of law in the society. A social
structure remains coherent and cohesive with the aid of a sound judicial system. Judiciary redresses the
grievances of the people and resolves disputes. The dysfunction of judiciary impacts more severely than
that of any other institution as it removes from the mind of people the sense of attachment with the
society. In Bangladesh the Judicial norms and practice have been derogating for years. Recently a number
of allegations have mounted surrounding judiciary. The first thing which must come into consideration of
the administration of justice in a society is the independent of judiciary. In real it is inconsiderable a
society without crime and dispute. Society laden with the influx of crimes and dispute. To live in the
society it must be to maintain and balanced. A sound and independent judiciary is the prerequisite of a
healthy society. And the balance is maintained by the judiciary administering justice in the society. But if
without an independent of judiciary, it is hardly be expected to render impartial justice.
3

3
Halim,Md.Abdul,Constitution, Constitutional Law and Politics: Bangladesh perspective (2003), P-328

1
This essay will discuss on the supervisory of lower court under the constitution by the higher court, -
before and after the separation of judiciary.

Limitations of Judicial Control before Separation of Judiciary

The judicial remedies mentioned above under the ‘Rule of Law’ system Providian effective control
against official excesses or abuse of power and in protecting the liberties and rights of the citizens. But
judicial control has certain limitations. It the first place all administrative actions are not subject to
judicial control. There are many kinds of administrative actions, which cannot be reviewed by the law
courts. Then there is a tendency on the part of the legislature also to exclude by law certain administrative
acts from the jurisdiction of the judiciary. Second it can intervene only on the request of somebody who
has been affected or is likely to be affected by an official action. Human nature being what it is, legalism
is the last sphere in which it would like to enter. Third sometimes the remedies offered by the law courts
are in adequate and ineffective. In many cases, especially relating to business activities, mere
announcement of an administrative action or even a reminder concerning a proposed action may cause
an injury to the individual against whom not even a suit can be filed in the law court. Fourth the
overnment may deprive the person of the remedy granted to him by the court by changing the law or rules
thereof. Fifth judicial action is incredibly expensive and cannot therefore be taken advantage of by many
people. Filing a suit means paying the court fee, fee of the lawyer engaged and cost of producing
witnesses and undergoing all inconveniences which only those who can afford can bear. This keeps many
people away from the court who prefer to suffer. On account of heavy cost and great inconvenience the
judicial remedies are of little advantage. Last, the highly technical nature of most of the administrative
actions saps the force of judicial review. The judges are only legal experts and they may have little
knowledge of the technicalities and complexities of administrative problems. Their lelgal bent of mind
may hinder them in arriving at a right decision. They have to follow the prescribed procedures and
observe some formalities.4

4
Mollah, Md. Awal Hossain,on his analytical overview: Judicial Control over Administration and Protect the
Citizen's Rights.P-24,25
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN020064.pdf

2
Political of Superseding and The Appointment of Judge & The Chief Justice Before The
Separetion of Judiciary

The constitution provides the president that he could appoint the Chief Justice on his own; he does not
need to consult with the Prime Minister or anyone. 5 But there is a practice of custom that consultation
with the Chief Justice and politics in the appointment of judges. It is not mandatory, that mentioned in the
constitution. The time-honoured practice has been to appoint the senior most judge in the Appellate
Division as a Chief Justice though in recent history of the Higher Judiciary that practice has been
violated. On 23rd June 2003 Justice K.M Hasan was given the appointment as the Chief Justice on
retirement of Chief Justice Mainur Rahman Choudhury. However, Mr. Hasan was given the appointment
superseding two other senior judges in the Appellate Division. This was unprecedented that the president
puts a judge ahead of two of his superior in the chain of Chief Justice. 6

Control of subordinate judiciary:7

Control of subordinate judiciary by the Supreme Court in the folling 3 means

1. Supervisory Power of the HCD: The supervisory power of the HCD as conferred by Article 109
is a constitutional power. And this power of superintendence is in addition to the power conferred
upon the HCD under section 115 of the C.P.C. and Cr. P.C. are only statutory supervisory powers
whereas power under article 109 of the constitution is a constitutional supervisory power.
5
Article: 95,The constitution of the republic of Bangladesh.

Halim,Md.Abdul,Constitution, Constitutional Law and Politics: Bangladesh perspective (2003), P-342

6
The Daily-Star,24 june (2003), p-1.

http://www.thedailystar.net/story.php

7
Halim,Md.Abdul,Constitution, Constitutional Law and Politics: Bangladesh perspective (2003), P-365, 367

3
 Statutory supervisory power extends to judicial but not to administrative matters, while the
constitutional supervisory power extends to both judicial and administrative matters. The
statutory supervisory power covers only courts but article 109 covers court as well as tribunals
subordinate to the HCD. The statutory power under article 109 cannot be curtailed except by an
amendment to the constitution.

2. Revisional power: Revisional jurisdiction of the High Court Division (HCD) means that the
power where by it examines the decisions of its subordinate courts. For example, section 115 of
the C.P.C. has conferred on the HCD the revisional power.

3. Jurisdiction as to Transfer of Cases: Under article 110 of the constitution the HCD may
transfer a case form subordinate court to itself. But condition is that the HCD is to be satisfied
that
i) a substantial question of law as to interpretation of the constitution is involved in the case; or

ii) a point of general public importance is involved in the case.

But the power under Article109 is a general power and includes the power to control all
subordinate courts administratively and judicially. This jurisdiction given under Article 109 has
not been effectively implied by the High Court Division. Sometimes, it’s judges are sent to
inspection but the report of the inspection are not strictly followed. 8

What are the problems created by the administration?

There are many ways in which administration can interfere with the liberty of people. Friedman cites
three typical examples (Obaidullah, 1999). In the first place, the state interferes with the free and
untrammelled conduct of individuals through a multitude of restrictive instruments. Second types of

8
C.J. Latifur Rahman, Judicial Independent and Accountability of Judges and the Constitution of Banglsdesh, 20 BLD
(2000), journal 85.

4
interference consist of orders for the compulsory acquisition of land. A third type of administrative
interference is the fixing of minimum standards and inspections. 9

The problem of administrative discretion is complex. It is true that in any intensive form of government,
the government cannot function without the exercise of some discretion by the officials. It is necessary
not only for the individualization of the administrative power but also because it is humanly impossible to
lay down a rule for every conceivable eventually in the complex art of modern government. But it is
equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of
man's other inventions.1 Therefore, there has been a constant conflict between the claims of the
administration to an absolute discretion and the claims of subjects to a reasonable exercise of it.
Discretionary power by itself is not pure evil but gives much room for misuse (Massey, 2001). There fore,
remedy lies in tightening the procedure and not in abolishing the power itself. 10

Article 22: The State shall ensure the separation of the judiciary from the executive organs of the State.
Separation of Judiciary from the executive.

Masder Hossain Case 199911

Judge Masder Hossain expressed satisfaction that the constitutional provision for separation of
the judiciary is being implemented.
9
Halim,Md.Abdul,Constitution, Constitutional Law and Politics: Bangladesh perspective (2003), P-367

10
Mollah, Md. Awal Hossain,on his analytical overview: Judicial Control over Administration and Protect the
Citizen's Rights.P-06
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN020064.pdf

11
Secretary, Ministry of Finance V. Md. Masder Hossain and Others 52 DLR (AD) 82.

5
In 1995, Masder Hossain along with 339 other members of the judiciary filed a case with the
High Court (HC) regarding judiciary separation. The HC delivered its judgment on May 7, 1997,
and the Supreme Court (SC) on December 2, 1999, delivered a 12-point-directive for separating
the judiciary from the executive. The 12 points directives for separation of judiciary from
executives are follows:

1. Judicial service is a service of the republic within the meaning of article 152(1)

Of the Constitution, but it is functionally and structurally distinct and separate service from the civil,
executive and administrative service of the republic.

2. The word appointment in article 115 means that it is the president who under article 115 can
create and establish a judicial service and a magistracy exercising judicial functions, make rules
etc; article 115 does nit contain any rule making authority with regard to other terms and
condition of service; article 133, 136 of the constitution and services (Reorganization and
Conditions) Act 1975 have no application in respect of the judicial functions.
3. Creation of BCS (Judicial) cadre alone with other BCS executive and administrative cadres by
Bangladesh civil Service (Reorganization) Order 1980 with amendment of 1986 is ultra vires the
Constitution, Bangladesh Civil Service Recruitment Rules 1981 are inapplicable to the judicial
service.
4. (i) Government is directed to take necessary steps forthwith for the president to make rules under
Article 115 ti implements its provisions. (ii) Nomenclature of the judicial service shall be
designated as the judicial service of Bangladesh. (iii) either by legislation or rule or order a
Judicial Service Commission is to be established forthwith with the majority of member from the
Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial
service.
5. Under Article 133 law and rule relating to posting, promoting, grant of leave, discipline, pay,
allowance and other terms and condition of service consistent with Article 116 and 116A shall be
enacted separately for the judicial service.
6. Government is directed to establish a separate Judicial Pay Commission forthwith as part of the
Rules to be framed under article115.

6
7. In increasing control and discipline of person employed in the judicial service and magistrates
exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall
have primacy over those of the Executives.
8. The conditions of judicial independence in Article116A namely (i) security of tenure (ii) security
of salary and other benefits and pension and (iii) Constitutional independence from the parliament
and the executive shall be secured in the law or Rules made under article 113 or in the executive
orders having the force of Rules.

9. The executive shall not require the Supreme Court of Bangladesh to seek their approval to incur
any expenditure on any items from the funds, allocated to the Supreme Court.

10. The members of the judicial service are within the jurisdiction of the administrative tribunal.
11. Amendment of the Constitution for the separation of judiciary from the executive may be made
by the parliament.
12. Until the Judicial Pay Commission gives its first recommendation the salary of judges in the
judicial service will continue to be govern by status quo ante.

Under this 12 point the judiciary is been separated from the executive.it has been typical to report
that is Mr. Masder Hossain case the Supreme Court gave 12 directions. In fact these 12 points in

7
 the operative part of the judgement are not all directions in true sence of the term. Of these 12
pints 5 are in the nature of directions and 7 are in the nature of declarations. Points 4, 5, 6, 8 and 9
are in the nature of directions.

Under the Constitution supervisory of higher judiciary to the lower judiciary and the recent
Development

Bangladesh's government gave up its executive control over the judiciary, ending a
practice that dates back to British rule over the Indian subcontinent.

The move to free up the courts from politics is a key element of sweeping reforms being put in
place by the country's emergency government, which has pledged to root out corruption once and
for all before new elections next year.

The separation based on the 12-point-directive of Maasder Hossain.

The appointment if judges: After separation

In before we knew that the appointment of the judges (Lower court such as 1 st 2nd or 3rd class m-
agistrate court) was by the BCS which was under direct control of supervision of executive, i.e.
Government. Previously there was no such commission like Bangladesh Judicial service
commission (BJSC). After the separation of judiciary from executive, BJSC formed. It recruit
magistrate for the lower level courts such as 1 st, 2nd or 3rd class judicial magistrate court. After the
separation of judiciary, BJSC recruit Judicial magistrate and executive recruit executive
magistrate.12

12

8
 Article 109: Superintendence and control over courts.- The High Court Division shall have
superintendence and control over all courts and tribunal subordinate to it.
Under the Article 109 higher court could now directly supervise the lower judiciary. 13

Separate and independent Pay commission is one of the point of Masder Hossain’s directive of
separation if made early then there will be more involvement of higher judiciary and lower
judiciary. And there would be more directive method given by the higher judiciary.

Justice Golam Rabbani , a retired judge said that although there has been a formal
separation of the judiciary from the executive the appointment of the judges of the
Supreme Court still remain in the hands of the executive.

13
Siddique, A K. M. The Constitution of the People’s Republic of Bangladesh.(2008), p- 73.

9
 He, therefore, says that the judiciary is not fully independent yet. He does not feel that
this introduction will take Bangladesh quite far because for the proper implementation,
the elected government has to invoke the basic spirit of the constitution which guarantees
the independence of Judiciary.

Conclusion

The most elaborate system of rights, remedies and procedures would be of little use when
there is no independent, impartial and competent judiciary. The independence of the
judiciary has been ensured by the judges' security of tenure as well as the judiciary's own
distinguished traditions of learning, integrity and technique and the law of contempt.
Independence of the judiciary was inextricably linked to the system of formal courts.

The most elaborate system of substantive, procedural and remedial provisions is

meaningless without an independent, impartial and competent judiciary for one reason:
administration. Without jurisdiction to administer, the law is purely academic and
without a proper judiciary, the jurisdiction to administer is purely oppressive, as may be
seen in numerous uncivilised countries of the world.

In order to have a proper judiciary, properly exercising its jurisdiction, several things are
necessary. They fall into three broad groups: technical competence, commitment to sound
ideals and finally, institutional (and therefore, personal) independence. Naturally, these
groups overlap to a certain extent.

Although formal courts in Australia are yet largely independent, there has been a
proliferation of a vast array of tribunals which are neither independent nor competent.
These are the administrative tribunals which determine countless privileges and
deprivations which are incidents of the modern welfare state. These tribunals are
structurally prone to ideological manipulation and many of them are in fact directed by
law to make decisions based on ideologically determined criteria. These control and/or
reward systems are progressively replacing the system of independent adjudication based
on formal rights. It is time for a new Coke to wage war upon those usurpers of judicial
jurisdiction.

The ethos of the judiciary and the formal courts is being challenged by intellectual
influences, particularly by a novel ethos of a "democratic" judiciary and by suspicions
that Labor governments' policy of judicial appointment is sometimes based upon the
criteria of philosophy and party loyalty before merit and judicial excellence.

References

1. http://www.voanews.com/bangla/archive/2007-11/2007-11-01-voa3.cfm

10
 2. http://en.wikipedia.org/wiki/History_of_Bangladesh

3. Siddique, A K. M. The Constitution of the People’s Republic of Bangladesh.(2008),

4. Halim,Md.Abdul,Constitution, Constitutional Law and Politics: Bangladesh perspective (2003),

5. http://www.icclr.law.ubc.ca/Publications/Reports/An_Independant_Judiciary.pdf

6. Mollah, Md. Awal Hossain,on his analytical overview: Judicial Control over Administration and Protect
the Citizen's Rights.P-06

http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN020064.pdf

7. Secretary, Ministry of Finance V. Md. Masder Hossain and Others 52 DLR (AD) 82.

8. Mollah, Md. Awal Hossain,on his analytical overview: Judicial Control over Administration and Protect
the Citizen's Rights
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN020064.pdf

9. http://www.ourcivilisation.com/cooray/btof/chap187.htm

10. http://en.wikipedia.org/wiki/Judicial_independence

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