Judiciary

The third organ of the state is the judiciary.

Administration of justice is the task of the judiciary.

The welfare of the people greatly depends on the speedy and impartial delivery of justice.

James Bryce, observes that “There is no better test of the excellence of a government than the efficiency
of its judicial system”.

The judiciary is the guardian of the rights of citizens and it protects these rights from all possibilities of
individual and public encroachments.

The feeling that average citizens can rely on certain and prompt administration of justice maximizes his
liberty.

In ancient polity, the executive and judicial functions were combined. The early monarch was the
fountain of justice. But afterwards, it came to be realized that justice could not be secured if the judicial
and executive functions were combined in one person. Historically, the concentration of power to
interpret and administer in the same hands has always been associated with tyranny.

Every citizen needs the amplest protection against the danger of a capricious interpretation of law. The
modern state is therefore inconceivable without a separate judicial organ functioning independently and
impartially.

Principles of modern justice

The first principle is that there is in every state one judicial system and one law, both are the creation of
the state, and administered by judges and other officials appointed for that purpose.

Every member of the community is subject to that law, and is entitled to its protection. It means that
the law must apply to all men and equal protection of life for everyone under the law and equal
penalties for everyone violating that law.

Justice must, therefore, be administered strictly according to law and no one may be punished for any
offence, which the law does not consider an offence.

Punishment must only be what the law prescribes for a particular offence, and it must always remain
the same for the same kind of offence.
The object of punishment is not vengeance, but the protection of society from the criminal and those
who may imitate them.

Independence of the judiciary is practically a universally acceptable principle of modern justice. It is a

crime for the judges to receive a bribe or for anybody to offer them one, or to threaten them, or to bring
any kind of pressure to bear on them. It is also wrong for the government to interfere, by trying to
secure condemnation or acquittals. Verdicts must be given in accordance with the facts and the law
governing the case, and not to suit the desires of politicians or other influential persons.

Laski expresses that, ‘when we know how a nation-state dispenses justice, we know with some
exactness the moral character to which it can pretend’.

Sidgwick observes, that “in determining a nations rank in political civilization, no test is more decisive
than the degree in which justice, as defined by law, is actually realized in its judicial administrations both
as between one private citizens and another, as between private citizens and members of the
government”.

Functions of the Judiciary

Administration of justice is the chief function of the judiciary.

The courts investigate and determine the facts according to the procedures. The parties involved in the
case produce evidence. Evidence consists of oral or written statements of witness. With the facts
determined, the next step is to apply the existing law to such facts and render decisions. The h=judge
applies the law. A judge is therefore an interpreter of law.

Another function performed by the courts is that of preventing infractions of law and the violation of
rights. For example, if a person had sufficient reasons to believe that attempts would be made to violate
their rights, they could appeal to the courts, and the courts would issue order prohibiting such attempts
or at least retraining until the rights of the parties were determined. The orders so issued are known as
“injunctions”.

Judicial review is another function which is the power of the court to declare acts of legislature or
executive of no effect and consequently invalid if they are found in conflict with the constitution.

Independence of the Judiciary

Bacon had observed that there was no worse torture than the torture of laws. The torture of law can
only be removed or mitigated when judges who apply and interpret the law are independent and
impartial.

Impartiality and independence go together. By independence of the judiciary it is meant that the judges
should exercise unfettered discretion in the interpretation of laws and administration of justice, and the
they should remain uninfluenced in the discharge of their duties.
The maintenance of the independence and impartiality of the judiciary both in letter and spirit is the
basic condition of Rule of Law.

An independent judiciary is as much the need of a popular government as it is that of a government of

an autocratic character. In the latter, it is essential to protect the people against the arbitrary
interference and oppression of one single person, and in the former it is essential to protect the
minorities against the tyranny of the majority and uphold the rights of the people.

Constitutional provision

Article 94(1) of the constitution of Bangladesh says that there shall be a Supreme Court for Bangladesh
comprising the Appellate and High Court division. The Supreme court shall consists of the Chief Justice
to be known as the Chief justice of Bangladesh, and such other judges as the President may deem it
necessary to appoint to each division.

Subject to the provision of the Constitution the Chief Justice and the other Judges shall be independent
in the exercise of their judicial functions.

The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the
President after consultation with the Chief Justice.

A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and

a. has, for not less than ten years, been an advocate of the Supreme Court, or

b. has, for not less than ten years, held judicial office in the territory of Bangladesh, or

c. has such qualifications as may be prescribed by law for appointment as a judge of the Supreme Court

Article 96(1) subject to the other provisions of this article, a Judge shall hold office until he attains the
age f sixty seven years.

96(2) A judge shall not be removed from his office except by order of the President passed pursuant to a
resolution of Parliament supported by a majority of not less than two - thirds of the total number of
members of Parliament, on the ground of proved misbehavior or incapacity. Parliament by law regulates
the procedure in relation to a resolution under clause 2 and for investigation and proof of the
misbehavior or incapacity of a judge.

Subordinate Courts
Article 114 states that there shall be in addition to the Supreme Court such courts subordinate thereto
as may be established by law. The control(including posting, promotion and grant of leave) and
discipline of persons employed in the judicial service and magistrates exercising judicial functions shall
vest in the President and shall be exercised by him in consultation with the Supreme Court.

Article 117(1) provides establishment of Administrative Tribunals.