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The Independence of Judiciary in Bangladesh: A New Milestone and Its

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Article · July 2009

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Mohammad Shafiqul Islam Mohammad Nashir Uddin

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 The lldependence ofJudiciary in Banghdesh
A New Milestone and lts Challenges
Mohamnad ShafiqLrl lslam*
Mohanrnad Nashir Uddin**
Cbowdhury Abdullah Al-Hossicnie***

Abstro.l lndcpeh.lenljudiciuy is the lite q o olit d(nrcrutic govc ,nent

"on
Lt tnNuriry tuk of law Siace the betinriry oJ the Btitilh colninl tulc. tht
.tuLrtion of s tmtioh ofjudicia.y fon th. exe.utiw h6 b?cn o conti"uint
l.httc. Eeea alter hn ry ti, jea$ ofintupander.e. Bansla.lesh erperiancas tha
:tpo.tioh of the judicnry Inn he clecutive sinte Now be. t. 2t)07 Thit
tatcrote pb toetplore to ||hat ettent the i tiohres hdra been taken u d||hat
th. .ha dgc! aN ahea.l lo inplc ent th$e ihiti.ttire! it' thit t.gdftt. lt nllo
tliltullet brie!])t the co,ceptual issue. theoty ,lloting to l1e study and litl r
ron.lade! with sohe rcconnen.lotian! sa th.tt poln! ofseporution oJ iutlicitur
hon the era.utiec woul.l be effe.tive and helpJut lor the polic! fktklB. Th!
Nrtt i! preparcd ba\ed on sc.o"dort toutlcs ol n'Jontuion

1.0 Introductior
.ln common parlance, the gov€mmenl in a state comprises of three
main otgans: the legislature, the executive and thejudiciary exercising
power ol rule naking, rule applicalion and rule adjudication
resp€ctively. These organs of the stat€ should remain separat€ from
each other and be independent in a free democracy. The issue of an
judiciary has been discussed over lime in our country io
'ndepend€nt
cnsure good govemance in the country as well as citizens' liberry and
right. Although different polidcal panies have pledg€d from time lo
trme to give such independence of Judiciarv in therr election
mani festo, lhey could not establish in lheirregimes. This is because of
lack of political will and low political cullure in Bangladesh.
However, the Caretaker Govemmentr of 2001 had taken a step
towards_this, but tle successive political govemment has prayed fbr
' Asrs$nt Profcssor, Depr ofPublicAdminisrdrion,shahl rlUnr!.rsiryofScrcncc
& Te.h.ology, Sylhcl. E mail: sidanlN(4ylhoco in
' A$Cr.d Prof.ssr, o.F. of Public Admrn6r.ion. Snrh l al Unive6ny of S.imc.
& Tehnolo8t Sylhct
''- Rc$ar.n srud.nr, Dcpr. of Fublic admininddq, sh.n hhl Univ€Eity of scicncc &
Tahnolog, Sylhet E-mil: hNimiclfi)r{h@.conr
26 Bansltutc\h Jaurn(lDl P blit Ad ti"isltltturl
cxtension of time again and again. Conscqucndy, the concept ol an
ind€pcndent j udiciary has not seen the lighl ol inrplementation at that
pcriod. Finally, the lasl Caretaker Govemmcnt look the inilialive and
scparated rhejudiciary lrom the execurive on November l, 2007. lt is
a landmark in thc hislory of Bangladesh lo launch the joumey oi lle
independenl judiciary. Ihis study discusscs thc coDceplual issues,
rclcvanl theoies. background, consitul r l pfl)visions and present
siruation of indcpcndence of judicjary in tJangladesh as well .rs
challeng€s ahead and potential way oul.
Concept ofJudici.ry
'Ihe judiciarX besides bcing one ofthe organs ot the slale, is also the
custodian ofrhe constilulion. It is the third and a separale oryan ofu
democmtic slate which includ€s those ouicers ol govemm€nt whose
tunction is to adjudicate the existing law lo individlal cases.
"Judiciary means ih€ body ofthose public officials who iniel?rct and
enforce the law of the state"r- "The judiciary of the statc may bc
defined as that body ofofficials whose work consisls in the r€solution
of complaint, whcther berween subject and subjecr, or between state
a'rd subject"r. Judiciary is that body oflhe stale which funclions 10
establish rule oi law through €nforcing the law ofthe stat€ It is an
inevitable parl ol a state without which nrod€n civilization could
never be imagined. lt helps lo ensure good governance and rule ol law
rn the country Ir is also called thc sat-eguard ofconstilulion.
Thcory of Scprretion of Powers
Accordmg io tbe lheory ol scparation ofpowers, the threc organs of
the govemment must bc kept separate in a liee democracy. Thus lhe
legislature cannot exercise execulive orjudicial power; the executive
cannot exercis€ l€gislative orJlrdicial powcr and thejudiciary cannol
exercise executive or legislalive pow€r of the govemmenl. The
writings of Locke and Montesquieu gave lhe lheory of sepamtion of
powers a base on which Jistinction between lcgislative, executive and
judicial power is grounded. Locke distinguished between them based
on some criteria, what he called:
Ttu rnd.pcrdcncc oljudic'ary in Banlladcsh A Neq M ldsrore 27
Sltulittul hlo"t/ Nasrir LLldh/,11 thri! ie
a. Discontinuous legislarive pow€ri
b. Continuous €;ecotive pow€q
c. Fedemtive power
He included within'discontinuous legislatjve power' the general rule-
nraking power called into action ftom time to rime and continuously.
'Continuous executive power' included all tlose power whicb we now
call executive and judicial. By 'federative powel he meant the power
olconducting foreign aft:lils. Her€ indicat€s separation olpowers of
govemm€nt and these issues ar€ highly relevant lo our study. Because
independence of judiciary means that any organs of govemm€nt
cannot influence over the judiciary. Judiciary bnnch is supposed to
work according to their own rules and regulation.
I-ocke pleads for, but do€s not fully develop, the doctrine ofseparation
ofpowers. He suggests the principle of separation. 'fhe legislatur€ and
the executive must be separat€d in functions, powers and personnel,
for otherwise the legislators "may ex€mpt themselves liom obedience
lo lhe laws they rnake, and suil the lt]*, both in its nuking and its
execution, to thcir own private wish, and th€reby come to have a
distincl interest from rest ofthe community, contrary to end ofsociety
Writing in 1748, Montesquieu said:
"Wlrcn the legislutiye and ctedtiye N'9ers arc united in
the san'e person, or in the saDrc bo<ly oJ nagistrute\.
cre un be no liberty, hecduse apprchensioss tt6y
arise. lett the sane nonurch ot senute lhould enact
tyrunnical lews, to oiecute thetn tu ,run ical nanrc.
Again, therc is no libe y iJ the j di.ial pt)wcr be rot
sepatuledto the legslutive and the eteutive. tvherc it
joincd with the iegislatire, the life and libe y of the
subject wuld be eryosed to afiitrury conbol: Ior the
julge would thea the legblatot. Where it joine.l with the
executive ponet, lk judge might behave with violence
Mi\eruble indee.l \'ouhl hc case. were the sa e nun or
28 Btnsl4dexh Ja mtt o1 Puhltu Ad iiki\n1tit,t 'lhe lndepcndcDcc ofJudiciary rc Banglldesh A Nc$ M lc$onc 29
sh(fu:,] ktur/ N trt Lit.l tiAI H.:jn\h,

the ylnc ba.tf. \|hether oJ the roblet o, ol l'. pa,?l;. h'
cxercise tto.te thrce ltovels. Ihat ol endchg lar,!. thdt ol
erccuting the publk: rclolutioa an.l hd .l iudgikg the
c itle! or tt{leren.es oJ indiw.tuats" '.
This concept is highly related to the study of independence
judiciary olBansladesh.
In fact, the aim of the doctrine is to gurrd against tyrannical and
aditrary powers oi the slate. The mtionale nderlying the docirine has
been that ifall power is concentrated in one and the same organ. tbere
would arise danger that it nmy enacl tyrannical laws, execute lhem in
a despotic nranner, and inlerprcl lhem iD an arbitrary fasbion withoul
any external control.
Tbc capabilily ol'judicial system to deliver justice depends on to a
great extenr oo how far it is independent and liee liom influence of
executive branch of the govemment. The Dolion of separate aDd
rndependent judiciary is one of the cornerstones of our constitution.
Adicle 22 of thc Constitution of People's Republic of Bangladesh
emphasizes on the independent judiciary by way of separating tbe
same from the executive organ ofthe slate. The ariicle provides lhat
the state shall cnsure the separation of the judiciary tiom executive
The separation of judiciary from the executive became finally
etTective liom November l, 2007 after the caretaker government had
formulated relevanl rules and nade amendment to the Code of
Crininal Proced re (Arnendrnent) Ordinance, 2007 as a response to
the apex court's twelve poinl directivcs in th€ hisloric Masdar Hossair
fronl the cunnrlated views of thirty-two Asran and Pacific Chief
iustices) Judicial independence is defined, in this report as a Judiciary
uninhibited by outside in uences which mayjeopardize the Deutraliiy
ofju sdiciion. which nmy include, but is nor limrted ro, jnfluenc€
ol fioDr another orsan of tbe govemmeDl (functional and collectjve
independeDce), from the media (persoDal Ndependence). or liom the
Juo<nor ollr.(rs r rrrcnrl I dependence,
Indcpend€nce ofjudiciary truly neans rat the judges are in a position
r^ r.rdci ju.ri.e rn dccorddnce $!rl rh,-r oarh ot ofir.e and onl) rn
accodance with their own sense ofjuslicc without submitting 1() any
knd of pressure or influence be rt fionl executive or legislative or
trom the parties themselves or iionr thc supcriors and colleagucs '
-lhe
concept ofjudicial independence as rccen1 intemational €fforrs ro
this field suggests, comprises lbllowing four meaning of judicial
i. S bshtntive Independence al the Judsc!: It rclbrred b as
Iunctional u decisio Ltl inlepcndence meanins lhe
inde?endence ol judge! to aftiw at theit detisioh! vLithout
subnitting to a y inside ot oubide prcssure:
ii. Pe$anal independence: Thd meuns the Judges are nat
dependent on gowrnneit in anl way which might i uence
thetn in reu.hing d fudsiotts ik ?aniculat &selt;
,,, artlt, !tv, hdepnJ, n.. rhrt ncda\ tnltutiu4ttt
adnhistative and Jinantial indepenrle"ce .l the judiliary as
u\rhale yis-a-yis othet branchas olthe s,,erknent nameb, the
exetuliw an.l the legislatiye: and

lndep€ndence olJudiciary: A Conceprual lssue I tnt"'nat lnlp?ln,lcn.? lhot n" s nJ, r"alcn(. ui tddy,
lion their julicial
superiors antl colleugues. It re|bs to, in
lf the judges can act within the bounds of iaw without interf"-rence othetwords, intupendence olajudgeor u iudicial oltrLe4iom
from any quarters that constitules independence of judiciary. any knd ol oftlet, indication or pressurc lron his ju.lnial
lrdependence ofjudiciary means a fair and n€ulraljudjciai system of superiors and colleagues in deciiing c ses.
a country, which can afford to take its decisions without any
iDterf-erence of executive or legislative branch of govemment. Taking
inro consideration some ofthe recent discussions made in the Beting
Statement of lndependence of the Judiciary (a statenent resulting
30 Bangl kth Jouflnl oJ Prbh. Adt"n,ilntu)n
lndependence ofjudiciary depends on ccfain conditions like mode ol'
appoinlment of the judAes, security of their lenure in the ofiice and
adequale remuneration and privileges. Satisfacrory implemenlation of
thes€ conditions enables the judiciary 1o perlbm its due role in the
society thus inviting public confidence in it'.
The Judicial System of Banghdesh: The Constitutional Basis
At a glance, thejudiciary 01-Bangladesh consists ofthe Supreme Courl
and th€ subordinat€ courls. 'fhe highesl cour in Bangladesh, the
Suprenle Coun, is actually composed ofiwo divisaonsi the Appcllale
Division and lhc High Court Division. The f0nclrons of the two ar€
distinct, and scpaml€ appointments ofjud8es are made to each. The
ChiefJustice ol the Suprcme Court sirs in th€ Appellale Division. 'tlre
Presjdent appoinis th€ judges of the Supnme Court in consultation
with the Chief Justice. Whilc some Chief Justices in the past have
insisted on berng colrsull€d on thesc appointments, olhers were rot so
exactinS, Ieading lo "Political" appointmenls by the party in power'".
The lower judiciary in Bargladesl also consists of lwo parts: firct,
there are Dislrict couns and Sessions Courcrr, with 10-10 iudses
snting in each ofthe country's dislricts. There are also the courts ol'
Judicial Magistrales, the Judges of lhe Dislrict Coras are under the
junsdiction ol the Suprcne Court and beloDg 10 the Bangladesh
Judicialservico.
Adminrstrative tribunals exc' cise j urisdictioD in respecl olmaltcrs to,
or arising out of the republic. or ofany statutory public authority as
specified in the constilution.
tsangladesh's Constitution came into lbrce on December 16, 1972, al
lhe litsl anniversary of the country's ind€p€ndencc. It contains faidy
strict safeguards for the ind€pendence ofth€ judiciary. Part VI oflhc
conslitution deals with the judiciary. Article ? of thc constrlution
provides that all powers in the Republic shall be efibclive only under
and by auftority ofthe rjonstitution. Anicle 35(3) ofthe constitution
pmvides "Every p€Ison accused ofa criminal ofTence shall have nght
to a speedy and public trial by an independent and inrpartial court or
rr'.lndcpcndencc ol ludiciary in Banglrdcsh: A Nc* M lcsrone. 3t
tluliqtt lllu t/ Nall r lt,il i.lt thrtit ie
lribunal established by the law'. Arljcle ll6A providcs lbr
rDdcpendcnce in the subordinate judiciary while Anicle 1)4(4)
dcmands independence oftl€ Supreme Coun Judges.
ll)r Judicial independence ol all J'rdicial ollicers is unconditronal
l.cording to thc constirution ol Bangladesh. This rdeal is prolecled
primadly lhrough the concepl ofseparatiur ofthcjudiciary ii.onr thc
(nher organs of govemment. Article 22 of lhe consriturion provides
lhal tbe statc shall €nsure th€ separation of the judiciary lioln thc
urccutive organ of stare- Article 95(l) addressed the merhod of
Lrppointnrent ibr the Supreme (bun: ihs presidcnr shall appoinl rhe
( hiefJustice and other Judges. The appointmenr and con('ol ofjudgcs
rrr the subordjnalejudiciary (Judicial service) are described in Arlicles
I l5 and I l6 as appointment ofpersons to oftices in $eludicial scrvice
or as magistmtes exercisingjudacial be made by the President wilh the
rulcs madc by hin] in thal behall The conlrol (including the power of
posling, promotion and grant of leave) and discipline ol persons
cnrploycd in the Judicial s€wice and magistrzles exercising jlrdi0ral
lirnctions shall vest in the President and shall be excrcised by hinr in
.onsultalion wilh the Supreme Court. Adicle 96 providcs. "A Judgc
shall hold oflicc until he attains tbe age of sixty-sevcn years" and
Afticle 99 provides, "A p€rson who has held office as a Jud,]e
olhcruise than as an addjtional Judge shall nor, ailcr his retirenreDt or
rclnoval thcre fion\ plead or act beibre any court or authority or hold
nry olnce or pmfit in tbe sewice ol lhe Rcpublic not berDg a judicial
or quasiludicial office" allhough the lonnal sepantion of powers is
not emphatically articularcd. Ovcr lhe ycars, ils saltguards fbrjudicial
independence, ralher than being strengtheDed ar)d consolidated. have
becn diluted through a number ofconstitutional nnrendmcnts.
"lt it prutctpnll.\ thrcush th. tborc urticlct lutt th.
cte.utirc htunth hlr bte, ahla to Antlu1lr, , rul. tton
und n ulrce thc .iulitiarl i Eangh esh. crcutnrA
! a bus l,tobler!! rcqu |'8 the .yat r ol iutisdi.tit j
t,l ttv eient ol jutli&tl th.lcpcndo<1. tu.a tL.
saPutulto ol fie iudiciui)'.li'on lt ev.lhe ha\ hce,
t,guc.|4.\ 4 necesril' base.l on th( uittunltitutntu i, olnt
32 EttgLulct h Jaun tl./ Prblit Adni
pr<lcnt ofSlnizatian.nd whitu this t\tr \e4ll be t'ut. tr
appkrs to be thc conscquentiot provl lunctntul
D 0) y hc rccalled that the caretaker govemment (2001) had tak€n all
ndeper.lence aJ the juliciaa' rtt i the Jinlankjntd
rtason.fot scparalrrt ,,itl uncontt itutidx! Iit\. bln1q o lJ'4n
otyt!htent to cn!ufc ilt c4uctt a4l't t1
Separrtioo ofPowers in Bangladesh: A Bricf Hi$tory
'Ihe first anempt was taken atlcr th€ division ol the sub-continent
in
1947, Pakistdn govemment enacted East Pakisran (then Bangladesh
was under Pakistan govemmdrl) Act No. Xxlll of 1957, which
provided for separalion ofjudioiary tionl tbe €xecurive. Thc law was
still hanging for a simple gazettc notification. As regards
ind€pendcnce and separalion ofJudiciary, our coistitution of 1972 is
tbirly developed. But the framercofSupreme Law ofth€ land made an
untbnunat€ insertioo rn article Il5 and I l6 as'Magistrares exercising
judicial functions'. Article 22 in unequivocal tcml states that'rhe shte
shall cnsure the separari,)n ofthc JudiciAry iioff rhc executive organs
ofthe stale'as one ofthe tindamenral principles of state f'olicy. k is
not readilyjudicially elrforceable. Nevertheless the state cannot ignore
it for long. There was nder cuncnt ol demand of implem€ntation of
constitutional obligation fiom thc very inception of Bangladesh. B!r
the Fourth Amendment undermined the constitutionalism ilself, which
obviously destroyed the independence ofjudiciary. The subs€qLrenr
upheavals of politics rather by passed ir. In 1976 law commission
recommended rhar subordinate judiciary on the c miDal side should
be sepamted from the executive rr.
Lr the mean time, we witnessed lwo extra-constitutional processcs. ln
198?, initiatives were taken to separato the magisrmcy by amendrng
code ofCriminal Procedurc, 1898. For unknown reason the Bill could
not be placed before the Parliament. After lh€ fall ot the autocratic rule
iD 1990, expectation was high to ensur€ separation ofjudiciary. But
lhe next two elected govemn€nts of l99l & 1996 did norhing in this
regard except spoiling its tenure. In 1999, the Supreme Court issued
l2-point dircctives in famous Mazdar Hossainl case to cnsure
scparation of judiciary from rhe executive. Ihe successive
ni! ttu tu,t lLr l ,N {nlon.r ollud'ciary rn B!neludesh : A Ncw Milesone.. t3
Italiqtl Islur/ tinrhn l dnt/Al H.Na n,
{olurrDrcnts have laken lime again and again to delay rhe process. l(
rnc sur'os to cnsure separation but iniliative was srop at the request ol'
n tor p:rrtics of the country In 2001 BNP ibmed a coalirion't
*d!errmenr with Jamar-e-tslami Bangladesh. The BNP led coalition
[('\( nrcnt was working very slowly towards separalion ofjudiciary.
lh! \lcma'rd of separation of the judiciary from rhe executive is
LlllrvcNNl to cnsure tht independence ofjudiciary and safeguard the
rrthls ol lhc people. lt is quite untbnunal€ lhal the Gov€mnrent is
lli,\'ing towards al snail's paceri.
Illlli) unatcly. rhe Covemment has not been able ro give life ro these
Ir,!isions even decadcs ater the fnming ol'the Constitution. 'l'hus,
rllt Supreme Courl Appellate Division gave sp€cific direciions for its
rnlplcmcntation wben ilhad the occasion to interpret the constitLrtional
pr',vrsi('ns in Secretary ofFinance v. Masdar l-Iossain (20BLD [2000]
lAl)l I4l) ("Hossain") L'. In the form of l2 point directions, the
Snprcme Court provided a road map to implemenl the s€panlion of
prl{,"cls from executive to judiciary ]r.
'l'lro Masdar Directions
L Judicial Service is difTerent from Civil Service:
2 Only President has authodly to create aDd establisb a Judicial
service and a magistracy;
.l Govemment Order creating BCS (Judicial) Cadre and other
administralive cadre unconstitutional I
4. Govemm€nt of Bangladesh (GoB) lo eslablish "forthwith"
Judicial SeNice Commissjon with majorily members being
senior Supreme Court (SC) iudges;
5. Govemment ofBangladesh (GoB) to frame Rules forposting,
promotion, grant of leave erc- consistent with Art- l16;
0. Govemment of Bangiadesh (CoB) tp establish Judicial Pay
Commission (JPC);
7. Primacy of SC's views over execulive in exercising coolrol
und discipline of persons in jud'cial scrvice.
 lhr lnoeocndcnc. oiJu.n J'} 1ljangl|de,, a\rrMlc'one 35
l4 Bdighkla\h Jaund ol Pthli. Atlninithltion \hrrqrl l:1o t \o"htt Ud.h al Ha
'?"t.

c. Draft Bangladesh Judicial S€wice (S€rvice Constitution'

8. Rules under Article 133 to b€ ftamed to ensure essential
Composition, R€cruitment and S'rspensjon, Djsmissal &
conditions ofjudicial independence (i) securjty oftenure, (ii)
Rcmo\dl, Rules: 2002
security of salary and other benefits and (iii) instituiional
independence from the Pa.liament and Executive;
d. Dtafi Bangladesh Judicial Service (Posling, Promotion'
Leave, Control, Discipline and oth Service Conditions)
9. Budgetary indep';ndence of SC;
Rules:2002.
10. Judicial Service Mcmbers subject to Adftinisrratjve Tribunal;
e. Drrll ( odc ofCnmrnal Procedure {Amendrn€nir Bilt
ll. Parliament nray anend Constitution to secure ind€pendence of
judiciary; Th€s€ drafis were published as gazette on June 12,2006 and finally

12. Pending new Judicial Pay Commission (JPC) throush prop€r amendments on January 16' 2007- The Cod€ of
Criminal Procedure on Februarv 11,2007 which was finallv published
recommendation, m€mbers ofjudiciary lo receive salaries as
as revrsed on AP I ll. 2007
before.

11is a positive initialive that the Supreme Court s l2-poinr dir€ctions
provide concrete guidance on how to precede with the s€paralion
Seperrtion ofJudiriary in Banghdesh: A Mil€saon€
The iudiciary tinally embarked on a hislorical joumey on Nov€mber
l,2007 as it came oul ofthe dir€ct control ofihe executive organ of
the govemment. The much-demanded implemenlatioir of the
separation ol tbe judiciary is now expected to ensure justice wilhoul
any hindrancc ds in the pas! whenjustice oti€n used to be delay€d and

The independence ofjudiciary was a challenging issue in Bangladesh the judicial proc€ss \{as conlrolled by the execntive'

although it is constituti, nal obliSation. It is a way 1o ensure human
rigbts and people's deriland. needs and aspirations. The politicai
culture is the main reason to implemenl the process. The present
Carelaker Govemment of Bangladesh created a milestone in the
history of Bangladesh by implemcnting independent judiciary on
Novenber l, 2007. Tb€ €vents ofthe milestone are prcsented below_
The Msadar Hossain case is the main initiative in the process of
independence of judiciary. Govemment took following action aller
l2-point dir€ctions.
. Financial Autonomy ofSupreme Corn (SC) secured;
. Judi )ial Sewice Commission (JSC) .:shblished;
. 5 La;s-Dmft€d
a. Bangladesh ]udicial Servicc Conrmission (JSC) Rules,
2002 (notifi d 2004);
b. Draft Bang,adesh Judicial Service (Pay Commission)
Rules: 2002.
The magrslrirtc couns across lhe country came out of lhe executive
control and continued operatibn undet tbe authority of the Supr€me
Courr (SC). 'Ihe Chief Advise. of th€ Caretaker Covemmenl
inaugurated Dhaka Dirtrict Judicial Magistracy and the Dhaka
Metropolitan Magistracy at the Bangladesh-China Friendship
Confer€nce Centr€. Lawyers across the country obs€rved the day as
fte S(paralion ofJudrciary Dav
Supreme Court Registrar Ikleder Ahmed on behalf of the lower coun
judges told, "Appointment of 655 judicial magistrates has been
approved and 218 ofthem have already been appointed' The Supreme
Courl appointed 202 judicial magistrates from the Session Judge's
Couns whil€ the rest joined the iudicial service from the
administmtion"'". A tolal of 4500 ofliciats and stalT have been
approved tbr mnning the judicjal Process under the independcnt
36 Aanglo.les h Jbunal aJ Public A.lhiniltrotio,
judiciary. Ofthem 600 judicial and 55 m€tropolitan magistrates who
will work in district and metropolitan areas respectively; others ar€
official staff
The rul€ of law and democmcy could only be achieval when a
gov€mment is firlly aware ofrhejudiciary's role in gov€manc€ and the
oonstitution is noi €nough to proteca people's rights and freedoms; it
needs to be complemenled by an jndependeDt, efficient, and
functioning Judiciary. Bul in our counlry it is widely believed that
ministers or adminislralors used to largely influence the judicial
pfoc€sses, pa cularly Sfanting bail and Passing orders, as thc
executive magistrates worked under their conlrol. ln cases ol non-
compliance with lhe superiors' diredives, the magistrates would
mostly be stripped oftheir magistracy power and tmnsferred to other
administrative jobs. Different political govemments even used the
magislrate courls to get political purposes served or to gajn other
Around 600 executive magistrates entrusted by the administntion
with judicral job relumed to their administrativc duties. The SC has
already appointed 202 j udicial magrstmtes to carry oul theduti€s al the
magistrate courts.
Meanwhile, the existing backlog of around five lakh cases pending
with the magistrate couns is feared to worsen further due to the
insufici€nt numb€r of.judicial magistntes. The overload of cases at
rhe session judge's courls is also f€arcd to d€teriorate as the judicial
magistr-dres have been selecled from dill€renl mnks at the s€ssions
judge's courts.
According to Ikteder Ahmed, Registrar of Supreme Court, "The
judicial magistrates will be canying out judicial duties round the
clock. So, the cases lat magistrate's courlsl will be disposed of
quickly." He said morejudicial rnagistrales will be appointed in wilhin
thrce months. The executive magistrates could not spend their full
time dealing with cases al th€ir courts as lhey also had a number of
otherduties to perform. He also expressed, "The execuiive magistrates
rhc hdcFndence orJudrci&y l. Blngladssh: ANcwMileslonc.. 31
Snofulul ltlo t/ Nashtr U. nt//11 u.$itri.
do nol have adequate Judicial knowledge as they do not have any
rlegree in law. The separalionoflhejudiciary will be helpful to ensure
qrick justice. Separation of the judiciary is a constitutional mandate
lnd a demand of the people for the welfare of the people. We hope
Ndicialmagistrates will be able to carry outduiies independently once
(hc soparation h implemented" ro.
Inrplementation of separalion of judiciary has also created an
opportunity for it to combar conuption withinjudiciary and outside of
rhcjudiciary Within thejudi€ial system, an indepcndent judiciary can
conrbat comrption through superv'sion and monitoring over the
tdminislration and budgelary process of the coun, the appointment,
promolion and removal process ofthejudges.
Separation of judiciary from ex€cutive, undoubtedly, facilitates
rndepcndences ofjudges so that theycan actwithout extemal piessure-
A lrue separation of Judiciary also neccssarily presupposes
accounlability ofjudges through a system ofcheck and balance.
Challeng€s of lndependenc€ of Judicirry
Financl.l probtem: Separation ofjudiciary creates heavy financial
burden. Mobilising financial resources is vitally inrportant for
ellective and independenl lunctioning of judiciary Currently the
Supreme Court is dependent on financial matters on executive branch
as budge( allocation for meeting the expenses ofthe Supreme Courl is
made by relevant ministry, which remains a sturnbling block in the
way of foll aulonomy ofjudiciary.
l.ack of lnfrastructure: Judicial depadment needs some immediate
rcquirements such as new buildings and other logislic suppons. But it
will take a long time bocause new infiaslructures cannot be
constructed at overnight. Otherwise, judicial organ is not y€l self-
independent in finance to establish new b'rildings for the maintenance
of the deparlm€nt and secur€ the judges while govemm€nt has no
prepamtion to fund for lh€se establishmenls. Thafs why;
lccommodation problem has alr€ady been arisen after separation of
thejudiciary.
:38 B angl ad.! h J. u rna I o I Pu b I ic
Conflicting with the main spirit of the separation: Govemment
decision to give the executive magisrmtes some judicial power
conflicts with the spirit of separation of the judiciary from the
Incomplete separation: As tle magistracy has been brought under
the Ministry ofLaw (MoL), it is not separalion of the judiciary in the
real sense. To ensure tru€ separation of the judiciary, the magistracy
needs to be brought under a separate secretariat under the Supreme
Court.
Skilled Human Resources; Judicial deparlment has already
separated but not yet institutionalized with skilled manpower
lnstitutional Capacity: Th€ independ€nce of Judiciary is a
chapter in the Judicial syslem ofBanglad€sh. It is under process and
going to be organized. The adhinistrative and legal frarnework of
present independence ofludiciary is not fully eslablished. The lack of
institutional capaoity is found for financial and manageial rcasons
Conclusion and Recommendations
In fine, we oan conclude that ending all conjectures conceming
smooth transition; thejudiciary has finally been made an independent
orgrn as a true govemmental sysrem. Ttis is undoubtedly a milestone
that has beer achieved lo advance and ensure greater judicial
indep€ndence and thereby establish rule of law in th€ country. The
control and supervisory authority of the Supreme Court over the
judicial magistrates would be exercised in full neasure wilh a check
and balance sysrem pur in pla.e.
Any new srep fols ard may ha\ e \ume rnrlrdl problemc q hrch dre to be
overcome through the application ofsome remedial steps:
. In order to implement the directives of Masdar Hossain case
tully, the constitulion may be amended to make separation
more efective and complete. Article 115 and 116 of the
Constitution which vests authority to the President to appoint
. and control the oflces of the judicial seNices may be amended
to v€st those powers fully to th€ Supreme Court.
A d tu in is rtat ion lhd lllcp.nncrcc oajud'.rary in Bangladesh: A Ne* Mrte(oft j9
Sh.littut hlart/ N6hn U.tt1n t Ho:leri(
. A separate pay commission as mandated by Judicial pay
('onrmission Rule should be estabtjshed as soon as possible to
lbmulate separate salary strucrure for ofiiciats of judjcial
services in order that it reflects the special nature of itsJob
. A guideline should be designed and inrptemented for the
appointment ofthejudges olhigherjudiciat process in order to
bring greater accounrabilit and transparency in th€irset€ction
. A separate secretanar may b€ established under the authority
been
ofthe ChiefJustice to monitor the wholc process.
. I-hereis the need for logistic support and efficient human
new
resources in order to make the separation of iudiciary
nreaningful.
. Placing the entir€ lower Judiciary under the contrcl of the
Supreme Court from the Ministry of Law
. For an effective separation ofjudiciary from the executive ir is
ofpivotal importance that the Supreme Court has to hav€ an
independent and self,contained secretariat.
. .ludges should have authority to jusrity separarion of the
judiciary from the executive control through candid
dispensation ofjustic€. Only then the separation ofjudiciary
would be meaningful.
 I rL fNidcncc.iludLc ary in SangLldcsh: A New Milcsonc . 41
40 Sanslqleth Jort (lol Public ld,hiritrlnion slnlqul Nohr' N6hit u r/nl Ha!:ifrt.

*ww.adb org/Do{uments/Events/2003/R!TA5987/Final Overvie

Not€s & R€ferences
w_Rcpon.pdf [Accessedon 27.12.2007]
L System ol a n€utral, non party in(crim govemment berwcen
two elected govemments on basis of anicle 588 01 lhe
ll A Session Court is a court law which cxists in several
( bnnnonwealth couolnes.
Constilution of the People's Republic of Bangtadesh tbr
holding fuoe, fair and crcdible election. 12. lnlcrviewon 5th March,2004 by Sierd t{adclywith Dr Kamal
Ilossain, an erninent lawy€r of Bangladesh and the senior most
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l. H J. I-ask;, "Judiciary" in E. R A. Seligman (ed.):
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ll. l{ussain. M.M. (2003). Reponing on Bail Requircs Thinking-
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November 15, 1995 lbr the separation ofjudiciary
5. Montesquieu, The Spirit ofLaw, 1748,pp. l5t-152.
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Overview and Countrylevel Summaries, 2003.

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