Do we have an Independent Judiciary?

Independence of the judiciary is undisputedly said to be the basic requisite for ensuring a free
and fair society under the rule of law. To put it simply, independence of the judiciary means the
institutional independence of the judiciary as well as of the judges who form a part of the
judiciary. While the judiciary as an institution should be independent in terms of finance and
administration, the judges should be independent and free from all external factors in order to
exercise the judiciary's functions in an unbiased manner. The primary talk on the independence
of the judiciary is based on the doctrine of separation of powers, which holds that the judiciary
should remain separated and independent from the executive and the legislature branches of the
government. Through this paper I will try to show the influenced condition of judiciary of
Bangladesh how they ere influenced by rulling party.

Despite a constitutional mandate for separation of judiciary from the executive organs of the
state, until 2009 the subordinate courts in Bangladesh remained formally subject to executive
control with magistrates performing the dual role of executive officer of the government as well
as that of a judicial officer. In 2007, the caretaker government took initiatives to implement the
judgment by promulgating two ordinances ( No II and IV of 2007), and by making four service
rules namely (a) Bangladesh Judicial Service Commission Rules, 2007, (b) Bangladesh Judicial
Service (Pay Commission) Rules 2007, c) Bangladesh Judicial Service Commission
(Constitution of Service, Appointments in the Service and Suspension, Removal & Dismissal
from the Service) Rules, 2007 and (d) Bangladesh Judicial Service (Posting, Promotion, Grant of
Leave, Control, Discipline and other Condition of Service) Rules, 2007. The present government
in 2009 amended the Code of Criminal Procedure 1898 by Act No. XXXII of 2009, which
formally removed the impediments in the separation of the lower judiciary from executive
control, and in the appointment of judicial magistrates. How independently has our separate
Judiciary functioned in the last three years after this formal separation? How much independent
our present judiciary is? This write-up examines these questions.

The Bangladesh Judicial Service Commission since its establishment in 2007 has conducted five
judicial service examinations, and accordingly recruited and appointed judges to the lower
judiciary. However, no separate secretariat has been established for the judiciary, and thus
appointment, transfer, promotion of the judges of lower judiciary are still administered by the
executive through the Ministry of Law, Justice and Parliamentary Affairs, instead of the office of
the Chief Justice. It is alleged that this results in inhibiting judicial independence, as premature
transfers and arbitrary postings /promotions/ removals exert political pressure on the judiciary.

Serious controversy has arisen regarding the frequent appointments to the High Court Divisions
of the Supreme Court. There are allegations that the appointments are marked by political bias.
Bangladesh still does not have a legislation prescribing detailed 'qualifications' for the
appointment of judges to the Supreme Court. Despite a strong civil society demand and a
recommendation in the landmark judgment in Idrisur Rahman v Bangladesh in 2008 for making
law specifying appointment guidelines, the government has yet to enact such a legislation.
Article 95 of the Constitution of Bangladesh provides for the appointment of judges to the
Supreme Court. It dictates that a person cannot be qualified for appointment as a judge unless he
or she is a citizen of Bangladesh and has practiced law in the Supreme Court for at least ten
years, or has held judicial office in the country for at least ten years, or has other such
qualifications as may be 'prescribed by law'. In the absence of a legislation prescribing detailed
qualification, the 'at least ten years' experience as a lawyer or judicial officer appears as a broad
criterion, leaving room for political manoeuvring in selection and appointment of judges to the
Supreme Court.

Appointment to the superior judiciary was not a controversial issue before the restoration of
democracy in 1991. There was a convention of consultation with the Chief Justice before making
any appointment. Until the fourth amendment of the Constitution in 1975, the provision was that
'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.' The fourth amendment removed the
explicit requirement that the Chief Justice of the

Supreme Court of Bangladesh should be consulted as part of the process of appointing judges.
Although successive governments have attempted to comply with the convention of consultation
with the Chief Justice, political affiliation started playing a significant role in appointments of
the judges to the Supreme Court from the 1990s onwards. In Idrisur Rahman v Bangladesh made
it clear that the recommendation of the Chief Justice would be binding on the President. The
Appellate Division upheld the High Court's judgment in 2009 (15 BLC (AD) 49) and
recommended making a law specifying guidelines. It clearly suggested that in the matter of
selection of judges, the opinion of the chief justice should be dominant in the area of legal
acumen and suitability for the appointment, and in the area of antecedents the opinion of the
executive should be dominant.' On 6 June, 2010 the High Court asked the government to explain
in six weeks ,why specific guidelines should not be framed for appointment of judges to bring
transparency and competitiveness in the process.

whether the CJ was really consulted, and if consulted, then how the CJ could select some judges
who are allegedly less qualified to be appointed to the higher judiciary.

There has been controversy over appointment of the Chief Justices of Bangladesh as well. In the
appointment of the CJ, the principle of seniority, as reflected in Articles 96 and 97 of the
Constitution and in Bangladesh v Md. Idrisur Rahman , was largely recognised. However, the
principle has been repeatedly violated in several years with appointments seeing the senior- most
judge of the Appellate Division being superseded.
The appointment of Chief Justice A.B.M. Khairul Haque by the President in September 2010
was alleged to have involved the supersession of two more senior judges of the Appellate
Division. The Supreme Court Bar Association, headed by members affiliated with opposition
parties, condemned the selection.

There is criticism also regarding the appointment of public prosecutors, who play a great role in
aiding the judiciary to come to a proper decision-making in state-led cases. Bangladesh has a
longstanding practice of appointing ruling party-affiliated lawyers as public prosecutors. It is
alleged that, following the practices of the past, the current government has replaced the entire
group of public prosecutors with members or genuine supporters of the governing party and has
also made politically motivated appointments to the Office of the Attorney General.

There are also allegations regarding arbitrariness in judicial action. There are frequent reports of
High Court Judges refusing to hear matters on the grounds of feeling 'embarrassment'. This
practice, in which noreasons are provided, has raised public concern.

The manner of refusal of bail to political leaders has raised concerns about whether the courts are
functioning freely.Controversy also arose due to withdrawal of cases on allegedly political
considerations. In 2009, a committee was set up under the law minister to review applications for
withdrawal of cases on the grounds of their being politically motivated. By March 2011, the
committee had recommended withdrawal of 4,687 cases, most of which allegedly involved
members of the ruling coalition .

These included twelve corruption cases implicatingsenior ruling party leaders, their supporters,
and relatives. At the same time, the committee appeared reluctant to approve similar applications
filed against opposition party leaders or by journalists and human rights activists including
journalist Jahangir Alam Akash, whom the caretaker government had reportedly implicated in
false criminal cases in retaliation for his protest against extrajudicial killings. Presidential
pardons in several sensational murder cases to persons affiliated with the ruling party seriously
undermined the rule of law. In September 2010, President Zillur Rahman granted presidential
pardons to 20 death row inmates who were convicted of the murder of the Jubo Dal leader
Sabbir AhmedGama in Laxmipur.

Thus, the questions and doubts as to an independent judiciary have come into public discussion
time and again due to controversial appointments to the High Court, arbitrariness in judicial
actions, appointments of Chief Justices, withdrawal of cases on political ground and arbitrary
presidential pardons in the last three years even after the formal separation of the judiciary from
the executive.Is it the sign of independent judiciary?

Does this government believe that people have every right to know the answers to these
questions? If it is so, then it should act immediately to dispel all these doubts from public
consciousness.It is very disappointing thing for an independent country like Bangladesh.So there
will be question of people"Do we have an Independent Judiciary?
The independence of Bangladesh judiciary similiar to the cow in book/latter not in reality. We
have independence of judiciary in name not in work,this kind of judiciary cannot protect itself
from political influence how it can protect the people.

References :
1. The Daily Independent, 20/1/2014
2. The Dhaka Courier