Introduction: Separation of judiciary is the precondition of the sound of an independent judiciary. After many years of false promises and hollow words of commitment, the Judiciary finally separated from the executive on November 1, 2007. This is undoubtedly a milestone that ensures greater judicial independence and establishes rule of law in the country.
Independence of Judiciary: 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. Independence of judiciary depends on certain conditions like mode of appointment of the judges, security of their tenure in the office, and adequate remuneration and privileges. The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence:
1. Substantive Independence of the Judges,
2. Personal Independence,
3. Collective Independence and
4. Internal Independence.
Need for Separation: A state primarily comprised of three organs the executive, the judiciary, and the legislature. The executive refers to the government administration which includes the political party in power. The executive is responsible for policy making and upholding public interest as they come to power through a popular mandate. The legislature refers to parliament which is responsible for making laws. The judge’s courts and the trial procedures are together called the judiciary, which ensures that the laws are adhered to by the government and citizens of the state. Theoretically, complete separation of the three organs of the state is essential in ensuring that the executive cannot practice tyrannical powers over the others.
Steps for Separation of Judiciary: The first attempt was taken after the division of the sub-continent in 1947, Pakistan government enacted East Pakistan (then Bangladesh was under Pakistan government) Act No. XXIII of 1957, which provided for a separation of judiciary from the executive. In Bangladesh, the then East Pakistan, the need for an independent judiciary was raised as early as in 1954. As regards independence and separation of judiciary, our constitution of 1972 is fairly developed. But no progress was made to implement the constitutional obligation on the government by 1974 when the then parliament adopted the 4th amendment to the constitution and introduced the one-party rule of Bangladesh Krishak Sramik Awami League (BAKSAL). After the assassination of Sheikh Mujibur Rahman, the military took over the power in 1975. And for the next 16 years, under the autocratic rule of the military democracy was completely abandoned. During this time, no work was done to give effect to the constitutional obligation of successive governments to separate the judiciary from the executive.
After the fall of autocratic rule in 1990, expectation was high to ensure separation of judiciary. But the next two governments of 1991 and 1996 did nothing in this regard except spoiling its tenure. In 1999, the Supreme Court issued 12 point directives in the famous Mazdar Hossain case to ensure separation of judiciary from the executive. The successive governments have taken time again and again to delay the process. It may be recalled that the caretaker government (2001) has all measures to ensure separation but stop at the request of AL and BNP two major parties of the country.
The current military-driven interim government took necessary steps to ensure the separation of judiciary from the executive and declared the judiciary independent from November 1, 2007. With the historic separation of the judiciary from the executive interference at long last, the nation 36 years cherished dream came true. It may be noted that Pakistan and India have taken necessary steps for free the judiciary from the executive at all levels in 1973 and 1974 respectively.
Demands of the Admin Cadre: In response to the admin cadre reaction, the government is considering accommodating some of the demands of the admin cadre. These are
– To return some of the judicial power to the administrative officials.
– To remove the discrepancy between the service experiences required for
the admin and judicial cadres to be absorbed in the judicial service.
– To prepare separate rooms for the judicial magistrates and offices and spaces occupied by the admin cadre Magistra But the adjustment will ultimately depend on the approval of the Supreme Court.
Functioning of Judiciary: The judiciary becomes independent executive with 218 judicial magistrates, 224 courtrooms, 1043 st and four lakh criminal cases pending with the magistrate courts Adviser said, the government has created a total of 4273 posts magistracy including 655 posts for judicial magistrates and 36 support staff towards facilitating an effective and functioning independent judiciary. The supreme court registrar said, 218 magistrates – 202 judiciaries and 16 from the administrative cadre service who judicial service would start running the judicial magistracy.
Structure of the judiciary: Bangladesh’s constitution came into force on December 16, 1972, the first anniversary of the country’s independence. It contains fairly stringent safeguards for the independence of the judiciary in Article 95, Article-96, and Article 99. At a glance, the judiciary of Bangladesh consists of two divisions, the supreme court and the subordinate courts. The highest court in Bangladesh, the supreme court, is actually composed of two divisions: the appellate divisions and the high court Division. The Chief Justice of the supreme court sits in the Appellate Division and is the Chief Justice of Bangladesh. There is no separate Chief Justice of the high court division. The lower Judiciary in Bangladesh consists of two parts – district courts and sessions courts, courts of magistrates.
Two Sets of Magistrates: As a result of the separation, there are now two sets of magistrates the judicial magistrates and the executive magistrates, The judicial magistrates who will strictly perform judicial functions and the executive magistrates who will not perform judicial functions but will be able to exercise magistracy powers in certain situations, for example, to disperse any unlawful assemble, to issue injunctions as immediate measures in the case of public nuisance, to issue search warrants, to arrest or order the arrest of offenders, to endorse a warrant or order for removal of an accused person arrested under the warrant, to enable search by postal and telegraph authorities for documents and to detain them, to direct searching of any place, to require security to keep the peace, to discharge sureties and to order imposition of section 144.
The historic separation of the judiciary from the executive effect from November 1, 2007. The government has created a total of 4273 posts for the judicial magistracy including 655 post for judicial magistrates and 3618 posts for staff. Independent judiciary functioning with 218 judicial magistrates, 224 court rooms, 1043 staff and four lakhs pending cases. After 36 years of its independent judiciary is finally free from executive control and now comes under the new jurisdiction of the Bangladesh Supreme Court.
Conclusion: Civil society should come forward, the politicians and executive authority should understand that a sound judicial system keeps the equilibrium of a society. If the judicial edifice weakens, the democratic system will not function and the social fabric will be broken down. So, all the people concerned with the judiciary have to play an active and effective role from an honest point of view. Then the independence of the judiciary will bring effective fruits in the future.