Independence Of Judiciaty And A Masder Hossain Case

Chapter-01 HISTORY OF BANGLADESH

STRUCTURE OF BANGLADESH GOVERNMENT

Type: Parliamentary democracy

Independence: 1971 (from Pakistan).

Constitution: 1972; amended 1974, 1979, 1986, 1988, 1991, 1996, 2004.Branches: Executive--president (chief of state),

Prime minister (head of government), Cabinet. Legislative--unicameral Parliament (345 members). Judicial--civil court system based on British model.

Administrative subdivisions: Divisions, districts, subdistricts, unions, villages.Political parties: 30-40 active political parties. Largest ones include

Bangladesh Nationalist Party (BNP), The Awami League (AL),The Jatiya Party, In addition, the Jamaat-e-Islami Party.

Suffrage: Universal at age 18.

GEOGRAPHYBangladesh is a low-lying, riparian country located in South Asia with a largely marshy jungle coastline of 710 kilometers (440 mi.) on the northern littoral of the Bay of Bengal. Formed by a deltaic plain at the confluence of the Ganges (Padma), Brahmaputra (Jamuna), and Meghna Rivers and their tributaries, Bangladesh's alluvial soil is highly fertile but vulnerable to flood and drought. Hills rise above the plain only in the Chittagong Hill Tracts in the far southeast and the Sylhet division in the northeast. Straddling the Tropic of Cancer, Bangladesh has a subtropical monsoonal climate characterized by heavy seasonal rainfall, moderately warm temperatures, and high humidity. Natural calamities, such as floods, tropical cyclones, tornadoes, and tidal bores affect the country almost every year. Bangladesh also is affected by major cyclones on average 16 times a decade.

Urbanization is proceeding rapidly, and it is estimated that only 30% of the population entering the labor force in the future will be absorbed into agriculture, although many will likely find other kinds of work in rural areas. The areas around Dhaka and Comilla are the most densely settled. The Sundarbans, an area of coastal tropical jungle in the southwest and last wild home of the Bengal tiger, and the Chittagong Hill Tracts on the southeastern border with Burma and India, are the least densely populated.

PEOPLEThe area that is now Bangladesh has a rich historical and cultural past, combining Dravidian, Indo-Aryan, Mongol/Mughul, Arab, Persian, Turkic, and west European cultures. Residents of Bangladesh, about 98% of who are ethnic Bengali and speak Bangla, are called

Bangladeshis. Urdu speaking, non-Bengali Muslims of Indian origin, and various tribal groups, mostly in the Chittagong Hill Tracts, comprise the remainder. Most Bangladeshis (about 83%) are Muslims, but Hindus constitute a sizable (16%) minority. There also are a small number of Buddhists, Christians, and animists. English is spoken in urban areas and among the educated.

Sufi religious teachers succeeded in converting many Bengalis to Islam, even before the arrival of Muslim armies from the west. About 1200 AD, Muslim invaders established political control over the Bengal region. This political control also encouraged conversion to Islam. Since then, Islam has played a crucial role in the region's history and politics, with a Muslim majority emerging, particularly in the eastern region of Bengal.

HISTORY OF BANGLADESHBengal was absorbed into the Mughul Empire in the 16th century, and Dhaka, the seat of a nasal (the representative of the emperor), gained some importance as a provincial center. But it remained remote and thus a difficult to govern region--especially the section east of the Brahmaputra River--outside the mainstream of Mughul politics. Portuguese traders and missionaries were the first Europeans to reach Bengal in the latter part of the 15th century. They were followed by representatives of the Dutch, French, and British East India Companies. By the end of the 17th century, the British presence on the Indian subcontinent was centered in Calcutta. During the 18th and 19th centuries, the British gradually extended their commercial contacts and administrative control beyond Calcutta to Bengal. In 1859, the British Crown replaced the East India Company, extending British dominion from Bengal, which became a region of India, in the east to the Indus River in the west.

The rise of nationalism throughout British-controlled India in the late 19th century resulted in mounting animosity between the Hindu and Muslim communities. In 1885, the All-India National Congress was founded with Indian and British membership. Muslims seeking an organization of their own founded the All-India Muslim League in 1906. Although both the League and the Congress supported the goal of Indian self-government within the British Empire, the two parties were unable to agree on a way to ensure the protection of Muslim political, social, and economic rights. The subsequent history of the nationalist movement was characterized by periods of Hindu-Muslim cooperation, as well as by communal antagonism. The idea of a separate Muslim state gained increasing popularity among Indian Muslims after 1936, when the Muslim League suffered a decisive defeat in the first elections under India's 1935 constitution. In 1940, the Muslim League called for an independent state in regions where Muslims were in the majority. Campaigning on that platform in provincial elections in 1946, the League won the majority of the Muslim seats contested in Bengal. Widespread communal violence followed, especially in Calcutta.

When British India was partitioned and the independent dominions of India and Pakistan were created in 1947, the region of Bengal was divided along religious lines. The predominantly Muslim eastern half was designated East Pakistan--and made part of the newly independent Pakistan--while the predominantly Hindu western part became the Indian state of West Bengal. Pakistan's history from 1947 to 1971 was marked by political instability and economic difficulties. Dominion status was rejected in 1956 in favor of an "Islamic republic within the Commonwealth." Attempts at civilian political rule failed, and the government imposed martial law between 1958 and 1962, and again between 1969 and 1971.

Almost from the advent of independent Pakistan in 1947, frictions developed between East and West Pakistan, which were separated by more than 1,000 miles of Indian territory. East Pakistanis felt exploited by the West Pakistan-dominated central government. Linguistic, cultural, and ethnic differences also contributed to the estrangement of East from West Pakistan. Bengalis strongly resisted attempts to impose Urdu as the sole official language of Pakistan. Responding to these grievances, Sheikh Mujibur Rahman in 1948 formed a students' organization called the Chhatra League. In 1949, Maulana Abdul Hamid Khan Bhasani and some other Bengali leaders formed the East Pakistan Awami Muslim League (AL), a party designed mainly to promote Bengali interests. This party dropped the word Muslim from its name in 1955 and came to be known as Awami League. Mujib became president of the Awami League in 1966 and emerged as leader of the Bengali autonomy movement. In 1966, he was arrested for his political activities.

After the Awami League won almost all the East Pakistan seats of the Pakistan national assembly in 1970-71 elections, West Pakistan opened talks with the East on constitutional questions about the division of power between the central government and the provinces, as well as the formation of a national government headed by the Awami League. The talks proved unsuccessful, however, and on March 1, 1971, Pakistani President Yahya Khan indefinitely postponed the pending national assembly session, precipitating massive civil disobedience in East Pakistan. Mujib was arrested again; his party was banned, and most of his aides fled to India and organized a provisional government. On March 26, 1971, following a bloody crackdown by the Pakistan Army, Bengali nationalists declared an independent People's Republic of Bangladesh. As fighting grew between the army and the Bengali mukti bahini ("freedom fighters"), an estimated 10 million Bengalis, mainly Hindus, sought refuge in the Indian states of Assam and West Bengal. On April 17, 1971, a provisional government was formed in Meherpur district in western Bangladesh bordering India with Sheikh Mujibur Rahman, who was in prison in Pakistan, as President, Syed Nazrul Islam as Acting President, and Tajuddin Ahmed as Prime Minister.

The crisis in East Pakistan produced new strains in Pakistan's troubled relations with India. The two nations had fought a war in 1965, mainly in the west, but the refugee pressure in India in the fall of 1971 produced new tensions in the east. Indian sympathies lay with East Pakistan, and in November, India intervened on the side of the Bangladeshis. On December 16, 1971, Pakistani forces surrendered, and Bangladesh--meaning "Bengal country"--was born; the new country became a parliamentary democracy under a 1972 constitution.The first government of the new nation of Bangladesh was formed in Dhaka with Justice Abu Sayeed Choudhury as President, and Sheikh Mujibur Rahman ("Mujib")--who was released from Pakistani prison in early 1972--as Prime Minister.

Sheikh Mujibur Rahman, 1972-75Mujib came to office with immense personal popularity but had difficulty transforming this popular support into the political strength needed to function as head of government. The new constitution, which came into force in December 1972, created a strong executive prime minister, a largely ceremonial presidency, an independent judiciary, and a unicameral legislature on a modified Westminster model. The 1972 constitution adopted as state policy the Awami League's (AL) four basic principles of nationalism, secularism, socialism, and democracy.

The first parliamentary elections held under the 1972 constitution were in March 1973, with the Awami League winning a massive majority. No other political party in Bangladesh's early years was able to duplicate or challenge the League's broad-based appeal, membership, or organizational strength. Relying heavily on experienced civil servants and members of the Awami League, the new Bangladesh Government focused on relief, rehabilitation, and reconstruction of the economy and society. Economic conditions remained precarious, however. In December 1974, Mujib decided that continuing economic deterioration and mounting civil disorder required strong measures. After proclaiming a state of emergency, Mujib used his parliamentary majority to win a constitutional amendment limiting the powers of the legislative and judicial branches, establishing an executive presidency, and instituting a one-party system, the Bangladesh Krishak Sramik Awami League (BAKSAL), which all members of Parliament (and senior civil and military officials) were obliged to join.

Despite some improvement in the economic situation during the first half of 1975, implementation of promised political reforms was slow, and criticism of government policies became increasingly centered on Mujib. In August 1975, Mujib, and most of his family, were assassinated by mid-level army officers. His daughters, Sheikh Hasina and Sheikh Rehana, were out of the country. A new government, headed by former Mujib associate Khandakar Moshtaque, was formed.

Ziaur Rahman, 1975-81Successive military coups resulted in the emergence of Army Chief of Staff Gen. Ziaur Rahman ("Zia") as strongman. He pledged the army's support to the civilian government headed by President Chief Justice Sayem. Acting at Zia's behest, Sayem dissolved Parliament, promising fresh elections in 1977, and instituted martial law.

Acting behind the scenes of the Martial Law Administration (MLA), Zia sought to invigorate government policy and administration. While continuing the ban on political parties, he sought to revitalize the demoralized bureaucracy, to begin new economic development programs, and to emphasize family planning. In November 1976, Zia became Chief Martial Law Administrator (CMLA) and assumed the presidency upon Sayem's retirement 5 months later, promising national elections in 1978.

As President, Zia announced a 19-point program of economic reform and began dismantling the MLA. Keeping his promise to hold elections, Zia won a 5-year term in June 1978 elections, with 76% of the vote. In November 1978, his government removed the remaining restrictions on political party activities in time for parliamentary elections in February 1979. These elections, which were contested by more than 30 parties, marked the culmination of Zia's transformation of Bangladesh's Government from the MLA to a democratically elected, constitutional one. The AL and the Bangladesh Nationalist Party (BNP), founded by Zia, emerged as the two major parties.

In May 1981, Zia was assassinated in Chittagong by dissident elements of the military. The attempted coup never spread beyond that city, and the major conspirators were either taken into custody or killed. In accordance with the constitution, Vice President Justice Abdus Sattar was sworn in as acting president. He declared a new national emergency and called for election of a new president within 6 months--an election Sattar won as the BNP's candidate. President Sattar sought to follow the policies of his predecessor and retained essentially the same cabinet, but the army stepped in once again

Hussain Mohammed Ershad, 1982-90Army Chief of Staff Lt. Gen. H.M. Ershad assumed power in a bloodless coup in March 1982. Like his predecessors, Ershad suspended the constitution and--citing pervasive corruption, ineffectual government, and economic mismanagement--declared martial law. The following year, Ershad assumed the presidency, retaining his positions as army chief and CMLA. During most of 1984, Ershad sought the opposition parties' participation in local elections under martial law. The opposition's refusal to participate, however, forced Ershad to abandon these plans. Ershad sought public support for his regime in a national referendum on his leadership in March 1985. He won overwhelmingly, although turnout was small. Two months later, Ershad held elections for local council chairmen. Pro-government candidates won a majority of the posts, setting in motion the President's ambitious decentralization program. Political life was further liberalized in early 1986, and additional political rights, including the right to hold large public rallies, were restored. At the same time, the Jatiya (National) Party, designed as Ershad's political vehicle for the transition from martial law, was established.

Despite a boycott by the BNP, led by President Zia's widow, Begum Khaleda Zia, parliamentary elections were held on schedule in May 1986. The Jatiya Party won a modest majority of the 300 elected seats in the National Assembly. The participation of the Awami League--led by the late President Mujib's daughter, Sheikh Hasina Wajed--lent the elections some credibility, despite widespread charges of voting irregularities.

Ershad resigned as Army Chief of Staff and retired from military service in preparation for the presidential elections, scheduled for October. Protesting that martial law was still in effect, both the BNP and the AL refused to put up opposing candidates. Ershad easily outdistanced the remaining candidates, taking 84% of the vote. Although Ershad's government claimed a turnout of more than 50%, opposition leaders, and much of the foreign press, estimated a far lower percentage and alleged voting irregularities.

Ershad continued his stated commitment to lift martial law. In November 1986, his government mustered the necessary two-thirds majority in the National Assembly to amend the constitution and confirm the previous actions of the martial law regime. The President then lifted martial law, and the opposition parties took their elected seats in the National Assembly.In July 1987, however, after the government hastily pushed through a controversial legislative bill to include military representation on local administrative councils, the opposition walked out of Parliament. Passage of the bill helped spark an opposition movement that quickly gathered momentum, uniting Bangladesh's opposition parties for the first time. The government began to arrest scores of opposition activists under the country's Special Powers Act of 1974. Despite these arrests, opposition parties continued to organize protest marches and nationwide strikes. After declaring a state of emergency, Ershad dissolved Parliament and scheduled fresh elections for March 1988.

All major opposition parties refused government overtures to participate in these polls, maintaining that the government was incapable of holding free and fair elections. Despite the opposition boycott, the government proceeded. The ruling Jatiya Party won 251 of the 300 seats. The Parliament, while still regarded by the opposition as an illegitimate body, held its sessions as scheduled, and passed a large number of bills, including, in June 1988, a controversial constitutional amendment making Islam Bangladesh's state religion and

provision for setting up High Court benches in major cities outside of Dhaka. While Islam remains the state religion, the provision for decentralizing the High Court division has been struck down by the Supreme Court.

By 1989, the domestic political situation in the country seemed to have quieted. The local council elections were generally considered by international observers to have been less violent and more free and fair than previous elections. However, opposition to Ershad's rule began to regain momentum, escalating by the end of 1990 in frequent general strikes, increased campus protests, public rallies, and a general disintegration of law and order.On December 6, 1990, Ershad offered his resignation. On February 27, 1991, after 2 months of widespread civil unrest, an interim government headed by Acting President Chief Justice Shahabuddin Ahmed oversaw what most observers believed to be the nation's most free and fair elections to that date.

Khaleda Zia, 1991-96The center-right BNP won a plurality of seats and formed a government with support from the Islamic fundamentalist party Jamaat-I-Islami, with Khaleda Zia, widow of Ziaur Rahman, obtaining the post of prime minister. Only four parties had more than 10 members elected to the 1991 Parliament: The BNP, led by Prime Minister Begum Khaleda Zia; the AL, led by Sheikh Hasina; the Jamaat-I-Islami (JI), led by Ghulam Azam; and the Jatiya Party (JP), led by acting chairman Mizanur Rahman Choudhury while its founder, former President Ershad, served out a prison sentence on corruption charges. The electorate approved still more changes to the constitution, formally re-creating a parliamentary system and returning governing power to the office of the prime minister, as in Bangladesh's original 1972 constitution. In October 1991, members of Parliament elected a new head of state, President Abdur Rahman Biswas.

In March 1994, controversy over a parliamentary by-election, which the opposition claimed the government had rigged, led to an indefinite boycott of Parliament by the entire opposition. The opposition also began a program of repeated general strikes to press its demand that Khaleda Zia's government resign and a caretaker government supervise a general election. Efforts to mediate the dispute, under the auspices of the Commonwealth Secretariat, failed. After another attempt at a negotiated settlement failed narrowly in late December 1994, the opposition resigned en masse from Parliament. The opposition then continued a campaign of marches, demonstrations, and strikes in an effort to force the government to resign. The opposition, including the Awami League's Sheikh Hasina, pledged to boycott national elections scheduled for February 15, 1996.

In February, Khaleda Zia was re-elected by a landslide in voting boycotted and denounced as unfair by the three main opposition parties. In March 1996, following escalating political turmoil, the sitting Parliament enacted a constitutional amendment to allow a neutral caretaker government to assume power and conduct new parliamentary elections; former Chief Justice Mohammed Habibur Rahman was named Chief Adviser (a position equivalent to prime minister) in the interim government. New parliamentary elections were held in June 1996 and the Awami League won plurality and formed the government with support from the Jatiya Party led by deposed president Ershad; party leader Sheikh Hasina became Prime Minister.

Sheikh Hasina, 1996-2001

Sheikh Hasina formed what she called a "Government of National Consensus" in June 1996, which included one minister from the Jatiya Party and another from the Jatiyo Samajtantric Dal, a very small leftist party. The Jatiya Party never entered into a formal coalition arrangement, and party president H.M. Ershad withdrew his support from the government in September 1997. Only three parties had more than 10 members elected to the 1996 Parliament: The Awami League, BNP, and Jatiya Party. Jatiya Party president, Ershad, was released from prison on bail in January 1997.

International and domestic election observers found the June 1996 election free and fair, and ultimately, the BNP party decided to join the new Parliament. The BNP soon charged that police and Awami League activists were engaged in large-scale harassment and jailing of opposition activists. At the end of 1996, the BNP staged a parliamentary walkout over this and other grievances but returned in January 1997 under a four-point agreement with the ruling party. The BNP asserted that this agreement was never implemented and later staged another walkout in August 1997. The BNP returned to Parliament under another agreement in March 1998.

In June 1999, the BNP and other opposition parties again began to abstain from attending Parliament. Opposition parties staged an increasing number of nationwide general strikes, rising from 6 days of general strikes in 1997 to 27 days in 1999. A four-party opposition alliance formed at the beginning of 1999 announced that it would boycott parliamentary by-elections and local government elections unless the government took steps demanded by the opposition to ensure electoral fairness. The government did not take these steps, and the opposition subsequently boycotted all elections, including municipal council elections in February 1999, several parliamentary by-elections, and the Chittagong city corporation elections in January 2000.

In July 2001, the Awami League government stepped down to allow a caretaker government to preside over parliamentary elections. Political violence that had increased during the Awami League government's tenure continued to increase through the summer in the run up to the election. In August, Khaleda Zia and Sheikh Hasina agreed during a visit of former President Jimmy Carter to respect the results of the election, join Parliament win or lose, foreswear the use of hartals (violently enforced strikes) as political tools, and if successful in forming a government allow for a more meaningful role for the opposition in Parliament. The caretaker government was successful in containing the violence, which allowed a parliamentary general election to be successfully held on October 1, 2001.

Khaleda Zia, 2001-2006The four-party alliance led by the BNP won over a two-thirds majority in Parliament. Begum Khaleda Zia was sworn in on October 10, 2001, as Prime Minister for the third time (first in 1991, second after the February 15, 1996 elections).

Despite her August 2001 pledge and all election monitoring groups declaring the election free and fair, Sheikh Hasina condemned the election, rejected the results, and boycotted Parliament. In 2002, however, she led her party legislators back to Parliament, but the Awami League again walked out in June 2003 to protest derogatory remarks about Hasina by a State Minister and the allegedly partisan role of the Parliamentary Speaker. In June 2004, the AL returned to Parliament without having any of their demands met. They then attended Parliament irregularly before announcing a boycott of the entire June 2005 budget session.

On August 17, 2005, near-synchronized blasts of improvised explosive devices in 63 out of 64 administrative districts targeted mainly government buildings and killed two persons. An extremist Islamist group named Jama'atul Mujahideen, Bangladesh (JMB) claimed responsibility for the blasts, which aimed to press home JMB's demand for a replacement of the secular legal system with Islamic sharia courts. Subsequent attacks on the courts in several districts killed 28 people, including judges, lawyers, and police personnel guarding the courts. A government campaign against the Islamic extremists led to the arrest of hundreds of senior and mid-level JMB leaders. Six top JMB leaders were tried and sentenced to death for their role in the murder of two judges; another leader was tried and sentenced to death in absentia in the same case.

In February 2006, the AL returned to Parliament, demanded early elections, and requested significant changes in the electoral and caretaker government systems to stop alleged moves by the ruling coalition to rig the next election. The AL blamed the BNP for several high-profile attacks on opposition leaders and asserted the BNP was bent on eliminating Sheikh Hasina and the Awami League as a viable force. The BNP and its allies accused the AL of maligning Bangladesh at home and abroad out of jealousy over the government's performance on development and economic issues. Dialogue between the Secretaries General of the main ruling and opposition parties failed to sort out the electoral reform issues.

Caretaker Government, October 2006-January 2009The 13th Amendment to the constitution required the president to offer the position of the Chief Adviser to the immediate past Chief Justice of the Supreme Court, Justice K.M. Hasan, once the previous parliamentary session expired on October 28, 2006. The AL opposed Justice Hasan, alleging that he belonged to the ruling BNP in the past and that the BNP government in 2004 amended the constitution to extend the retirement age for the Supreme Court judges to ensure Justice Hasan became the Chief Adviser to help BNP win the elections. Justice Hasan declined the position, and after two days of violent protests, President Iajuddin Ahmed also assumed the role of Chief Adviser to the caretaker government.

On January 3, 2007, the Awami League announced it would boycott the January 22 parliamentary elections. The Awami League planned a series of country-wide general strikes and transportation blockades.

On January 11, 2007, President Iajuddin Ahmed declared a state of emergency, resigned as Chief Adviser, and indefinitely postponed parliamentary elections. On January 12, 2007, former Bangladesh Bank governor Fakhruddin Ahmed was sworn in as the new Chief Adviser, and ten new advisers (ministers) were appointed. Under emergency provisions, the government suspended certain fundamental rights guaranteed by the constitution and detained a large number of politicians and others on suspicion of involvement in corruption and other crimes. In January 2008, a reshuffle of the caretaker government took place, which included the appointment of special assistants to help oversee the functioning of the administration.On July 16, 2007 the government arrested Awami League president and former Prime Minister Sheikh Hasina on charges of extortion during her tenure as Prime Minister. Hasina was released on parole in June 2008 and allowed to travel to the United States for medical treatment. The cases against her continue. On September 3, 2007, the government arrested BNP chairperson and former Prime Minister Khaleda Zia on charges of corruption. Sheikh

Hasina returned from abroad and Khaleda Zia was released from prison to lead their respective parties in the parliamentary election campaign in the fall of 2008.

Municipal elections were held in 13 city corporations and municipalities on August 4, 2008. These elections were judged free and fair by international and domestic observers. The Election Commission registered over 80 million voters in preparation for parliamentary elections, which were held December 29, 2008. The Awami League swept to a landslide victory in what domestic and international observers declared a free, fair and credible election. The caretaker government ended on January 6, 2009 when Awami League President Sheikh Hasina became Prime Minister.

Sheikh Hasina, 2009-PresentPrime Minister Sheikh Hasina appointed a cabinet of relative newcomers upon taking office in January 2009. The BNP-led opposition attended the opening of the Parliament session, but has since mounted several boycotts in protest of perceived slights by the ruling party. Both sides struggle to break free from their shared history of confrontational politics, and key institutions necessary for strengthening democracy remain weak. As the new government was settling into office, it was rocked by a mutiny by border guards on February 25-26, 2009 in which more than 50 army officers were murdered.

Prime Minister Hasina has sought to increase Bangladesh’s presence on the world stage. As leader of one of the country is most vulnerable to climate change, Hasina has been a vocal advocate for mitigation and adaptation by both developed and developing countries, aligning with the Copenhagen Accord in January 2010. In a sharp change from previous administrations, her government has actively confronted violent extremist groups to deny space to terrorist networks and activities within its borders. The simultaneous elections of the Awami League and the Congress Party in India set the stage for renewed bilateral talks between the countries, an atmosphere that has been improved by counterterrorism cooperation. In January 2010, Hasina traveled to New Delhi to meet with Indian Prime Minister Singh, where they signed three agreements on mutual legal assistance in criminal matters, transfer of sentenced persons, and countering terrorism, organized crime, and illegal drug trafficking; and two memoranda of understanding on energy sharing and cultural exchange programs.

GOVERNMENTThe president, while chief of state, holds a largely ceremonial post; the real power is held by the prime minister, who is head of government. The president is elected by the legislature (Parliament) every 5 years. The president's circumscribed powers are substantially expanded during the tenure of a caretaker government. Under the 13th Amendment, which Parliament passed in March 1996, a caretaker government assumes power temporarily to oversee general elections after dissolution of the Parliament. In the caretaker government, the president has control over the Ministry of Defense, the authority to declare a state of emergency, and the power to dismiss the Chief Adviser and other members of the caretaker government. Once elections have been held and a new government and Parliament are in place, the president's powers and position revert to their largely ceremonial role. The Chief Adviser and other advisers to the caretaker government must be appointed within 15 days after the current Parliament expires.

The prime minister is appointed by the president. The prime minister must be a Member of Parliament (MP) who the president feels commands the confidence of the majority of other MPs. The cabinet is composed of ministers selected by the prime minister and appointed by the president. At least 90% of the ministers must be MPs. The other 10% may be non-MP experts or "technocrats" who are not otherwise disqualified from being elected MPs. According to the constitution, the president can dissolve Parliament upon the written request of the prime minister.

The legislature is a unicameral, 300-seat body. All of its members are elected by universal suffrage at least every five years. Parliament amended the constitution in May 2004, making a provision for 45 seats reserved for women to be distributed among political parties in proportion to their numerical strength in Parliament. Several women's groups have demanded direct election to fill the reserved seats for women

Bangladesh's judiciary is a civil court system based on the British model; the highest court of appeal is the appellate court of the Supreme Court. At the local government level, the country is divided into divisions, districts, sub districts, unions, and villages. Local officials are elected at the union level and selected at the village level. All larger administrative units are run by members of the civil service.

POLITICAL CONDITIONS Despite serious problems related to a dysfunctional political system, weak governance, and pervasive corruption, Bangladesh remains one of the few democracies in the Muslim world. Bangladeshis regard democracy as an important legacy of their bloody war for independence, and they vote in large numbers. However, democratic institutions and practices remain weak.

Bangladesh is generally a force for moderation in international forums, and it is also a long-time leader in international peacekeeping operations. It is the second-largest contributor to UN peacekeeping operations, with 10,481 troops and police active in November 2009. Its activities in international organizations, with other governments, and with its regional partners to promote human rights, democracy, and free markets are coordinated and high-profile. Bangladesh became a member of the United Nations Human Rights Council in May 2006, and began a second term in 2009. However, an explicit goal of its foreign policy has been to strengthen relations with Islamic states, leading to actions such as voting against a December 2009 UN resolution to improve human rights conditions in Iran.

Bangladesh lies at the strategic crossroads of South and Southeast Asia. Potential terrorist movements and activities in or through Bangladesh pose a potentially serious threat to India, Nepal, Bhutan, and Burma, as well as Bangladesh itself. Consequentially, the Bangladesh Government has banned a number of Islamic extremist groups in recent years. In February 2002, the government banned Shahdat al Hiqma, in February 2005 it banned Jagrata Muslim Janata, Bangladesh (JMJB) and Jama'atul Mujahideen Bangladesh (JMB), and in October 2005 it banned Harkatul Jehad Al Islami (HUJI). Following the August 17, 2005 serial bombings in the country, the government launched a crackdown on extremists. In 2006, seven senior JMB leaders were sentenced to death for their role in the 2005 murder of two judges. Six of the seven were executed in March 2007; another leader was tried and sentenced to death in absentia in the same case. In March 2008, the U.S. Government listed Harkatul Jihadi Islami (HUJI)-Bangladesh as a foreign terrorist organization. In October

2009, The Government of Bangladesh added Hizb-ut-Tahrir to the list of banned terrorist organizations. Given its size and location, a major crisis in Bangladesh could have important consequences for regional stability, particularly if significant refugee movements ensue.

Chapter-02 Introduction IntroductionIn 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

Independence of Judiciary

Independence of judiciary means a fair and neutral judicial system of a country. This can afford to take its decisions without any interference of executive or legislative branch of government. Taking into consideration some of the recent discussions made in the Beijing Statement of Independence of the Judiciary (a statement resulting from the cumulated views of thirty-two Asian and Pacific Chief Justices) Judicial independence is defined, in this report as a Judiciary uninhibited by outside influences which may jeopardize. The neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media (personal independence), or from the superior officers (internal independence).

Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from executive or legislative or from the parties themselves or from the superiors and colleagues. 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: It referred to as functional or decisional independence meaning the independence of judges to arrive at their decisions without submitting to any inside or outside pressure;

2. Personal independence: That means the judges are not dependent on government in any way in which might influence them in reaching at decisions in particular cases.

3. Collective Independence: That means institutional administrative and financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative; and

4. Internal Independence: That means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases.

Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it. “Independence of the judiciary”, it is maintained, “lends prestige to the office of a judge and inspires confidence in the general public”.

Separation of the Judiciary

Separation of the judiciary has been argued both as a cause and a guardian of Formal judicial independence. The concept of separation of the judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from intervention and influences from the other branches of government particularly the executive. Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive). For example, in Bangladesh the president in consultation with the Supreme Court according to the constitution, appoints judicial officers other circumstances include functional aspects of the judicial system when the administration of justice is in some way, affected by executive orders or actions. Executive abuse of this constitutional order result in biased appointment of judges, and other officers of the judicial cadre, favoring individuals who support the governing political party. Dr. Kamal Hossain, a respected advocate of the Supreme Court, explains the concept of separation of the judiciary through the idea of double standards. An executive officer follows plans, which are of a vertical nature, with the higher offices guiding the decisions of the lower officers, who look for the best possible ways to further.

The plans established by those higher in the pecking order. Executive decisions are made in lines of policy; law is not a policy. Judges or magistrates performing judicial functions must examine what evidence is given and find a way to best apply it to the law; there is less room for an individual’s perceptions in judicial decisions.

Complete separation is relatively unheard or outside of theory, meaning no judiciary is completely severed from the administrative and legislative bodies because this reduces the potency of checks and balances and creates inefficient communication between organs of the state. A high degree of separation, however, can be a strong guardian of judicial independence, as this paper will attempt to prove.

The constitution of Bangladesh is the first defense of judicial independence, presiding over all the “Republic’s affairs and framing the organization and administration of the government. While constitutional flows exist, regarding separation of the judiciary, there are adequate provisions for formal judicial independence.

Judicial independence in the constitution Part VI of the constitution deals with the judiciary. Art. 7 provide that all powers in the Republic shall be effective only under and by authority of the constitution. The responsibility

of seeing that no functionary of the state oversteps the limit of his power is a necessity, on the judiciary.

Art. 35(3) of the constitution provide “Every person accused of a criminal offence shall have right to a speedy and public trial by an independent and impartial court or tribunal established by the law.

Article 116A provides for independence in the subordinate judiciary while Article 94(4) demands independence of the Supreme Court Judges. Article 116A, while requiring judicial independence, was part of the detrimental changes to the constitution made in 1974 and 1975 discussed later in the paper: Subject to the provisions of the constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.

Separation of the judiciary in the constitutionThe judicial independence of all judicial officers is unconditional according to the constitution of Bangladesh. This ideal is protected primarily through the concept of separation of the judiciary from the other organs of government. Article 22 states directly and unquestionably: The state shall ensure the separation of the judiciary from the executive organs of state. Article 95(1) addressed the method of appointment for the Supreme Court: the president shall appoint The Chief Justice and other Judges. The appointment and control of judges in the subordinate judiciary (judicial service) are described in Articles 115 and 116 stating respectively: Appointment of persons to offices in the judicial service or as magistrates exercising judicial be made by the President with the rules made by him in that behalf. The control (including the power of 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. It is principally through the above articles that the executive branch has been able to gradually intrude upon and influence the judiciary in Bangladesh, creating enormous problems regarding the quality of jurisdiction and the extent of judicial independence. Recently, separation of the judiciary from the executive has been argued as a necessity based on the unconstitutionality of the present organization and while this may well be true, it appears to be he consequential improved functional independence of the judiciary that is the fundamental reason for separation with unconstitutionality being only an argument to ensure its enactment.

Chapter-02

Why need separated judiciary

In order to promote accountability of government, hinder corruption and protect the fundamental freedoms of citizens from the will of the government of the day, it is essential to keep separate the Parliament’s power to make laws, from the Executive’s power to administer laws, and from the Judiciary’s power to hear and determine disputes according to the law. This separation is designed to protect the people from a concentration of power, and the ability of individuals or groups to manipulate government for personal gain and to ignore the will of the people. A true separation of government powers is essential to ensure the accountability of government, hinder corruption and protect the fundamental freedoms of

citizens against the will of the government. Each branch of government must be, and be seen to be, free to act as a check and balance on the other without fear or interference.

There are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs.

The question, which assumes significance over here, is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co- ordination among them.

An analysis into these three organs and the relations between them is to be done with the experience in different countries along with India, which will give a clear idea about this doctrine, and its importance in different Constitutions.

Today all the systems might not be opting for the strict separation of powers because that is undesirable and impracticable but implications of this concept can be seen in almost all the countries in its diluted form.

It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the government, namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the government.

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 separation of judiciary from the executive. The law was still hanging for a simple gazette notification. As regards independence and separation of judiciary, our constitution of 1972 is fairly developed. But the framers of Supreme Law of the land made an unfortunate insertion in article 115 and 116 as ‘Magistrates exercising judicial functions’, which still. Remain unattended. Art 22 in unequivocal term states that ‘the state shall ensure the separation of the judiciary from the executive organs of the state’ as one of the fundamental principles of state policy. It is not readily judicially enforceable. Nevertheless the state cannot ignore it for long. There was under current of demand of implementation of constitutional obligation from the very inception of Bangladesh. But the Fourth Amendment undermined the constitutionalism itself, which obviously destroyed the independence of judiciary. The subsequent upheavals of politics rather by passed it. In 1976

law commission recommended that subordinate judiciary on the criminal side should be separated from the executive.

In the mean time, we witnessed two extra-constitutional processes. In 1987, initiatives were taken to separate the magistracy by amending code of Criminal Procedure, 1898. For unknown reason the Bill could not placed before the Parliament. After the fall of autocratic rule in 1990, exception was high to ensure separation of judiciary. But the next two governments of 1991 & 1996 did nothing in this regard except spoiling its tenure. In 1999, the Supreme Court issued 12-point directives in 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 their quest of AL and BNP two major parties of the country. The BNP leaded coalition government is working very slowly towards separation of judiciary. It is a pleasure that Judicial Service Commission and Judicial Pay Commission have been created various rules and amendment in the relevant sections of code of Criminal Procedures 1898 are under consideration of parliament of late the law. Just and Parliamentary Affairs Minister announced that it would take additional six years (!) to ensure separation of judiciary the Daily Star 20.6.2004 this statement is reflective of how indifferent the Government is about separation of judiciary. The demand separation of the judiciary from the executive is universal to ensure the independence of judiciary and safeguard the rights of the people. It is quite unfortunate that the Government is moving towards at shail’s pace.

Judiciary fromthe executive at all levels in 1973 and 1974 (in West Bengal in 1970) respectively. Ensuring justice and independence of judiciary will remain a far very until lower judiciary is separated from the executive. It is mandatory and constitutional obligation of the Government to ensure separation of the judiciary from the executive. Five years have been clasped since the Supreme Court gives it directives in Masdar Hossain case. Law Minister is seeking for additional six years in this regard we can fairly questions how long will it take to ensure separation of judiciary from the executive?We may mention here some draft procedure to separation of judiciary by the government at a glance:

1. The formation of Bangladesh Judicial Service, establishment of pay commission, appointment in service and the procedures of temporary dismiss and remove, 2001.

2. Bangladesh judicial service (ascertainment of field of service, giving promotion, system of control and discipline including grant of vacation and the term of service) procedures, 2001.

3. Judicial Service Commission Procedures, 2001.

4. The Code of Criminal Procedures, 1898 (Amendment) Ordinance, 2001

Chapter-03

The problems and obstruction of separation of judiciary from the executive of BangladeshThe question of separation of the judiciary from the executive organ of the state is not new for our judicial system. So far many erudite articles written by highly intellectual persons of

the relevant fields were published in the leading newspapers of our country. But those intellectual exercises have gone unheeded so far. There were of course commitments of the political parties every time before the elections were held (Rahman, 2004). We must seek the reasons why this very important organ of the state has so far not been given the shape as enunciated in the sacred constitution where the nation has solemnly affirmed for an independent judicial system. I have point out here some common problems.

Lack of conciousnessOf the total people constituting the electorate of our country, I am sure more than 10% voters do not know what actually is mean by the separation of the judiciary and for that matter what is the bright side of the proposed separated judicial system. To address these questions we should have at least an average knowledge of our present judicial system. Lack of consciousness people’s has no strong movement for this reasonable and demandful wants.

Lack of political willAny kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. And Government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate the judiciary from the executive it would be impossible. Though most of the political parties have commitment to separation of judiciary but after formation of government they technically avoid the matters. That’s why the process of separation of judiciary is going on endlessly.

Lack of interaction with other courtslack of interaction of the judges in Bangladesh with their counterparts in other countries is a possible factor for their insular understanding of law. Of course, the courts’ scarce resources limit the opportunities for such interaction. And, the very limited judicial interaction with foreign courts, when it does occur is arranged in hierarchical order. This means that older judges, who are usually less amenable to fresh ideas and have less time left on the bench, undertake such interactions most often, receiving the most limited results possible.

Lack of strong civil societyCivil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.

Lack of democratic cultureWe have reached upon 34th years of our independence from the dictatorial and autocratic rule of Pakistan. In 1991 we claim to have set up a democratic government. But we have so far made little progress in practicing parliamentary culture. Our leadership instead of guiding the nation toward setting up a strong parliamentary democracy has so long been engaged in the politics of mutual hatred and vengeance. Tolerance and respect for opposition party is now foreign in our politics. Such intolerance and enmity between political parties have adversely affected the nation as a whole and virtually has divided the nation into some group antagonistic to each other. This inimical attitude of our political parties has not only polluted the politics of our nation but has created groupings among public servants in general and bureaucrats in particular. Of late the highest judiciary has reportedly been politicized.

Executive dominated judiciary

Article 115 of the constitution: Appointments of persons in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf. It is noticeable in this article that the President with exercising this power is not required to consult the Chief Justice of Bangladesh. We know that the President cannot exercise his powers whatever, without the advice of the Prime Minister, accept of course his power to appoint the Prime Minister. This is how the executive organ of our state is controlling the judiciary. Their appointments, postings, transfers, promotions, punishments etc. are at the hands of the President or for that matter, the government.

Lack of popular access to justiceUnlike neighboring India, where legal aid, access to justice and alternative dispute resolution were largely judge-pioneered initiatives, the situation is completely different in Bangladesh. The very wide powers of the highest court to deliver justice have been under-utilized. Less than a dozen-suo moto case during the last ten years has succeeded, perhaps reflecting judicial conservatism.

Overleaping competencies Often, executive branch ministries to work as their legal officers recruit judges from the subordinate judiciary. Generally ministries do not have legal officers of their own, and the public prosecution service is an adhoc arrangement. Arguably, judicial independence is compromised when a person acts as both a prosecutor and a judge. Law officers have to defend government positions while judges might rule against the government. A directive of the Masdar Hossain Judgment calls for the roles of judges and prosecutor to be separated. Unfortunately, so far this directive has not been carried out.

Corrupted law makersThe air of separation of judiciary is entering; side by side it has also bad smell. Maximum judges and lawmakers are corrupted. The takes bribe spontaneously and make the case diverted. It is a very common phenomenon in our country. So if the independent judiciary is vested upon the dishonest lawmakers, there must be disorders in law and order situation of Bangladesh. Recently Transparency International of Bangladesh (TIB) exposed the corruption of the lawmakers.

Government negligenceThe High Court Division of the Supreme Court of Bangladesh in a judgment directed the government to take steps for separation of judiciary from the executive organ quite a few years back. But the government has so long remained headless and negligent to the High Court Division’s directives. When the government itself does not honor the highest court of the country, how can the people in general confide in the judicial system and such underhand practice?

However, the government has sought, and the Appellate Division has granted, a number of extensions in time (25 times) for the implementation of the Supreme Court’s directives. Formally land officially the government is committed to implementing these directives, which would also include some changes in the criminal procedural laws. However these repeated extensions suggest continuing challenges to the ultimate implementation of University of Rajshahi, Rajshahi the directives. It is strongly felt everywhere that immediate steps are taken for separation of the judiciary from the executive organs of the state.

Chapter-04

Masder Hossain case and a brief history of the separation of judiciary in Bangladesh

British periodDuring the British rule there was a demand for separation of judiciary form the executive. The British administration did not make this separation thinking that separation might go against their colonial interest. In 1919 the matter of separation of judiciary was raised in the House of Commons but it was not discussed on the contention that it was a matter within the jurisdiction of provincial government. In 1921 a resolution regarding separation of judiciary was passed in the Bengal Legislative Assembly which was followed by formation of a committee. The committee reported that there was no practical problem in separation. However, nothing more was done.

Pakistan periodAFTER separation and interdependence in 1947 no step was taken in East Pakistan. The United Front includes the idea of separation in its 21 points formula in 1954. The firs6t Constitution in independent Pakistan was adopted in 1956. Unlike the Government of India Act 1935 (Ss 253, 254, 255 & 156) and the Constitution of India (Art 233 to 237 in chapter vı) this Pakistan Constitution of 1956 did not provide for any provision regarding “subordinate courts” or “magistracy”; these were to be regulating by the code of the CPC & the CrPC. In 1957 the East Pakistan Provincial Assembly passed the CrPC (East Pakistan Amendment) Act 1957 (No. 36) which dealt with separation. However, this Act was never given effective. In 1958 the Pakistan Law Commission recommended to bring the judicial magistrates under the control of The High Court. In 1967 the Law Commission again recommended to give effect to the CrPC Act 1957 (No. 36) though nothing was done until 1972. In the CrPC (East Pakistan Amendment) Act 1957 (Act No .36 of 1957) an overhauling amendment was made in the CrPC with a view to separating the judicial and executive functions of the magistrate. A full discussion of that amendment is beyond the scope of this work.

Bangladesh periodIn 1972 after independence of Bangladesh the Constitution of the People’s Republic of Bangladesh was adopted. Provision was made in Art 22 in the Fundamental Principle of State Policy that the state shall ensure the separation of the judiciary from the executive organ of the state. In 1976 a Law Committee headed by Justice Kemaluddin reported to implement separation of lower judiciary in three stage which as follows:

First StageThe government may by notification appoint some particular Magistrate at each station exclusively for judicial work. This can be given effect without any additional expenses or administrative difficulties.

Second StageThis should be the nature of separation of judicial function form executive as envisaged in the CrPC (East Pakistan Amendment) Act 1957 (Act No. 36).

Final Stage

The final stage would be not only complete separation of judicial function form executive but also constitution of a separate integrated judicial service under the control of the High Court Division for Civil and Criminal work right up to the level of the District & session judge. The committee also recommended that for creation of an integrated judicial service. , it would be necessary to enact new legalization. In 1987 by an amendment to the CrPC President Ershad prepared a bill for separation of judiciary. However, the bill did not see the light of the day. In Pakistan separation was done in 1973 and India in 1974 by an amendment to the CrPC in 1990 the issue of separation of judiciary was put into the manifesto of the Three- Party Alliance movement against Ershad regime. In every election after 1990 both the BNP and AL had avowed commitment UN their manifesto that going to power they would separate judiciary form the executive.

In 1991 a private member’s Bill by Mr. Salauddin Yusuf namely the Constitution (14th

amendment) Bill 1991 was introduced for further amendment of Art 95, 98, ii5and 116 of the Constitution. The Bill was sent to a select committee which had about 13 meeting to consider it. The Bill tried to reinstate the provision of the 1972 original Constitution envisaged by the constitution makers. The revised bill was submitted in parliament in 1994. The comparison of the original bill and the revised bill reveals that “the BNP has come out as the champion for the 4th amendment of the Constitution though it is the BNP which never misses any opportunity to condemn AL for the 4th amendment of the Constitution; however, nothing was done to pass the Bill. The Bill, however, did not deal with anything about the separation of subordinate judiciary. The government side did not accept any proposal for amendment of Art 115 & 116 of the constitution. ‘By not agreeing to restore the original provisions of Art 115 & 116 the government has unmistakably demonstrated that they are opposed to the separation of subordinate judiciary from the executive. Shekh Hasina as the Prime Minister in the 7th parliament kept echoing her commitment that she would do all for separation of judiciary. A committee was formed headed by the secretary of Law and Parliamentary Affairs Motin Khasru, the Law Minister stated t5hat a bill for separation of judiciary from the executive was under way but nothing more was done.

Masder Hossain's caseIt has been more than five years since the historic judgment in Masder Hossain's case, popularly known as 'separation of judiciary' was pronounced in December 2, 1999 by the Appellate Division of the Supreme Court. The Court directed the Government to implement its 12-point directives to separate judiciary from the clutches of the executive. In this long period three governments- respectively have sought extensions of times on one pretext or other as many as 18 times to implement the directives. Back in November 2004 the Government sought for four months time, which was allowed by the Court. However, on November 29, 2004 the Appellate Division had to issue a show cause notice to nine Government officials to explain why they would not be prosecuted for contempt of court for distorting the judgment of the court and the rules approved by the court for separation of judiciary. On 16th April, 2005 the matter came up once again for the court to see the progress of the government with regard to the implementation and to hear the contempt of those nine officials. The Government asked for another four months extension. However, the court extended time again till 17th October. But the question is how long will this tactics of time extension continue? How long will be a judgment of the Supreme Court matter of pull and haul at the hand of government? Apart from this delaying tactics, in very recent past a statement from governmental level pointed out that the separation of judiciary was not a popular demand and the government may go for a referendum on this issue. When such a

statement is posed from the Governmental level the legitimacy of the judgment of the apex court itself comes under attack. What could be the reason behind such delaying tactics and policy statement?

The reason lies, as I wrote back in 1998, with some provisions in the original constitution of Bangladesh regarding the dependency syndrome of the subordinate judiciary which has left the idea of separation of judiciary largely a policy matter rather than judicial determination. Under the express wording in article 112 of the constitution all authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court. But when the Government states that separation of judiciary is largely a policy matter; again it reiterates that it will implement the judgment today or tomorrow what can the apex court do? How long the arms of the apex court could go to catch the wrongdoer or someone who is not obeying the judgment of the court or undergoing delaying tactics? True it is that the Supreme Court of a country cannot modify the course of history; neither can it catch hold of and throttle someone who is disobeying its decision; it can only pronounce judgments and refer to the other departments of the government to execute it; if the executive disobeys its decision, it can at best contempt someone but it does lack any real stick to beat the executive. The machineries of democracy are not supposed to run in that hostile manner; they are built on the concept of check and

balance and this balance is provided for in article 112 of the constitution as far as the implementation of the Supreme Court's decision is concerned which the executive must bear in mind. If the executive flouts the decision of the apex court so will do the beneficiaries of political parties leading the country into a land of politico-legal anarchy. The judgment in Masder Hossain case by the Supreme Court to direct the government to separate judiciary is not something like a bolt from the blue. Since independence almost every mainstream political party made pre-election pledge that if voted to power, they would separate judiciary from the executive but every government has betrayed with their pledge to this effect. It is pledged in article 22 of the constitution that State shall ensure the separation of the judiciary from the executive. Every Prime Minister and Minister takes their oath of office that they will preserve, protect and defend the constitution though the irony is that they quickly forget their pledge leaving behind the poor litigants in an endless suffering. How long will the people have to wait see the judiciary separate? In line with the spirit in the part of the 'Directive Principles' of the constitution both India and Pakistan have completed the task of separation of the judiciary long ago compared to us. 33 years have passed since we achieved our independence. If we still vaunt in a colonial mastery to ourselves- "what will the court do if we do not separate the judiciary?", will there be any merciful mystery angel to complete the task for us?Lower judiciary: An acute dependency syndrome in Magistrates' CourtsLet me get back to the concept of dependency syndrome of the subordinate judiciary particularly the magistrates' courts, which is the main problem in ensuring independence and separation of the lower judiciary.

Three tiers of Magistrates' Courts, i.e. 3rd Class, 2nd Class and 1st Class Magistrates' Courts- all these are the courts of first instance for criminal cases. Given that criminal cases filed in a year are far greater in number compared to the number of civil cases, these criminal courts have a great potential in shaping the base of our legal system. However, unfortunately for reasons, principally, of some legal shortcomings these courts are playing negative role at a

greater extent frustrating the very purpose of criminal justice. The shortcomings are as follows:

i. All magistrates are linked with the executive functionaries. Magistrates are discharging dual functions- judicial and executive. They are controlled by the Ministry of Establishment, the Ministry of Home Affairs and also the Ministry of Law, Justice and Parliamentary Affairs. In discharging their judicial functions they are very often dictated and influenced by the executive. As a result, they cannot independently discharge their judicial functions. It is impossible for a judge to take a wholly independent view of the case he is trying, if he feels himself to any extent interested in or responsible for the success of one side or the other. It is equally impossible for him to take an independent view of the case before him if he knows that his posting, promotion and prospects generally depends on his pleasing the executive hand.

ii. Magistrates who discharge judicial functions are never appointed from persons with legal background. It is sometimes impossible to expect justice from a person who has no institutional legal education. Being administrative first class officers magistrates sometimes do not care abusing their power. This is mostly the case because, firstly, they are taking the opportunity of illiteracy and ignorance of law of mass litigants and secondly, there is inherent lack of administrative check and balance in magistracy and thirdly, they are not under any administrative control of the Supreme Court.

iii. In almost all magistrates' courts bribes are now a days openly claimed as a matter of right? Anyone defaulting has to pay a price at his cost. In magistrates' courts bail depends not on law but on the amount of bribes.

The main crux of the problem of separation of judiciary lies in the magistrates' courts. Ensuring justice and independence of judiciary will remain a far cry until magistrates' courts are separated from the executive. The dual function of magistrates and the dependency of the lower judiciary upon the executive is a legacy of the British rule. During the very British days there was a demand for the separation of judiciary from the executive. The British administration did not make this separation thinking that separation might go against their colonial interest. After independence in 1947 though some positive steps were taken, eventually they were not implemented.In our new constitution adopted in 1972 it was provided in article 22 that "the state shall ensure the separation of judiciary from the executive organ". In article 116 the term "magistrates exercising judicial functions" have been used. Dr. Kamal Hossain the chairman of the Constitution drafting committee stated that by the term 'magistrates exercising judicial function' the constitution makers wanted to mean judicial type of magistrates and after the constitution was given effect everybody took this term for judicial type of magistrates but the government did not separate them. Ultimately the matter of judiciary separation came as a judicial determining factor before the Supreme Court in much-talked Masder Hossain case.

FinaleIn the Masder Hossain case as mentioned above the executive has been ordered to undertake the task of overhauling the whole lower judiciary with two big commissions- Judicial Service Commission and Judicial Pay Commission which is certainly a matter of policy rather than a dispute. However, there are strong evidences to show that our Supreme Court has dealt with

policy matter under the paradigm of 'judicial review' or the doctrine of 'basic structure' of the constitution as we saw it in the celebrated 8th Amendment Case and this is not something unsupported by the constitutional arrangement. It is true that except appointing the Prime Minister and the Chief Justice the President has to exercise every function in consultation with the Prime Minister. However, a harmonious construction of articles 114, 115, 116 and 116A of the Constitution will give a necessary idea that in the matter of subordinate judiciary the policy matter has not been left to the sweet will of the parliament or the president alone; the executive has to exercise its power in consultation with the Supreme Court in this sphere. Under article 115 appointments in the subordinate judiciary are to be made as per rules made by the President; article 116 envisages that control and discipline of the subordinate judiciary have to be exercised in consultation with the Supreme Court; and article 116A envisages the independence of the judicial officials and magistrates. Given this integrated scheme as designated in these articles if the parliament or the President attempts to make law to separate judiciary without involvement of the Supreme Court, which law will certainly come under judicial attack? The task of separation of lower judiciary is thus a shared responsibility of the executive, legislative and judiciary as envisaged in articles 114 - 116A of the constitution and therefore the government cannot claim it as a sole executive or legislative policy prerogative. The best course for the government therefore would be to implement the judgment of the Masder Hossain case without resorting to any delaying tactics on the ground of policy matter or public demand.

Chapter: 05

Supreme Court order on judiciary separation Feb.19 2007The Supreme Court will pass its order on the separation of the judiciary from the executive on February 19 after examining the Code of Criminal Procedure (Amendment) Ordinance, which was promulgated on February 11. The attorney general, Fido M Kamal, on Wednesday placed a copy of the ordinance before the full court of the Appellate Division. After a four-minute hearing, the chief justice, Syed JR Makassar Husain, said the next order would be passed on February 19 upon scrutiny of the ordinance. The court also adjourned till February 19 the hearing of the contempt- of-court proceedings against 13 bureaucrats, including four top-ranking officials, for procrastination in the implementation of the 12-point directive and for distorting the court's orders on the separation of the judiciary. The petitioner's counsel, M Amoral Islam, submitted an application to the court, saying the sets of rules framed by the government on judicial service and the ordinance still had some deviations from the 12-point directive and they should be corrected. The interim government promulgated the Code of Criminal Procedure (Amendment) Ordinance on February, making provisions for separate judicial and executive magistracy. Earlier on January 16, the government framed four sets of rules on judicial service, taking the penultimate step for the separation of thejudiciary. The ordinance and the four sets of rules will, however, come into effect on the date the Appellate Division fixes. The Appellate Division on December 2, 1999 issued the 12-point directive, which will eventually separate the judiciary from the executive, in its verdict on the government's appeal in Masder Hossain's case, popularly known as 'separation of the judiciary case.

Independence of judiciary a dreams comes trueThe basic principles of the independence of the judiciary was endorsed by UN General Assembly in 1985 and referred by the UN Office of the High Commissioner for Human Rights as -- “The judiciary shall decide matters before them impartially on the basis of the

facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason”. Separation of judiciary from the executive is the precondition for sound and independent judiciary. Judiciary redresses the grievances of the people and resolves disputes. The International Covenant on Civil and Political Rights (ICCPR), 1966 was also mentioned in Article 14(1) “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.

The judiciary has been defined as the last resort of the common people. It is the sector that actually protects and harmonizes the varying interest of the members of the society. The judiciary has been the major recourse of the human rights community in the enforcement of human rights. Litigation has been identified as one of the key means of protecting and enforcing the rights of the individual. No other institution of the state is bestowed with the duty but the courts and other ancillary institutions. Most of the monumental achievements of the human rights community the world ever have been through the courts. The judiciary comprises of all institutions established there under for the administration of justice to protect, vindicate and enforce the rights of the people. The judiciary is charged with the responsibility of dispensing justice and safeguarding the rule of law. In any civilized society, judiciary is the last resort for the people to seek shelter and get relief against the offenders and wrong doers.

Independence of judiciary means a fair and neutral judicial system which can afford to take its decision without any interference of executive or legislative organ of the government. Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from the executive or legislative or from the parties themselves or from the superiors and colleagues. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges.

The concept of separation of judiciary from the executive refers to a situation in which the judicial branch of the government acts as its own body free from intervention and influence from the other branches of the government particularly the executive. Principle of separation of powers is one of the vital elements of democracy. If the same individual assumes the functions of both executive and judiciary the necessary check and balance disappears and rights of the citizen are not adequately protected. Separation of judiciary from the executiveuniversally ensures the independence of judiciary and safeguards the rights of the people. It is impossible to ensure the rule of law, upon which other human rights depend, without providing independent courts and tribunals to resolve disputes independently. The complete independence of judiciary is the first major step in the process of its development. Without completing this, progress of work in other areas is not likely to deliver the intended full benefits.

While the Westminster system had largely developed because of the doctrine of separation of powers, our present system of government is largely based on the Westminster. This doctrine of separation of powers proposes that the three institutions of government, the legislature, the executive and the judiciary should be exercised as separate and independent branches. It is this doctrine that stresses the need for the independence of the judiciary from the other two

government institutions in order to protect the freedom of individuals. It is under this doctrine that no person can be a member of parliament and a judge at the same time. The doctrine of separation of powers offers several advantages: it proposes separate, specialized andefficient branches of government and it also reduces the abuse of government power by dividing it.

The constitution is the supreme law of the country and for Bangladesh, the form of government has been spelled out in the constitution that it will be a Republic. The constitution lays down specific functions of different organs of the government. The judicial system in Bangladesh has been a legacy of the judicial system as introduced by the British during the colonial days. The parliament is supreme and the lawmakers alone bring about any change by amending the constitution as and when necessary. The Supreme Court has been authorized to interpret the provision of the constitution as and when required. Judiciary helps the government to carry out one of the functions of the state and in doing so it should be able to function independently with no interference from any quarter or under any influence of fear or favor (Article 116A of the Constitution of Bangladesh).

The question of separation of judiciary from executive is not new in our country. In fact, demand for separation of judiciary from executive had been a part of the movement for democracy itself and its implementation was part of the election pledges of both the major political parties. With same origin like us, both Pakistan and India separated their judiciary from the executive in 1973 and 1974, respectively. We earned our independence in 1971. But we have set up our democracy in 1991, after 20 years of independence. So far we could do little progress as far as the implementation of separation of judiciary is concerned. Article 22 of our constitution says, “The state shall ensure the separation of the Judiciary from the Executive organ of the state”. Separation of judiciary is included in Part II of our Constitution, i.e. the fundamental principles of the state policy; and Part V of the Constitution deals with the judiciary.

But unfortunately no government since 1972 when the constitution was framed ever took steps to effect the separation. Finally in 1999 while delivering historic judgment in the famous 'Masder Hossain's case', popularly known as 'separation of judiciary' the Appellate Division of Supreme Court asked the government to take steps for separation as per Article 22 of the Constitution. The Appellate Division also gave 12 points directive or road map on how the separation should be given effect to. The Caretaker Government (CG) of 2001 took all measures to ensure the separation of judiciary, but stopped at the request of both the major political parties, who expressed their desire to implement once came to power. But unfortunately, it is not ensured by the winning party within their full tenure. It has been more than six years since the judgment was pronounced, but in this long period three consecutive governments respectively have only sought 22 extensions of time.

A full bench of the Appellate Division of the Supreme Court on January 10, 2007 ordered the present CG to publish various rules on separation of the judiciary through gazette notification within a week and remove major hurdles for the separation. The four rules are Judicial Service Commission Rule 2002, Bangladesh Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service (Service Constitution, Composition, Recruitment Suspension, Dismissal and Removal) Rules 2002 and Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2001. The government has

been given as many as 22 deadlines to implement the 12-point directives of the Supreme Court on the matter, beginning from 1999.

Finally the present CG in a landmark move on January 16, 2007 published the gazette notifications of four rules relevant to separating the judiciary from the executive. The Chief Adviser of the CG and finally the President of the Republic have also endorsed their consent to the documents of those rules. The whole process was done in a hasty move with the Supreme Court deadline of publishing the gazette notifications.

The much expected separation of the judiciary now requires only an amendment of CrPC as per 12-point directives of the Supreme Court given in 1999. With the implementation of those rules, the magistrates working under the executive branch of the government will come under the authority of the Supreme Court, and the lower court will also be free of government control.

Now, it is expected that the complete separation will take place during the present CG by implementing the amended the CrPC in order to fulfill the expectation of the people.

Caretaker government completes processThe long-awaited separation of the judiciary from the executive now only requires declaration of an ordinance on necessary amendments to the Criminal Procedure Code (CrPC), the gazette notification of which is currently being printed.If the ordinance were put into effect, the judiciary would be separated from the executive and the magistrates, who are currently under the control of the executive, will then come under the authority of the higher court and be known as judicial magistrates. When contacted for comments on the promulgation of the ordinance, Law Secretary Alauddin Sarder, however, was not willing to make any.

Additional Attorney-General Abdur Rezzak Khan confirmed that, the president has already given his consent to promulgate the ordinance. The gazette notification is currently being published.

Rezzak said, “We cannot say yet the ordinance has been promulgated since it is still in the press for being printed. But as soon as the gazette notification is printed and published, the ordinance will be in effect.”

All actions related to the separation of the judiciary will be then taken under the amendment.The CrPC amendment is generally passed through a bill placed before parliament. But since there is no parliament now, the president has had to amend the CrPC through an ordinance.

According to the constitution, an ordinance will have to be laid before parliament at its first meeting following the promulgation of the ordinance.

Meanwhile, the government published a gazette notification of four rules relevant to the separation of the judiciary.

The rules are Judicial Service Commission Rule 2002, Bangladesh Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service (Service Constitution, Composition, Recruitment, Suspension, Dismissal and Removal) Rules 2002, and Bangladesh Judicial

Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2001. The gazette notification for Bangladesh Judicial Service Pay Commission Rule 2002 was placed before the court during yesterday’s hearing of the judiciary separation case at the Appellate Division of the Supreme Court.

Attorney General (AG) AJ Mohammad Ali told the court that the three other rules are being printed in the press for publication and that he will receive them soon.

When asked by the court about the CrPC amendment, the AG sought for another 10 days for the task, but the court did not respond to his request.

The seven-member full bench of the Appellate Division headed by Chief Justice JR Syed Mudassir Hosain directed the AG to place the gazette notifications of the rules by next Sunday through an affidavit.

The bench also asked him to inform the court of the progress on the CrPC amendment.Counsel for the judiciary separation case Barrister Amir-Ul Islam, who was present in the court, later, told reporters, “We will come to know how much deviation has taken place from the Supreme Court guidelines once all the four rules and the CrPC amendment are placed before the court.”

Nine bureaucrats who have been facing contempt charges for distorting the SC directives also appeared before the court. The SC directed them to appear before the court at the next hearing on Sunday.

The caretaker government, taking the final legislative step towards separation of the judiciary from the executive, promulgated the Code of Criminal Procedures (Amendment) Ordinance on Sunday, making provisions for separate judicial and executive magistracy. The draft bill of the ordinance, approved by the council of advisers on Feb 12-2007, was sent to Bangabhaban last evening for the final consent of the president for the promulgation. According to sources in the law ministry, concerned officials of the ministry were kept standing by at Bangabahaban, and after the presidential approval they sent the ordinance to the BG press, the official printing press of the government, for publication. The sources, however, could not confirm whether it would be possible for them to submit the printed copy of the ordinance to the Appellate Division of the Supreme Court this morning, when the court resumes the hearing of the proceedings of the contempt cases against 13 bureaucrats, including four top-ranking officials, for procrastination in the implementation of the 12-point directive and for distorting the court’s orders on separation of the judiciary from the executive. The court on February 2 ordered the caretaker government to submit the amended CrPC to the court by February 12. The ordinance will, however, come into effect on the date when the rules will be made effective. The rules will be made effective by a gazette notification on a date fixed by the Supreme Court. The enforcement of the ordinance, which proposes 100 amendments to the Code of Criminal Procedure 1898, will strip the executive magistrates, including deputy commissioners, of judicial powers and functions. But it will not make the judiciary completely independent of the executive, as the officers of the administrative service will continue to perform judicial powers and functions under an interim arrangement until a sufficient number of officers are appointed to judicial service. They will, however, be transferred to judicial service on deputation for the interim period.

On completion of the interim period, the executive officers will be allowed to choose either to return to administrative service or stay back.

Once the ordinance makes provisions for establishment of separate judicial and executive magistracy and separate criminal courts — courts of sessions and courts of magistrates — the judiciary will become independent of the executive, and the executive magistrates, including deputy commissioners, will be stripped of judicial powers and functions. The cases pending with the court of the district magistrate or additional district magistrate will be transferred to the court of the sessions judge of the district, and the cases pending with the court of executive magistrate will be transferred to the chief judicial magistrate of the district, says the ordinance.

According to the ordinance, there will be separate judicial and executive magistrates. The officers of the administrative service, who will be appointed as administrative magistrates, will not lose the executive powers and functions they currently have, including the power to command law-enforcers to disperse any unlawful assembly, to endorse a warrant or order for removal of an accused person arrested under warrant, to enable search by postal and telegraph

authorities for documents and to detain them, to issue search warrants, to require security to keep peace or for good behavior, to make orders as to local nuisance, to require security for good behavior in case of sedition, to cancel bonds for keeping the peace and to impose Section 144 of the Code of Criminal Procedure. Earlier, on January 16, the caretaker government framed four sets of rules on judicial service, taking the penultimate step for separation of the judiciary.

Chapter:06

Judiciary separation comes into force from November 1, 2007The judiciary becomes independent of the executive form Nov 1, 2007 with 218 judicial magistrates, 224 courtrooms, 1,043 staff members and four lakh criminal cases pending with the magistrate courts. The chief adviser, Fakhruddin Ahmed, will inaugurate the Dhaka Judicial Magistracy and Dhaka Metropolitan Judicial Magistracy in a ceremony Nov 1 morning at the Bangladesh-China Friendship Conference Centre. The chief justice, M Ruhul Amin, will also address the occasion as special guest. Briefing newsmen at his office on Wednesday, the Supreme Court registrar, Ikteder Ahmed, said 218 magistrates — 202 from the judiciary and 16 from the administrative cadre service who opted in to judicial service — would start running the judicial magistracy. ‘Everything is set. Courtrooms, manpower and other logistic supports are in place,’ he said. Six hundred and fifty-five posts of judicial magistrates have been created to meet the demands of the courts in districts.

The remaining 453 magistrates will be recruited in three months by the Judicial Service Commission, said Ikteder. Once the judicial magistracy starts functioning, 218 judicial magistrates will need to deal with more than four lakh criminal cases, now pending with the courts run by 635 magistrates across the country. According to the report submitted by the government to the Appellate Division of the Supreme Court, 4, 84,832 cases, as of February 28, were pending with the courts of magistrates across the country and at least 890 magistrates were required to deal with them. The judiciary becomes separate from the executive following the 12-point directive issued by the Appellate Division on December 2,

1999 in its landmark judgment in the government appeal against the High Court verdict in Masdar Hossain’s case, popularly known as the separation of judiciary case. The court also ordered the government to report back on the compliance of the directives by May 31, 2000. All the subsequent governments took repeated extensions of the time limit to implement the directives, which are being implemented today. The Awami League government, however, implemented only one of the directives giving financial independence to the Supreme Court in 2001.

The caretaker government in 2001 prepared sets of draft rules on judicial service and a draft ordinance to amend the Code of Criminal Procedure to implement the directives. The legal instruments were, however, kept pending by the caretaker government at the request of then prime minister elect Khaleda Zia. The BNP-led alliance government on January 28, 2004 formed the Judicial Service Commission after framing the Judicial Service Commission Rules. The Supreme Court issued a rule on nine bureaucrats on November 29, 2004 to explain why they would not be punished for contempt of court for distorting its orders on the separation of judiciary. It also issued a rule on four top secretaries, including then principal secretary Kamal Uddin Siddiqui, on April 3, 2006 to explain why they would not be prosecuted for contempt of court for their procrastination in implementing the directive. In the face of the contempt rule, the BNP government framed the Judicial Service (Pay Commission) Rules on May 28, 2006, and two se ats of rules on judicial service on June12, 2006.The court on January 10, 2007 declared the rules and the draft bill for the amendment to the Code of Criminal Procedure contrary to its directives and ordered the government to make fresh rules and ordinance the amendment to the code. The interim government accordingly framed fresh rules on January 16 and promulgated the CrPC (Amendment) Ordinance on February13.

The full court meeting of the Supreme Court, attended by all the Supreme Court judges chaired by the chief justice, M Ruhul Amin, on September 27 decided that the Code of Criminal Procedure (Amendment) Ordinance, which amended the Code of Criminal Procedure on February 11 in accordance with the directives of the Supreme Court, will come into effect on November 1, 2007. The rules were given effect in keeping with the Supreme Court advice. The full- court reference (meeting) of the Supreme Court of May 10 decided to put in force the two sets of rules on the judicial service on July 1. Once the amended Code of Criminal Procedure comes into effect, the judicial service, including judicial magistracy, will come under the direct supervision and control of the Supreme Court. The president will need to exercise his duties regarding the appointment, posting, control and discipline of the service in consultation with the Supreme Court. According to the rules, from now on, the president will need to exercise his powers regarding appointment, promotion, posting and control and supervision of the judicial service, including judicial magistracy, in consultation with the Supreme Court. In the case of any difference of opinion between the president and the Supreme Court, the Supreme Court’s opinion will prevail, the rules said. According to the rules and the amended Code of Criminal Procedure, the country will have from Nov 1,2007 two sets of magistrates — judicial and executive — to deal with different functions .The country will also have separate criminal courts — courts of sessions and of magistrates — and all of them will be run by judicial officers.

The 12 point directiveThe lower judiciary comes under the Supreme Court as the judiciary becomes independent of the executive today as a result of the 12-point directive of the Supreme Court. The Appellate

Division of the Supreme Court on December 2, 1999 detailed the directives for the separation of the judiciary in its judgment in the government appeal against the High Court.

Verdict in the Masdar Hossain case:Masdar Hossain and 217 other judges of the lower judiciary filed a writ petition on November 19, 1995 seeking redress of their financial discrimination in relation to other services of the government. The case came to be known as the separation of the judiciary case as the High Court on May 7, 1997 delivered the verdict in the case directing the government to separate the judicial services from other services of the republic. The finance ministry preferred an appeal against the verdict and the Appellate Division on December 2 finally pronounced its judgment detailing the 12-point directive.

The directives are:It is declared that the judicial service is a service of the republic within the meaning of Article 152(1) of the constitution, but it is a functionally and structurally distinct and separate service from the civil executive and administrative services of the republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.The word “appointments” in Article 115 means that it is the president who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that behalf, make rules regulating their suspension and dismissal but Article 115 does not contain any rule-making authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the constitution and the Services (Reorganization and Conditions) Act, 1975 have no application to the above matters in respect of the judicial service and magistrates exercising judicial functions. The creation of BCS (judicial) cadre along with other BCS executive and administrative cadres by Bangladesh Civil Service (Reorganization) Order, 1980 with amendment of 1986 is ultra vires of the constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service. The appellant and the other respondents (government) to the writ petition are directed that necessary steps be taken forthwith for the president to make rules under Article 115 to implement its provisions, which is a constitutional mandate and not a mere enabling power. It is directed that the nomenclature of the judicial service shall follow the language of the constitution and shall be designated as the judicial service of Bangladesh or Bangladesh judicial service. They are further directed that either by legislation or by framing rules under Article 115 or by executive order having the force of rules a Judicial Services Commission be established forthwith with majority of members from the senior judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service on merit with the objective of achieving equality between men and women in the recruitment. It is directed that under Article 133 law or rules or executive orders having the force of rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), pay, allowances, pension (as a matter of right, not favor) and other terms and conditions of service, consistent with Articles 116 and 116A, as interpreted by us, be enacted or framed or made separately for the judicial service and magistrates exercising judicial functions keeping in view the constitutional status of the said service. The impugned orders in the writ petition dated 28.2.94 and 2.11.95 are declared to be ultra vires of the constitution for the reasons stated in the judgment. The appellant and the other respondents to the writ petition are directed to establish a separate Judicial Pay Commission forthwith as a part of the rules to be framed under Article 115 to review the pay, allowances and other privileges of the judicial service

which shall convene at stated intervals to keep the process of review a continued one. The pay etc, of the judicial service shall follow the recommendations of the commission. In exercising control and discipline of persons employed in the judicial service and magistrate exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the executive. The essential conditions of judicial independence in Article 116A, elaborated in the judgment, namely, (1) security of tenure, (2) security of salary and other benefits and pension and (3) institutional independence from the parliament and the executive shall be secured in the law or rules made under Article 133 or in the executive orders having the force of rules.

The executive government shall not require the Supreme Court of Bangladesh to seek their approval to incur any expenditure or any item from the funds allocated to the Supreme Court in the annual budgets, provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment. Necessary administrative instructions and financial delegations to ensure compliance with this direction shall be issued by the government to all concerned including the appellant and other respondents to the writ petition by 31.5.2000. The members of the judicial service are within the jurisdiction of the administrative tribunal. The declaration of the High Court division to the opposite effect is set aside. The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further constitutional amendment is necessary is set aside. If the parliament so wishes it can amend the constitution to make the separation more meaningful, pronounced, effective and complete. Until the Judicial Pay Commission gives its first recommendation the salary of judges in the judicial service will continue to be governed by status gulp ante as on 8.1.94 vide paragraph 3 of the order of the same date and also by the further directions of the High Court division in respect of assistant judges and senior assistant judges. If pay increases are affected in respect of other services of the republic before the Judicial Pay Commission gives its first recommendation the members of the Judicial Pay Commission will get increases in pay etc commensurate with their special status in the constitution and in conformity with the pay etc that they are presently receiving.

Chapter-0 RULES UNDER CrPCAccording to the Supreme Court judgment, the separation of judiciary will be completed when all the four rules and amended CrPC come into effect. However, the judiciary’s full independence requires amending Article 116 of the constitution,” the SC source said, adding that the amendment can only be brought in the National Parliament.

After all the rules are made effective, only the amended CrPC (Criminal Procedure Code) will have to be accepted for the completion of judiciary separation in accordance with the SC 12-point directives, he added.

The government published the four rules regarding judiciary separation in January and later made some corrections to them in accordance with SC advice.

The rules are Judicial Service Commission Rule 2002, Bangladesh Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service (Service Constitution, Composition, Recruitment, Suspension, Dismissal and Removal) Rules 2002, and Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Condition) Rules 2001. The last two rules will be made effective from July 1.

Although the gazette notification of the two rules was published earlier, it said, “This rules will be effective through government gazette notification when the Supreme Court would suggest the time to make it effective.”

The SC source said although the ordinance amending the CrPC has already been promulgated through a gazette notification, it will also come into effect later following completion of necessary process.

Meanwhile, the SC on Monday directed the government to complete the process for the implementation of separation of judiciary from the executive and inform the court of its execution by July 19.

In its three-point direction, the SC asked the government for the creation of and sanction for a certain number of courts for magistrates across the country along with manpower and logistic support, allotment of courtrooms and chambers for judges, and necessary budgetary allocations.

Chapter:07PRESENT STRUCTURE OF THE JUDICIARYAt 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 function of the two are distinct, and separate appointments of judjes are made to each. The chief Justice of the Supreme Court sits in the appellate division and is the chief justice of Bangladesh; There is no separate justice of the High court Division. The President, sometimes- in consultation with the chief Juatice appoints the judges of the Supreme Court. While some Chief Justice in the past have insisted on being consulted on these appointments, others were not so exciting, leading to “Political” appointments by the party in power. The lower judiciary in Bangladesh also consists of two parts: first, there are District courts and Session courts, with 10-30 judjes sitting in each of the countrys 61 districts. Then there are also the courts of Magistrates, The judges of the District courts are under the jurisdiction of thr Supreme court and belong to the Bangladesh civil service, while judjes in the courts of Magistrates are member of the countrys, administrative cadre, which is responsible for the general administration of its territories. Magistrates are controlled not by the judicial branch, but by the Ministry of Establishment and by the government. Magistrate judjes are typically transferred to their magisterial posts for 3-10 years during the course of their employment with their government, there after reverted back to their old administrative positions. There are four different types of Magistrates: magistrate of the first class, second class, third class and honoray magistrates. Responsible for 80 percent of criminal cases, it is the magistrates who usually decide if the accused is to be granted bail or prosecuted and typically have the power jail and individual for up to seven years. The most notable executive interferences in the lower judiciary come through the appointment of judges and more importantly executive control over the magistrates, these bonds between the executive and the judiciary are an important constitutional discrepancy that results in the deterioration of the concepts of the judicial independence and rule of law.

The subordinate courts and tribunal There are a wide variety of subordinate courts and tribunals. Such courts and tribunals are the creatures of statutes. Their powers, functions and jurisdictions are also determined by the

respective statutes. These are the basis courts in the system of the judiciary of Bangladesh. The subordinate courts in Bangladesh can be divided into two classes, namely, civil courts and criminal courts.

Civil courts: the civil court system is more popularly known as the subordinate judiciary. The civil courts are created under the civil courts act 1887. The Act provides for five tiers of civil courts in a district, which bottom-up as are:

1) Court of the Assistant Judge,2) Court of the senior Assistant Judge,3) Court of the Joint District Judge,4) Court of the Additional district Judge,5) Court of the district Judge.

Criminal courts: The Judges and Magistrates of the criminal court can exercise their power under the Code of criminal Procedure 1898.

1) Court of Session Judge2) Additional Session Judge3) Joint session Judge4) Magistrate court

In Metropolitan area:1) Chief Metropolitan Magistrate (CMM)2) Additional Chief Metropolitan Magistrate(ACMM)3) Metropolitan Magistrate(CM)

In other area:1) Chief Judicial Magistrate (CJM)2) Additional Chief Judicial Magistrate (ACJM)3) Senior Judicial Magistrate.4) Judicial Magistrate: 2nd class Magistrate and 3rd class Magistrate.

Implication The judiciary has separated from the executive but have not get the full power, cause of some lacking. There need too many revolutionary changes in our judiciary system. For various causes like political problems, administration problems the judiciary are not able to perform full power. Mainly the judiciary of Bangladesh are dependfull upon executive. Some jurist have explain that the separation of judiciary is an “eye wash” nothing but Major point is that the appointment of subordinated Judges are in the hand of President with consulted Chief Justice, under sec-115 of our constitution if we see that this provision is contradictory in judicially system because if President give appointment of Judges then he hold the Executive post but he interfere the judiciary, this is an grave contradiction, because after separation of judiciary the chief justice has the full authority to appointed someone this is an chief justice discretionary power.

The discussion above gives a quite clear picture of the judiciary system of Bangladesh and the real scenario of the rule of law. Though there are some positive provisions for ensuring rule of law in Bangladesh constitution, they are being overshadowed by the ill practices of the law makers as well as the law enforcement agencies. Although the constitution provided for 18 fundamental rights for citizens, these remain meaningless vision to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them. So what is needed for the very cause of the principle of democratic rule of law is –

1. To appoint an ombudsman for the sake of transparency and democratic accountability;

2. To make the parliament effective and to let the law making body to do its due business in cooperation with each other government and opposition;

3. To reform the law enforcing agencies and police force to rid them out of corruption and to free from political influence so that they could truly maintain the rule of law;

4. To forge national unity and politics of consensus built around the basic value of the constitution, namely democracy, respect for each other’s human rights, tolerance, communal harmony etc.