The Judiciary is one of the three organs of the state. Other two organs the Legislature and the Executive respectively makes laws and executes those. The Judiciary examines that whether any violation was taken place in making the laws and executing those. The Judiciary plays role as the guardian of the country. It is a resort of getting justice. It ensure justice for the people, who are deprived of rights, and at the same time passed orders to punish the violators, establishing rule of law and strengthening democracy in the country. If the judiciary fails to do so, then the rule of law as well as the democracy will fall into threats. However, the Judiciary was attached with the Executive branch of the state for long after the independence. After 37 years of the independence, on November 1 of 2007, then Caretaker Government (CG) accomplished the great task of separating the Judiciary from the Executive branch. Though the Judiciary was formally separated from the Executive following a judgment of the Supreme Court (SC), but a separate secretariat of the Judiciary was not set up till now. Even, the Law Ministry, a part of the Executive, is still controlling the appointment, posting, transfer and promotion of the judges of the lower courts that is against the independence of the Judiciary. Even, no rule was not made till now for appointing the judges in the High Court Division and the Appellate Division of the Supreme Court though 40 years have already been passed after the 1972 Constitution came in effective and three years after the Judiciary was formally separated, giving the ruling parties an opportunity to politicize the judiciary. As a result, the SC was actually politicized by the ruling parties in various times, hampering justice and threatening the democracy. Corruption is one of the main problems that disrupted justice. Apart from the above problems, shortage of judges in both the lower courts and the higher court led to huge backlog of cases, hampering quick disposal of cases and depriving the litigants of justice. Overall, the judiciary could not play its duty properly. Experts opined that the judiciary became a ‘glasshouse’ that may collapse in any time, if at least the major problems are not solved as soon as possible.
The judiciary especially the Supreme Court is the last resort to get justice. If any violation of law is taken place or anybody is deprived of his/her rights, then the courts responsibility and duty is to ensure justice for all without any discrimination irrespective of the rich and poor. If the judiciary fails to play its duties properly, then rule of law as well as democracy will fall in danger and ultimately country’s sovereignty and existence will be threatened. Unfortunately, this apex court, under which country’s existence is dependent, is now top corrupt service sector in the country, according to a report published in December last year by Transparency International, Bangladesh (TIB).[1] The TIB report revealed that the justice seekers are being harassed and bound to give bribe in getting justice from the court. The people are being harassed and deprived of justice. A total of 3.03 lakh cases are pending with the SC.[2] Former Chief Justice Mahmudul Amin Chowdhury compared the Judiciary (especially the SC) with “glasshouse” that can be broken down in any time.[3] Newspapers reports show that the apex court has been passing heated times amid agitation and counter-agitation for few years.[4] In a sentence, services of the SC are not satisfactory. For long after independence, the judiciary was attached with the executive branch of the state, giving the ruling parties a chance to interfere into the judicial functions and depriving the justice seekers of getting justice. After about 25 years of the independence, the judiciary was separated from the executive branch in 2007 but its separate secretariat was not set up till now. Even after the separation of judiciary, many problems remain here as obstacle to justice, rule of law and practice of democracy. In this study, I have unveiled the matters for making the judiciary an effective and independent branch of state.
The territorial area of Bangladesh originally being a part and parcel of the then Indian Sub-continent, the history of its legal system may be traced back from the year of 1726, when King George-I issued a Charter changing the judicial administration of the Presidency towns of Calcutta, Bombay and Madras, through which the Civil and Criminal Courts, as established, started deriving their authority from the King.
It is to be noted that during Mughal Empire the East India Company by taking settlement and with permission from Mughal Badshah created the three presidency towns namely Madras, Bombay and Calcutta and said East India Company introduced the English legal system for administration of the presidency towns and thus the English Judicial system got entry into the territory of Indian Sub-continent.
The filing of the appeals from the then India in the Privy-Council in England was introduced by the said Charter of 1726 and thereafter to bring about change in the management of the then East India Company, the East India Company Regulating Act, 1773 was introduced to place the East India Company under the control of the British Government and provision was made for establishment of a Supreme Court of judicature at Fort William, Calcutta, through Charter or Letters Patent.
The Supreme Court of Judicature at Fort William in Bangal was established by Letters Patent issued on March 26, 1774, which as a Court of Record had power and authority to dispose of all complaints against the Majesty’s subjects in respect of any crime, suit or action arisen within the territory of Bengal, Bihar and Orissa. By an Act passed in 1833 the Privy-Council was transformed into an Imperial Court of unimpeachable authority, which played a great role as a unifying force for establishment of rule of law in the Indian Sub-continent.
The judicial system of the then India was re-organized by introducing the Indian High Court’s Act 1861 by which High Courts were established, abolishing the Supreme Courts at Fort William (Calcutta), Madras and Bombay, and the High Courts established were conferred with Civil, Criminal, Admiralty, Testamentary, Matrimonial jurisdictions with Original and Appellate Jurisdiction.
With the transfer of power from the British Parliament to the people on division of the then India, the High Court of Bengal (order) 1947 was promulgated under the Indian Independence Act, 1947, and the High Court of judicature for East Bengal at Dhaka was established as a separate High Court for the then East Pakistan and the said High Court was commonly known as the Dhaka High Court and the same was vested with all Appellate, Civil and Original jurisdictions.
With the enforcement of the Constitution of Islamic Republic of Pakistan in 1956, the Supreme Court of Pakistan was established as the apex Court of the country, consisting of East Pakistan and West Pakistan, in place of Federal Court, with the appellate jurisdiction to hear the decisions of the High Courts established in the provinces of the Pakistan. The Dhaka High Court had the jurisdiction to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, with further authority to declare any law promulgated violating the provisions of the Constitution as bad and void.
Initially after the Liberation War in 1971, the apex court was named as High Court of Bangladesh being set up under the President Order No.5 of 1972 (High Court of Bangladesh Order, 1972) and after the framing of the Constitution and adoption thereof by the Constituent Assembly on November 4, 1972 giving with effect from December 16, 1972, the “Supreme Court of Bangladesh” has been established under Chapter-I Part-VI of the Constitution of the People’s Republic of Bangladesh.
The Supreme Court of Bangladesh, with the sitting judges and the Chief Justice, is the repository of judicial power at the national level and the upholder and final interpreter of the Constitution of the People’s Republic of Bangladesh (Constitution) as well as the defender of the Constitution and rule of law in the Country.
Part-VI of the Constitution relates to jurisdiction of the Courts. It contains 3 Chapters. Chapter-I provides power and authority of the Supreme Court, Chapter-2 relates to the Sub-ordinate Courts and Chapter-3 deals with the Administrative Tribunal.
According to the Constitution, though the judiciary is independent from the executive branch of the state but no successive government separate the judiciary from the executive branch till 2007. The Constitution inter alia, did not provide complete independence for the courts of lower judiciary and it was left on the lawmakers to enact laws in this regard. Long after thirty five years since the adoption of the Constitution in 1972, the immediate past military-backed Caretaker Government (CG) in 2007 accomplished this task through promulgation of three ordinances in response to a judgment (Masder Hossain case) of the Supreme Court. Presently the lowest tier of the lower judiciary, that is, the Magistracy is being run by the judicial officers, leaving positive impacts on the poor people in need of litigation. The CG amended the Criminal Procedure Code, 1898 and along with these changes- the lower judiciary was separated from the executive organs of the state on 1sl November, 2007. After the separation, the basic laws with regard to the separation of judiciary and newly constituted Judicial Service Commission are : Bangladesh Judicial Service Commission Rules, 2007; Bangladesh Judicial Service ( Constitution of Service , Appointment to the Service, Suspension, Dismissal and Removal ) Rules, 2007 ; Bangladesh Judicial Service Commission ( Posting , Promotion, Grant of Leave , Control, Discipline and Other Condition of Service ) Rules, 2007; Bangladesh Service (Pay Commission ) Rules, 2007; Code of Criminal Procedure, 1898 ( Amendment Ordinance ), 2007. By virtue of Sub-rule (4) of Rule 6 of Bangladesh Judicial Service (Constitution of Service, Appointment to the service, Suspension, Dismissal and Removal) Rules, 2007, the competent authority i.e. the Ministry of Law, Justice and Parliamentary Affairs authorized by the Departmental Examination Order, 2008 by SRO No. 75-Ain 2008. So long this service of training and probation matters were regulated by Munsifs Training and Probation Rules, 1979. The Order of 29008 has prescribed new syllabus for Departmental examination in its schedule[5].
The judiciary especially the Supreme Court is the last resort to get justice. If any violation of law is taken place or anybody is deprived of his/her rights, then the courts responsibility and duty is to ensure justice for all without any discrimination irrespective of the rich and poor. If the judiciary fails to play its duties properly, then rule of law as well as democracy will fall in danger and ultimately country’s sovereignty and existence will be threatened. Unfortunately, this apex court, under which country’s existence is dependent, is now top corrupt service sector in the country, according to a report published in December last year by Transparency International, Bangladesh (TIB).[1] The TIB report revealed that the justice seekers are being harassed and bound to give bribe in getting justice from the court. The people are being harassed and deprived of justice. A total of 3.03 lakh cases are pending with the SC.[2] Former Chief Justice Mahmudul Amin Chowdhury compared the Judiciary (especially the SC) with “glasshouse” that can be broken down in any time.[3] Newspapers reports show that the apex court has been passing heated times amid agitation and counter-agitation for few years.[4] In a sentence, services of the SC are not satisfactory. For long after independence, the judiciary was attached with the executive branch of the state, giving the ruling parties a chance to interfere into the judicial functions and depriving the justice seekers of getting justice. After about 25 years of the independence, the judiciary was separated from the executive branch in 2007 but its separate secretariat was not set up till now. Even after the separation of judiciary, many problems remain here as obstacle to justice, rule of law and practice of democracy. In this study, I have unveiled the matters for making the judiciary an effective and independent branch of state.
The territorial area of Bangladesh originally being a part and parcel of the then Indian Sub-continent, the history of its legal system may be traced back from the year of 1726, when King George-I issued a Charter changing the judicial administration of the Presidency towns of Calcutta, Bombay and Madras, through which the Civil and Criminal Courts, as established, started deriving their authority from the King.
It is to be noted that during Mughal Empire the East India Company by taking settlement and with permission from Mughal Badshah created the three presidency towns namely Madras, Bombay and Calcutta and said East India Company introduced the English legal system for administration of the presidency towns and thus the English Judicial system got entry into the territory of Indian Sub-continent.
The filing of the appeals from the then India in the Privy-Council in England was introduced by the said Charter of 1726 and thereafter to bring about change in the management of the then East India Company, the East India Company Regulating Act, 1773 was introduced to place the East India Company under the control of the British Government and provision was made for establishment of a Supreme Court of judicature at Fort William, Calcutta, through Charter or Letters Patent.
The Supreme Court of Judicature at Fort William in Bangal was established by Letters Patent issued on March 26, 1774, which as a Court of Record had power and authority to dispose of all complaints against the Majesty’s subjects in respect of any crime, suit or action arisen within the territory of Bengal, Bihar and Orissa. By an Act passed in 1833 the Privy-Council was transformed into an Imperial Court of unimpeachable authority, which played a great role as a unifying force for establishment of rule of law in the Indian Sub-continent.
The judicial system of the then India was re-organized by introducing the Indian High Court’s Act 1861 by which High Courts were established, abolishing the Supreme Courts at Fort William (Calcutta), Madras and Bombay, and the High Courts established were conferred with Civil, Criminal, Admiralty, Testamentary, Matrimonial jurisdictions with Original and Appellate Jurisdiction.
With the transfer of power from the British Parliament to the people on division of the then India, the High Court of Bengal (order) 1947 was promulgated under the Indian Independence Act, 1947, and the High Court of judicature for East Bengal at Dhaka was established as a separate High Court for the then East Pakistan and the said High Court was commonly known as the Dhaka High Court and the same was vested with all Appellate, Civil and Original jurisdictions.
With the enforcement of the Constitution of Islamic Republic of Pakistan in 1956, the Supreme Court of Pakistan was established as the apex Court of the country, consisting of East Pakistan and West Pakistan, in place of Federal Court, with the appellate jurisdiction to hear the decisions of the High Courts established in the provinces of the Pakistan. The Dhaka High Court had the jurisdiction to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, with further authority to declare any law promulgated violating the provisions of the Constitution as bad and void.
Initially after the Liberation War in 1971, the apex court was named as High Court of Bangladesh being set up under the President Order No.5 of 1972 (High Court of Bangladesh Order, 1972) and after the framing of the Constitution and adoption thereof by the Constituent Assembly on November 4, 1972 giving with effect from December 16, 1972, the “Supreme Court of Bangladesh” has been established under Chapter-I Part-VI of the Constitution of the People’s Republic of Bangladesh.
The Supreme Court of Bangladesh, with the sitting judges and the Chief Justice, is the repository of judicial power at the national level and the upholder and final interpreter of the Constitution of the People’s Republic of Bangladesh (Constitution) as well as the defender of the Constitution and rule of law in the Country.
Part-VI of the Constitution relates to jurisdiction of the Courts. It contains 3 Chapters. Chapter-I provides power and authority of the Supreme Court, Chapter-2 relates to the Sub-ordinate Courts and Chapter-3 deals with the Administrative Tribunal.
According to the Constitution, though the judiciary is independent from the executive branch of the state but no successive government separate the judiciary from the executive branch till 2007. The Constitution inter alia, did not provide complete independence for the courts of lower judiciary and it was left on the lawmakers to enact laws in this regard. Long after thirty five years since the adoption of the Constitution in 1972, the immediate past military-backed Caretaker Government (CG) in 2007 accomplished this task through promulgation of three ordinances in response to a judgment (Masder Hossain case) of the Supreme Court. Presently the lowest tier of the lower judiciary, that is, the Magistracy is being run by the judicial officers, leaving positive impacts on the poor people in need of litigation. The CG amended the Criminal Procedure Code, 1898 and along with these changes- the lower judiciary was separated from the executive organs of the state on 1sl November, 2007. After the separation, the basic laws with regard to the separation of judiciary and newly constituted Judicial Service Commission are : Bangladesh Judicial Service Commission Rules, 2007; Bangladesh Judicial Service ( Constitution of Service , Appointment to the Service, Suspension, Dismissal and Removal ) Rules, 2007 ; Bangladesh Judicial Service Commission ( Posting , Promotion, Grant of Leave , Control, Discipline and Other Condition of Service ) Rules, 2007; Bangladesh Service (Pay Commission ) Rules, 2007; Code of Criminal Procedure, 1898 ( Amendment Ordinance ), 2007. By virtue of Sub-rule (4) of Rule 6 of Bangladesh Judicial Service (Constitution of Service, Appointment to the service, Suspension, Dismissal and Removal) Rules, 2007, the competent authority i.e. the Ministry of Law, Justice and Parliamentary Affairs authorized by the Departmental Examination Order, 2008 by SRO No. 75-Ain 2008. So long this service of training and probation matters were regulated by Munsifs Training and Probation Rules, 1979. The Order of 29008 has prescribed new syllabus for Departmental examination in its schedule[5].