Preliminary Discourse:
INDEPENDENCE of Judiciary is the fundamental element and “Sine Qua Non i.e. Essential Precondition” for ensuring the development and enhancement of democracy. It is important for the development and enhancement of social equilibrium, socio-economic equality, civil and political rights and justice in the society.
A COUNTRY having lack of judicial independence is a country of jungle law. Judges are independent, neutral and unbiased adjudicators for upholding rule of law and for striking balance between the contestants or disputants. In a country of written constitution regime, the role of the Judges is deeply rooted in the constitutional hemisphere. It is the duty of the Government and other institutions to respect the independence of the Judiciary.
[Please see Article 22 of Part-II, Article 94 (4) of Part-VI, Chapter-I, Article 116A of Part-VI, Chapter-II of the Constitution of the People’s Republic of Bangladesh, 1972 =AND= Paragraph Nos. I, II and X of PREAMBLE read with Principle 1 and 7 of the Basic Principles on the Independence of the Judiciary, 1985 =AND= Article 8 and 10 of the Universal Declaration of Human Rights, 1948 =AND= Article 14 (1) of the International Covenant on Civil and Political Rights, 1966 =AND= Principles 11 to 24 and 38 to 42 of the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region, 2001]
ELEMENT 01: Separation of Judiciary:
Firstly: All the organisations of the Judiciary of any country must be independent of the control and supervision of the Executive. Administrative control, whether direct or indirect, upon the judiciary, whether higher or subordinate, is an utter threat in the establishment of the independent judiciary.
Secondly: The Supreme Court and the Judges, the Members of Staff of Administrative Staff i.e. Supreme Court’s Registry must be independent. The Judges are mostly self-governed and the members of Staff are governed by the Supreme Court itself.
Thirdly: The Members of the Judicial Services organisations of subordinate Judiciary such as Subordinate Courts and Tribunals are to be independent of the Executive and must be governed under the authority of the Supreme Court in terms of management, administration, promotion, transfer, reward and discipline.
[Please see Secretary, Ministry of Finance Vs. Masdar Hossain, 52 DLR, (1999) A.D., p. 82]
Fourthly: The Legislature cannot impose any duty upon the Judiciary by framing law imposing functions not judicial business in nature, but administrative task in nature [Hayburn’s Case, 2 U.S. 409 (1792)].
[Please see Article 22 under Part-II of the Constitution of the People’s Republic of Bangladesh, 1972 =AND= Please see Report of Special Rapporteurs on the situation of human rights in Nigeria, UN doc.E/CN.4/1997/62/Add.1, Para. 71 =AND= Report of the Special Rapporteur on the independence of judges and lawyers, UN doc.E/CN.4/1995/39, Para. 32, 34 and 55].
ELEMENT 02: Selection of Proper Person:
Firstly: A person with knowledge, skills, interpersonal communication ability, integrity, impeccable professional and personal record of accomplishment is vital element for independent judiciary [Value Nos. 2 and 3 of the Bangalore Principles of Judicial Conduct, 2002].
Secondly: Selection of right person for the office of the Judiciary is therefore a vital element of judicial independence. The State must not make discrimination of any kind in selection process, in making appointment and in providing training [Principle 1 of the Basic Principle on the Independence of the Judiciary, 1985].
Thirdly: Further that no discrimination is allowed based race, colour, sex, religion, creed, caste, political allegiance or other opinion, national or social origin, property, birth or status in the selection of the Judges [Principles 2 and 10 of the Independence of the Judiciary, 2002].
Fourthly: Judges must not be preoccupied with any notion that may be a subject matter for judicial scrutiny. Because such preoccupied notion is prejudicial in the establishment of a free, fair and independent judiciary. Even Judges are sometimes not allowed to sit on a subject matter on which such Judges made lectures or gave opinion in an earlier occasion before the matter is submitted to the judicial scrutiny [Please see Value Nos. 2 and 3 of the Bangalore Principles of Judicial Conduct, 2002 =AND= Value Nos. 2 and 5 of the Bangalore Principles of the Judicial Conduct, 1985 also see A Vs. Home Secretary, (2004) UKHL 56].
[Please see Principles 11, 12 and 13 of the Basic Principles on the Independence of the Judiciary, 1985 =AND= Value Nos. 2 and 3 of the Bangalore Principles of the Judicial Conduct, 1985].
ELEMENT 03: Judges’ Independence and Guarantee of Tenure:
Firstly: One of the fundamental elements is that the Judges must enjoy the guarantee of tenure while rendering their service. Neither the Legislative nor the Executive may put hand in matters that are exclusively within the remit of the Judiciary.
Secondly: There must be certainty of age of retirement, unimpeachable system of impeachment, and no superficial system of disciplining the judge. No Judge shall be removed or disciplined simply because such Judge passed judgments in exercise of its equitable and discretionary judicial power independently.
Thirdly: No Judge is to be subjected to act as long as the pleasure of any person or dignitary of the State. This is the worst possible attack upon the independence of the Judiciary.
Fourthly: The promotion, transfer, salaries, other financial and non-financial benefits must be ensured by the State without any discrimination.
[Please see Article 22 under Part-II of the Constitution of the People’s Republic of Bangladesh, 1972 read with Principles 2, 10, 11, 12 and 13 of the Basic Principles on the Independence of the Judiciary, 1985 =AND= Principles 11 to 24 and 31 and 32 of the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region, 2001].
ELEMENT 04: Organisational Independence:
ORGANISATIONAL independence for the purpose of Judicial Independence means as follows:-
Firstly, Managing, transferring, promoting, rewarding and disciplining the Members of Judicial Services, subordinate Courts and Tribunals, must be in the hand of the Supreme Court. The Supreme Court must have uninhibited power to control the subordinate Judges.
Secondly, Organisational independence means making appointment to the members of administration staff, and managing, disciplining, transferring, rewarding and disciplining them under the Supreme Court of Bangladesh.
Thirdly, No Act can be passed or Executive order may well be allowed to bring changes in organisation of Courts and system of Justice as in the Constitution [Bruce Vs. Cole, (1998), 45 NSWLR, p. 163].
[Please see Article 22 under Part-II of the Constitution of the People’s Republic of Bangladesh, 1972 =AND= Principle 2, 3, 4, 10, 11, 12 and 13 of the Basic Principles on the Independence of the Judiciary, 1985 =AND= Principle 36 of the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region, 2001 =AND= Walter Vatente Vs. Her Majesty the Queen, (1985) 2 R.C.S., p. 673].
ELEMENT 05: Control Over Budget and Finance:
Firstly: The other element of paramount importance for the judicial independence is control of finance and budget. There must be law and system under which the Judiciary will have power to prepare, disburse and monitor budget for both the subordinate Courts and Tribunals as well as the Supreme Court.
Secondly: The Judiciary must have the power to determine the sources from which it may collect revenue. The Supreme Court must have jurisdiction to use and manage revenue for the effective operation of functions and administration of the judiciary.
Thirdly: The State must ensure that the Judiciary is given sufficient funds for the effective operations of the judicial businesses along with judicial administration.
[Please see Article 22 under Part-II of the Constitution of the People’s Republic of Bangladesh, 1972 =AND= Principle 2, 3 and 4 of the Basic Principles on the Independence of the Judiciary, 1985 =AND= Principle 37 of the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region, 2001].
ELEMENT 06: Properly Defined Accountability:
Firstly: The Judge is accountable to thyself, then to the law and system, then to the people for whom they serve. The accountability of the Judges is best ensured when unnecessary Political or Executive or Legislature control and interference is excluded and by establishing removal proceedings by a Superior Judicial Council.
Secondly: It is evident in many countries that Executive or Legislative intervenes in removing the Judges at cost of compromising the independence of the Judiciary. There must be proper system of accountability that does not interfere and compromise with the independence of the judiciary.
Thirdly: The constitutional arrangement of holding Judges accountable to the Head of the State or the President, as may be seen in some countries including Bangladesh, is a ceremonial structure, rather than coercive in nature, of accountability. Judges are not to be dictated as to how to discharge their judicial functions by the Head of the State in the name of the accountability.
[Please see Article 22 under Part-II, 94 (4) under Part-VI, Chapter-I and Article 116A under Part-VI, Chapter-II of the Constitution of the People’s Republic of Bangladesh, 1972].
REFERENCE (Constitution):::
1. The Constitution of the People’s Republic of Bangladesh, 1972.
REFERENCE (International Conventions & Instruments):::
1. The Basic Principles on the Independence of the Judiciary, 1985.
2. The Universal Declaration of Human Rights, 1948.
3. The International Covenant on Civil and Political Rights, 1966.
4. The Bangalore Principles of Judicial Conduct, 2002.
5. Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region, 2001.
REFERENCE (Case Law from Different Jurisdictions):::
1. Secretary, Ministry of Finance Vs. Masdar Hossain, 52 DLR, (1999) A.D., p. 82 (Bangladesh).
2. A Vs. Home Secretary, (2004) UKHL 56 (UK).
3. Walter Vatente Vs. Her Majesty the Queen, (1985) 2 R.C.S., p. 673 (Canada).
4. Hayburn’s Case, 2 U.S. (1792), 409 (USA).
5. Bruce Vs. Cole, (1998), 45 NSWLR, p. 163 (Australia).
REFERENCE (UNO Reports):::
1. Report of Special Rapporteurs on the situation of human rights in Nigeria, UN doc.E/CN.4/1997/62/Add.1, Para. 71.
2. Report of the Special Rapporteur on the independence of judges and lawyers, UN doc.E/CN.4/1995/39, Para. 32, 34 and 55
:::Nota Bene:::
<> “Basic Principles on the Independence of the Judiciary, 1985” is Adopted by the “Seventh United Nations Congress” on the “Prevention of Crime and the Treatment of Offenders” held at Milan from 26 August to 6 September 1985 and endorsed by “General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985”.
Tanjib Sarowar Samim
