Ensuring effective separation of judiciary
Wednesday, 25 March 2009
K. M. Mukta
SEPARATION of judiciary has the prime and pivotal role to ensure good governance and the rule of law. There is no better platform except an independent judiciary to uphold constitutional and human rights.
There is a historical struggle by the people of this region for an independent judiciary, being separated from the executive, to prevent multi-faceted suppression and oppression by various quarters. Even after achieving national independence, we find the 'inertia' of political will to take meaningful initiatives for separation of judiciary that was done by a non-political caretaker government on November 01, in pursuance of Masdar Hossain's case.
After separation of judiciary from November 01, 2007 to upwards, the criminal administration of justice has got its new face, in terms of qualitative and quantitative justice. There is a win-win situation for the wider stake holders, except the personnel of the administrative cadre who are desperate to serve their vested interests through efforts to capitalise on people's desire for justice by an independent judiciary. The disposal rate is enhancing at a geometrical progression. A higher degree of transparency, neutrality and accountability is already established in criminal administration of justice. The justice-seekers have interactions with the judicial magistrates in an open court environment, without any hide- and-seek game of corruption which was a usual course of business before the separation of judiciary. Separation of judiciary has already helped translate justice into a reality. This seems to have been done through saving time and labour etc., of all concerned.
The judicial magistrates with robust legal background are delving deep into the cases with nitty-gritty of law, setting aside any political interference and nepotism. Such welcome indicators about the separation of judiciary would ensure good governance in the near future and not a single victim would thus hopefully without a remedy.
Unfortunately, the government of the day with its "promise about change" is taking the wrong step to jeopardise separation of judiciary via encroaching upon administration of criminal justice. This would beget conflict among state organs. The decision to take cognisance of the offences by the executive magistrates U/s 190 of Cr.P.C, 1898 goes against the letter and spirit of the apex court's decision given in Masdar Hossain's case.
Cognisance is an important, salient stage of the proceedings of criminal case where a higher degree of care and caution is a must. A criminal case with flawed cognisance, made ready for trial, would aggravate sufferings of the people as it is quite explicit in the Bangladesh perspective having "as many tables and so much corruption". Moreover, the executive magistrates devoid of legal background do not understand the nuances of legal phraseology. This is corroborated by the statistics about the highest acquittal rate -- about 90% in criminal cases by the then executive magistrates. The whole nation is still carrying the bitter and dark history of illegality and miscarriage of justice, left by the executive magistrates in criminal cases in the name of justice. The sufferers have not forgotten how the then executive magistrates haggled on their order behind the curtain. Ready made orders were given in court where natural justice was set at naught. As a sequel, the entire institution of criminal justice became questionable, losing its acceptability to the countrymen.
If the government is true to its commitment or promises to the people about a paradigm shift of conventional governance equation in Bangladesh, the bill for the separation of judiciary should be passed, at it was done in the form of an Ordinance, 2007, promulgated during the tenure of the caretaker government.
The new government has the overwhelming mandate of the people, much like the situation after 1954 and 1970 elections. The whole nation is highly expectant of this government to make utmost efforts for building a strong edifice of basic state machineries for holistic development. None would like this government to pursue, like its predecessors, to purse any hidden desire to use executive magistrates to suppress and oppress different political opinions.
The people of Bangladesh have a lot of expectations; they do not understand why the executive wants to unsettle afresh the settled issue of separation of judiciary after past 14 months when there was no problem of law and order situation in the field level. History would bear out to what extent the personnel of the administrative cadre did overtly and covertly use their malafide power to harass the different political entities, though the constitution of the Republic enshrines all the human rights ensuring the same to the citizens of independent Bangladesh.
It is a matter of great regret for the nation that after long 38 years of independence, the democratically elected government is apparently dithering on taking the action that is needed to ensure full-fledged separation of the judiciary.
The dilatory tactics to ensure the separation of judiciary is nothing but a part of the machanisations by the vested interests to deny good governance, frustrate democracy and subvert efforts for institutionalising the rule of law. Efforts to subvert the real separation of judiciary from the executive would impede the process for sustainable development of a basic institution like that of judiciary. The logic of the personnel of the administrative cadre in support of criminal magistracy is devoid of pragmatism and is purported for preserving their domain of power that can be used to maximise corruption.
For the ultimate welfare of the countrymen, the move to share with the executive the power to deal with criminal cases must not be carried forward. The civil society, non-government organisations (NGOs) and other stakeholders should come forward with their strong advocacy to frustrate attempts by the vested interests to jeopardise the smooth functioning of a judicial system that can be ensured only through separation of power.
The writer is a advocate, researcher and analyst on law and judiciary in Bangladesh. He may be reached at
e-mail: Kohinoorgazi@yahoo.com
SEPARATION of judiciary has the prime and pivotal role to ensure good governance and the rule of law. There is no better platform except an independent judiciary to uphold constitutional and human rights.
There is a historical struggle by the people of this region for an independent judiciary, being separated from the executive, to prevent multi-faceted suppression and oppression by various quarters. Even after achieving national independence, we find the 'inertia' of political will to take meaningful initiatives for separation of judiciary that was done by a non-political caretaker government on November 01, in pursuance of Masdar Hossain's case.
After separation of judiciary from November 01, 2007 to upwards, the criminal administration of justice has got its new face, in terms of qualitative and quantitative justice. There is a win-win situation for the wider stake holders, except the personnel of the administrative cadre who are desperate to serve their vested interests through efforts to capitalise on people's desire for justice by an independent judiciary. The disposal rate is enhancing at a geometrical progression. A higher degree of transparency, neutrality and accountability is already established in criminal administration of justice. The justice-seekers have interactions with the judicial magistrates in an open court environment, without any hide- and-seek game of corruption which was a usual course of business before the separation of judiciary. Separation of judiciary has already helped translate justice into a reality. This seems to have been done through saving time and labour etc., of all concerned.
The judicial magistrates with robust legal background are delving deep into the cases with nitty-gritty of law, setting aside any political interference and nepotism. Such welcome indicators about the separation of judiciary would ensure good governance in the near future and not a single victim would thus hopefully without a remedy.
Unfortunately, the government of the day with its "promise about change" is taking the wrong step to jeopardise separation of judiciary via encroaching upon administration of criminal justice. This would beget conflict among state organs. The decision to take cognisance of the offences by the executive magistrates U/s 190 of Cr.P.C, 1898 goes against the letter and spirit of the apex court's decision given in Masdar Hossain's case.
Cognisance is an important, salient stage of the proceedings of criminal case where a higher degree of care and caution is a must. A criminal case with flawed cognisance, made ready for trial, would aggravate sufferings of the people as it is quite explicit in the Bangladesh perspective having "as many tables and so much corruption". Moreover, the executive magistrates devoid of legal background do not understand the nuances of legal phraseology. This is corroborated by the statistics about the highest acquittal rate -- about 90% in criminal cases by the then executive magistrates. The whole nation is still carrying the bitter and dark history of illegality and miscarriage of justice, left by the executive magistrates in criminal cases in the name of justice. The sufferers have not forgotten how the then executive magistrates haggled on their order behind the curtain. Ready made orders were given in court where natural justice was set at naught. As a sequel, the entire institution of criminal justice became questionable, losing its acceptability to the countrymen.
If the government is true to its commitment or promises to the people about a paradigm shift of conventional governance equation in Bangladesh, the bill for the separation of judiciary should be passed, at it was done in the form of an Ordinance, 2007, promulgated during the tenure of the caretaker government.
The new government has the overwhelming mandate of the people, much like the situation after 1954 and 1970 elections. The whole nation is highly expectant of this government to make utmost efforts for building a strong edifice of basic state machineries for holistic development. None would like this government to pursue, like its predecessors, to purse any hidden desire to use executive magistrates to suppress and oppress different political opinions.
The people of Bangladesh have a lot of expectations; they do not understand why the executive wants to unsettle afresh the settled issue of separation of judiciary after past 14 months when there was no problem of law and order situation in the field level. History would bear out to what extent the personnel of the administrative cadre did overtly and covertly use their malafide power to harass the different political entities, though the constitution of the Republic enshrines all the human rights ensuring the same to the citizens of independent Bangladesh.
It is a matter of great regret for the nation that after long 38 years of independence, the democratically elected government is apparently dithering on taking the action that is needed to ensure full-fledged separation of the judiciary.
The dilatory tactics to ensure the separation of judiciary is nothing but a part of the machanisations by the vested interests to deny good governance, frustrate democracy and subvert efforts for institutionalising the rule of law. Efforts to subvert the real separation of judiciary from the executive would impede the process for sustainable development of a basic institution like that of judiciary. The logic of the personnel of the administrative cadre in support of criminal magistracy is devoid of pragmatism and is purported for preserving their domain of power that can be used to maximise corruption.
For the ultimate welfare of the countrymen, the move to share with the executive the power to deal with criminal cases must not be carried forward. The civil society, non-government organisations (NGOs) and other stakeholders should come forward with their strong advocacy to frustrate attempts by the vested interests to jeopardise the smooth functioning of a judicial system that can be ensured only through separation of power.
The writer is a advocate, researcher and analyst on law and judiciary in Bangladesh. He may be reached at
e-mail: Kohinoorgazi@yahoo.com