THE SEPARATION OF JUDICIARY IN BANGLADESH :AN OVER VIEW

Chapter-1
History of Bangladesh
Introduction:
Bangladesh became one of the large nation states in 1971 when it seceded from Pakistan. Prior to the creation of Pakistan in 1947, modern-day Bangladesh was part of ancient, classical, medieval and colonial India. Since independence, the government has experienced periods of democratic and military rule. The founding leader of the country and its first president was Sheikh Mujibur Rahman. His daughter Sheikh Hasina Wazed is currently the prime minister, as leader of the Awami League. The opposition Bangladesh Nationalist Party is led by Begum Khaleda Zia, who is the widow of the revered freedom fighter and former president Ziaur Rahman.

Etymology of Bengal:
History of Bengal
The exact origin of the word Bangla or Bengal is unknown, though it is believed to be derived from the Dravidian-speaking tribe Bang/Banga that settled in the area around the year 1000 BCE.[1][2] Other accounts speculate that the name is derived from Vanga (Bôngo), which came from the Austric word "Bonga" meaning the Sun-god. According to Mahabharata, Purana, Harivamsha Vanga was one of the adopted sons of king Vali who founded the Vanga kingdom. The Muslim Accounts refer that "Bong", a son of Hind (son of Hām who was a son of Prophet Noah/Nooh) colonized the area for the first time.[3] The earliest reference to "Vangala" (Bôngal) has been traced in the Nesari plates (805 AD) of Rashtrakuta Govinda III which speak of Dharmapala as the king of Vangala. Shams-ud-din Ilyas Shah took the title "Shah-e-Bangalah" and united the whole region under one government for the first time.[4]

Ancient period
Pre-historic Bengal
Stone tools provide the earliest evidence of human settlements. Prehistoric stone implements have been discovered in various parts of West Bengal in the districts of Midnapur, Bankura and Burdwan. But it is difficult to determine, even approximately, the time when people using them first settled in Bengal. It might have taken place ten thousand years (or even more) ago. The original settlers spoke non-Aryan languages—they may have spoken Austric or Austro-Asiatic languages like the languages of the present-day Kola, Bhil, Santal, Shabara and Pulinda peoples. At a subsequent age, peoples speaking languages from two other language families—Dravidian and Tibeto-Burman—seem to have settled in Bengal. Archaeological discoveries during the 1960s furnished evidence of a degree of civilisation in certain parts of Bengal as far back as the beginning of the first millennium BC, perhaps even earlier. The discoveries at Pandu Rajar Dhibi in the valley of the Ajay River (near Bolpur) in Burdwan district and in several other sites on the Ajay, Kunar and Kopai Rivers have thrown fresh light on Bengal's prehistory. Pandu Rajar Dhibi represents the ruins of a trading township, which carried on trade not only with the interior regions of India, but also—possibly indirectly—with the countries of the Mediterranean.
Bengal in mythology
Some deprecatory references indicate that the early people in Bengal were different in ethnicity and culture from the Vedic beyond the boundary of Aryandom and who were classed as 'Dasyus'. The Bhagavata Purana classes them as sinful people while Dharmasutra of Bodhayana prescribes expiatory rites after a journey among the Pundras and Vangas. Mahabharata speaks of Paundraka Vasudeva who was lord of the Pundrasand who allied himself with Jarasandha against Krishna. Mahabharata also speaks of Bengali kings called Chitrasena and Sanudrasena who were defeated by Bhima, Kalidas mentions Raghu defeated a coalition of Vanga kings who were defeated by Raghu and Raghu established a victory column in the Gangetic delta.

Proto-History


Mahasthangarh is the oldest archaeological site in Bangladesh. It dates back to 700 BCE and was the ancient capital of the Pundra Kingdom.
Hindu scriptures such as the Mahabharata say that Bangladesh was divided among various tribes or kingdoms, including the Nishadas and kingdoms known as the Janapadas: Vanga (southern Bengal), Pundra (northern Bengal), and Suhma (western Bengal) according to their respective totems. These Hindu sources, written by Indo-Aryans in what is now Punjab and Uttar Pradesh, say that the peoples of Bangladesh were not Indo-Aryans. However, Jain scriptures identify Vanga and Anga in Bangladesh as Indo-Aryan. While western Bangladesh, as part of Magadha, became part of the Indo-Aryan civilization by the 7th century BCE, the Nanda Dynasty was the first historical state to unify all of Bangladesh under Indo-Aryan rule.

Overseas Colonization
The Vanga Kingdom was a powerful seafaring nation of Ancient India. They had overseas trade relations with Java, Sumatra and Siam (modern day Thailand). According to Mahavamsa, the Vanga prince Vijaya Singha conquered Lanka (modern day Sri Lanka) in 544 BC and gave the name "Sinhala" to the country. Bengali people migrated to the Maritime Southeast Asia and Siam (in modern Thailand), establishing their own colonies there.[4]
Gangaridai Empire



Asia in 323BC, the Nanda Empire and Gangaridai Empire in relation to Alexander's Empire and neighbors.
Though north and west Bengal were part of the Magadhan empire southern Bengal thrived and became powerful with her overseas trades. In 326 BCE, with the invasion of Alexander the Great the region again came to prominence. The Greek and Latin historians suggested that Alexander the Great withdrew from India anticipating the valiant counter attack of the mighty Gangaridai empire that was located in the Bengal region. Alexander, after the meeting with his officer, Coenus, was convinced that it was better to return. Diodorus Siculus mentions Gangaridai to be the most powerful empire in India whose king possessed an army of 20,000 horses, 200,000 infantry, 2,000 chariots and 4,000 elephants trained and equipped for war. The allied forces of Gangaridai Empire and Nanda Empire (Prasii) were preparing a massive counter attack against the forces of Alexander on the banks of Ganges. Gangaridai according to the Greek accounts kept on flourishing at least up to the 1st century AD.
Early Middle Ages
The pre-Gupta period of Bengal is shrouded with obscurity. Before the conquest of Samudragupta Bengal was divided into two kingdoms: Pushkarana and Samatata. Chandragupta II had defeated a confederacy of Vanga kings resulting in Bengal becoming part of the Gupta Empire.
Gauda Kingdom
By the sixth century, the Gupta Empire ruling over the northern Indian subcontinent was largely broken up. Eastern Bengal became the Vanga Kingdom while the Gauda kings rose in the west with their capital at Karnasuvarna (Murshidabad). Shashanka, a vassal of the last Gupta Empire became independent and unified the smaller principalities of Bengal (Gaur, Vanga, Samatata) and vied for regional power with Harshavardhana in northern India. But this burst of Bengali power did not last beyond his death, as Bengal descended afterwards into a period marked by disunity and foreign invasion.
The Pala dynasty




Pala Empire under Dharmapala
Pala Empire under Devapala

Pala dynasty were the first independent Buddhist dynasty of Bengal. The name Pala (Modern Bengali: পাল pal) means protector and was used as an ending to the names of all Pala monarchs. The Palas were followers of the Mahayana and Tantric schools of Buddhism. Gopala was the first ruler from the dynasty. He came to power in 750 in Gaur by a democratic election. This event is recognized as one of the first democratic elections in South Asia since the time of the Mahā Janapadas. He reigned from 750-770 and consolidated his position by extending his control over all of Bengal. The Buddhist dynasty lasted for four centuries (750-1120 AD) and ushered in a period of stability and prosperity in Bengal. They created many temples and works of art as well as supported the Universities of Nalanda and Vikramashila. Somapura Mahavihara built by Dharmapala is the greatest Buddhist Vihara in the Indian Subcontinent.


Somapura Mahavihara in Bangladesh is the greatest Buddhist Vihara in the Indian Subcontinent, built by Dharmapala.
The empire reached its peak under Dharmapala and Devapala. Dharmapala extended the empire into the northern parts of the Indian Subcontinent. This triggered once more for the control of the subcontinent. Devapala, successor of Dharmapala, expanded the empire to cover much of South Asia and beyond. His empire stretched from Assam and Utkala in the east, Kamboja (modern day Afghanistan) in the north-west and Deccan in the south. According to Pala copperplate inscription Devapala exterminated the Utkalas, conquered the Pragjyotisha (Assam), shattered the pride of the Huna, and humbled the lords of Gurjara, Pratiharas and the Dravidas.


Buddha and Bodhisattvas, 11th century, Pala Empire
The death of Devapala ended the period of ascendancy of the Pala Empire and several independent dynasties and kingdoms emerged during this time. However, Mahipala I rejuvenated the reign of the Palas. He recovered control over all of Bengal and expanded the empire. He survived the invasions of Rajendra Chola and the Chalukyas. After Mahipala I the Pala dynasty again saw its decline until Ramapala, the last great ruler of the dynasty, managed to retrieve the position of the dynasty to some extent. He crushed the Varendra rebellion and extended his empire farther to Kamarupa, Orissa and Northern India.
The Pala Empire can be considered as the golden era of Bengal. Never had the Bengali people reached such height of power and glory to that extent. Palas were responsible for the introduction of Mahayana Buddhism in Tibet, Bhutan and Myanmar. The Pala had extensive trade as well as influence in south-east Asia. This can be seen in the sculptures and architectural style of the Sailendra Empire (present-day Malaya, Java, Sumatra).
Sena dynasty
The Palas were followed by the Sena dynasty who brought Bengal under one ruler during the twelfth century. Vijay Sen the second ruler of this dynasty defeated the last Pala emperor Madanapala and established his reign. Ballal Sena introduced caste system in Bengal and made Nabadwip the capital. The fourth king of this dynasty Lakshman Sen expanded the empire beyond Bengal to Bihar. Lakshman fled to eastern Bengal under the onslaught of the Muslims without facing them in battle. The Sena dynasty brought a brief period of revival of Hinduism in bengal. A popular myth comprehended by some Bengali authors about Jayadeva, the famous Sanskrit poet of Odisha(then known as the Kalingan Empire)and author of Gita Govinda, was one of the Pancharatnas (meaning 5 gems) in the court of Lakshman Sen.It remains a myth though as there remains no evidence to suggest so.

Late Middle Ages - arrival of Islam:
Islam made its first appearance in Bengal during the twelfth century AD when Sufi missionaries arrived. Later occasional Muslim invaders reinforced the process of conversion by building mosques, madrassas and Sufi Khanqah. Beginning in 1202 a military commander from the Delhi Sultanate, Bakhtiar Khilji, overran Bihar and Bengal as far east as Rangpur, Bogra and the Brahmaputra River. The defeated Laksman Sen and his two sons moved to a place then called Vikramapur (present-day Munshiganj District), where their diminished dominion lasted until the late thirteenth century.Hindu bengali kingdoms continued to exist in the Southern nd the Eastern parts of Bengal till the 1450s.After the 1450s even they were overwhelmed by the Turkish attacks.Only Koch kingdom in the North could resist the Turks and later the Afghans,through the 1500s and the 1600s and weathered the Mughals also and survived till the advent of the British.Henceforth Hindu political power was thus limited to warlords and barons serving under Muslim kings,especially in the areas now in West Bengal and the western parts of Bangladesh.
Turkic rule
Khilji maliks:
The period after Bakhtiar Khilji's death in 1206 devolved into infighting among the Khiljis - representative of a pattern of succession struggles and intra-empire intrigues during later Turkic regimes. Ghiyasuddin Iwaz Khalji prevailed and extended the Sultan's domain south to Jessore and made the eastern Bang province a tributary. The capital was made at Lakhnauti on the Ganges near the older Bengal capital of Gaur. He managed to make Kamarupa and Trihut pay tribute to him. But he was later defeated by Shams-ud-Din Iltutmish.
Mameluk rule:
The weak successors of Iltutmish encouraged the local governors to declare independence. Bengal was sufficiently remote from Delhi that its governors would declare independence on occasion, styling themselves as Sultans of Bengal. It was during this time that Bengal earned the name "Bulgakpur" (land of the rebels). Tughral Togun Khan added Oudh and Bihar to Bengal. Mughisuddin Yuzbak also conquered Bihar and Oudh from Delhi but was killed during an unsuccessful expedition in Assam. Two Turkic attempts to push east of the broad Jamuna and Brahmaputra rivers were repulsed, but a third led by Mughisuddin Tughral conquered the Sonargaon area south of Dhaka to Faridpur, bringing the Sen Kingdom officially to an end by 1277. Mughisuddin Tughral repulsed two massive attacks of the sultanate of Delhi before finally being defeated and killed by Ghiyas ud din Balban.
Mahmud Shahi dynasty:
Mahmud Shahi dynasty started when Nasiruddin Bughra Khan declared independence in Bengal. Thus Bengal regained her independence back. Nasiruddin Bughra Khan and his successors ruled Bengal for 23 years finally being incorporated into Delhi Sultanate by Ghyiasuddin Tughlaq.

Ilyas Shahi dynasty:

Sixty Dome Mosque in Mosque city of Bagerhat was built in the 15th century and is the largest historical mosque in Bangladesh, as well as a World Heritage site.
Shamsuddin Iliyas Shah founded an independent dynasty that lasted from 1342-1487. The dynasty successfully repulsed attempts by Delhi to conquer them. They continued to reel in the territory of modern-day Bengal, reaching to Khulna in the south and Sylhet in the east. The sultans advanced civic institutions and became more responsive and "native" in their outlook and cut loose from Delhi. Considerable architectural projects were completed including the massive Adina Mosque and the Darasbari Mosque which still stands in Bangladesh near the border. The Sultans of Bengal were patrons of Bengali literature and began a process in which Bengali culture and identity would flourish. The Ilyas Shahi Dynasty was interrupted by an uprising by the Hindus under Raja Ganesha. However the Ilyas Shahi dynasty was restored by Nasiruddin Mahmud Shah. The dynasty was finally overthrown by the Habshi (Abyssinian) slaves of the sultanate.
Hussain Shahi dynasty
The Habshi rule gave way to the Hussain Shahi dynasty that ruled from 1494-1538. Alauddin Hussain Shah, considered as the greatest of all the sultans of Bengal for bringing cultural renaissance during his reign. He extended the sultanate all the way to the port of Chittagong, which witnessed the arrival of the first Portuguese merchants. Nasiruddin Nasrat Shah gave refuge to the Afghan lords during the invasion of Babur though he remained neutral. However Nusrat Shah made a treaty with Babur and saved Bengal from a Mughal invasion. The last Sultan of the dynasty, who continued to rule from Gaur, had to contend with rising Afghan activity on his northwestern border. Eventually, the Afghans broke through and sacked the capital in 1538 where they remained for several decades until the arrival of the Mughals.

Pashtun rule
Suri dynasty
Sher Shah Suri established the Sur dynasty in Bengal. After the battle of Chausa he declared himself independent Sultan of Bengal and Bihar. Sher Shah was the only Muslim Sultan of Bengal to establish an empire in northern India. The Delhi Sultanate Islam Shah appointed Muhammad Khan Sur as the governor of Bengal. After the death of Islam Shah, Muhammad Khan Sur became independent. Muhammad Khan Sur was followed by Ghyiasuddin Bahadur Shah and Ghyiasuddin Jalal Shah. The Pashtun rule in Bengal remained for 44 years. Their most impressive achievement was Sher Shah's construction of the Grand Trunk Road connecting Sonargaon, Delhi and Peshawar.
Karrani dynasty
The Sur dynasty was followed by the Karrani dynasty. Sulaiman Khan Karrani annexed Orissa to the Muslim sultanate permanently. Daoud Shah Karrani declared independence from Akbar which led to four years of bloody war between the Mughals and the Pashtuns. The Mughal onslaught against the Pashtun Sultan ended with the battle of Rajmahal in 1576, led by Khan Jahan. However, the Pashtun and the local landlords (Baro Bhuyans) led by Isa Khan resisted the Mughal invasion.

Mughal period



The Lalbagh Fort was developed by Shaista Khan.
Bengal came once more under the control of Delhi as the Mughals conquered it in 1576. At that time Dhaka became a Mughal provincial capital. But it remained remote and thus a difficult to govern the region especially the section east of the Brahmaputra River remained outside the mainstream of Mughal politics. The Bengali ethnic and linguistic identity further crystallized during this period, since the whole of Bengal was united under an able and long-lasting administration. Furthermore its inhabitants were given sufficient autonomy to cultivate their own customs and literature.
In 1612, during Emperor Jahangir's reign, the defeat of Sylhet completed the Mughal conquest of Bengal with the exception of Chittagong. At this time Dhaka rose in prominence by becoming the provincial capital of Bengal. Chittagong was later annexed in order to stifle Arakanese raids from the east. A well-known Dhaka landmark, Lalbagh Fort, was built during Aurangzeb's sovereignty.
History repeated itself as the frontier Bengal province broke off from a Delhi-based empire around the time Aurangzeb's death in 1707. Murshid Quli Khan ended Dhaka's century of grandeur as he shifted the capital to Murshidabad ushering in a series of independent Bengal Nawabs. Nawab Alivardi Khan showed military skill during his wars with the Marathas. He completely routed the Marathas from Bengal. He crushed an uprising of the Afghans in Bihar and made the British pay 150,000 Tk for blocking Mughal and Armenian trade ships.

Europeans in Bengal
Portuguese traders and missionaries were the first Europeans to reach Bengal in the latter part of the fifteenth century. They were followed by representatives from the Netherlands, France, and the British East India Company. The Mughal Subahdar of Bengal Kasim Khan Mashadi completely destroyed the Portuguese forces in the Battle of Hoogly (1632). About 10,000 Portuguese men and women died in the battle and 4,400 were sent captive to Delhi.
During Aurangzeb's reign, the local Nawab sold three villages, including one then known as Calcutta, to the British. Calcutta was Britain's first foothold in Bengal and remained a focal point of their economic activity. The British gradually extended their commercial contacts and administrative control beyond Calcutta to the rest of Bengal. Job Charnock was one of the first dreamers of a British empire in Bengal. He waged war against the Mughal authority of Bengal which led to the Anglo-Mughal war for Bengal (1686–1690). Shaista Khan, the Nawab of Bengal, defeated the British in the battles of Hoogly as well as Baleshwar and expelled the British from Bengal. Captain William Heath with a naval fleet moved towards Chittagong but it was a failure and he had to retreat to Madras.

British rule


The Bengal Presidency of British India at its greatest extent in 1858.
The British East India Company gained official control of Bengal following the Battle of Plassey in 1757. This was the first conquest, in a series of engagements that ultimately lead to the expulsion of other European competitors. The defeat of the Mughals and the consolidation of the subcontinent under the rule of a corporation was a unique event in imperialistic history. Kolkata (Anglicized as "Calcutta") on the Hooghly became a major trading port for bamboo, tea, sugar cane, spices, cotton, muslin and jute produced in Dhaka, Rajshahi, Khulna, and Kushtia.
Scandals and the bloody rebellion known as the Sepoy Mutiny prompted the British government to intervene in the affairs of the East India Company. In 1858, authority in India was transferred from the Company to the crown, and the rebellion was brutally suppressed. Rule of India was organized under a Viceroy and continued a pattern of economic exploitation. Famine racked the subcontinent many times, including at least two major famines in Bengal. The British Raj was politically organized into seventeen provinces of which Bengal was one of the most significant. For a brief period in the early twentieth century, an abortive attempt was made to divide Bengal into two zones, West Bengal and East Bengal & Assam.
Bengal Renaissance



Raja Ram Mohan Roy is regarded as the "Father of the Bengal Renaissance."


Rabindranath Tagore is Asia's first Nobel laureate and composer of Jana Gana Mana the national anthem of India as well as Amar Shonar Bangla the national anthem of Bangladesh.


The Bengal Renaissance refers to a social reform movement during the nineteenth and early twentieth centuries in Bengal during the period of British rule. The Bengal renaissance can be said to have started with Raja Ram Mohan Roy (1775–1833)[5] and ended with Rabindranath Tagore (1861–1941). Nineteenth century Bengal was a unique blend of religious and social reformers, scholars, literary giants, journalists, patriotic orators and scientists, all merging to form the image of a renaissance, and marked the transition from the 'medieval' to the 'modern'[6].

Creation of Pakistan
As the independence movement throughout British-controlled India began in the late nineteenth century gained momentum during the twentieth century, Bengali politicians played an active role in Mohandas Gandhi's Congress Party and Mohammad Ali Jinnah's Muslim League, exposing the opposing forces of ethnic and religious nationalism. By exploiting the latter, the British probably intended to distract the independence movement, for example by partitioning Bengal in 1905 along religious lines. The split only lasted for seven years.
At first the Muslim League sought only to ensure minority rights in the future nation. In 1940 the Muslim League passed the Lahore Resolution which envisaged one or more Muslim majority states in South Asia. Non-negotiable was the inclusion of the Muslim parts of Punjab and Bengal in these proposed states. The stakes grew as a new Viceroy Lord Mountbatten of Burma was appointed expressly for the purpose of effecting a graceful British exit. Communal violence in Noakhali and Calcutta sparked a surge in support for the Muslim League, which won a majority of Bengal's Muslim seats in the 1946 election. Accusations have been made that Hindu and Muslim nationalist instigators were involved in the latter incident. At the last moment Huseyn Shaheed Suhrawardy and Sarat Chandra Bose came up with the idea of an independent and unified Bengal state, which was endorsed by Jinnah. This idea was vetoed by the Indian National Congress.
British India was partitioned and the independent states of India and Pakistan were created in 1947; the region of Bengal was divided along religious lines. The predominantly Muslim eastern half of Bengal became the East Bengal (later renamed East Pakistan) state of Pakistan and 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. In 1956 a constitution was at last adopted, making the country an "Islamic republic within the Commonwealth". The nascent democratic institutions foundered in the face of military intervention in 1958, 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.
When Mohammad Ali Jinnah died in September 1948, Khwaja Nazimuddin became the Governor General of Pakistan while Nurul Amin was appointed the Chief Minister of East Bengal. Nurul Amin continued as the Chief Minister of East Bengal until 2 April 1954. The abolition of the Zamindari system in East Bengal (1950) and the Language Movement were two most important events during his tenure.
The Bengali Language Movement


Bengali Language Movement procession march held on 21 February 1952 in Dhaka.
The question as to what would be the state language of Pakistan was raised immediately after its creation. The central leaders and the Urdu-speaking intellectuals of Pakistan declared that Urdu would be the state language of Pakistan, just as Hindi was the state language of India. However, Bengalis strongly resisted attempts to impose Urdu as the sole official language of Pakistan, and the students and intellectuals of East Pakistan, demanded that Bengali (Bangla) be made one of the state languages, arguing that it was in any case the native language of the majority (54% native speakers as opposed to 7% native Urdu speakers) in the whole of Pakistan.
The Bengali Language Movement began in 1948 and reached its climax in a demonstration on 21 February 1952 at which several demonstrators were killed by police. After a lot of controversy over the language issue, the final demand from East Pakistan was that Bangla must be the official language and the medium of instruction in East Pakistan, and that for the central government it would be one of the state languages along with Urdu. The first movement on this issue was mobilised by Tamaddun Majlish headed by Professor Abul Kashem. Gradually many other non-communal and progressive organisations joined the movement, which finally turned into a mass movement, and ended in the adoption of Bengali as one of the state languages of Pakistan.

Politics: 1954 - 1970
The first election for East Bengal Provincial Assembly was held between 8 March and 12 March 1954. The Awami Muslim League, Krishak-Sramik Party and Nezam-e-Islam formed the United Front, on the basis of 21-points agenda.
Notable pledges contained in the 21-points were:
• making Bengali one of the main state languages
• autonomy for the province
• reforms in education
• independence of the judiciary
• making the legislative assembly effective
The United Front won 215 out of 237 Muslim seats in the election. The ruling Muslim League got only nine seats. Khilafat-E-Rabbani Party got one, while the independents got twelve seats. Later, seven independent members joined the United Front while one joined the Muslim League.
There were numerous reasons for the debacle of the Muslim League. Above all, the Muslim League regime angered all sections of the people of Bengal by opposing the demand for recognition of Bangla as one of the state languages and by ordering the massacre of 1952.
The United Front got the opportunity to form the provincial government after winning absolute majority in the 1954 election. Of the 222 United Front seats, the Awami Muslim League had won 142, Krishak-Sramik Party 48, Nezam-i-Islam 19, and Ganatantri Dal 13.
The major leaders of the United Front were Huseyn Shaheed Suhrawardy and Maulana Abdul Hamid Khan Bhasani of Awami Muslim League and A. K. Fazlul Huq of Krishak-Sramik Party. Suhrawardy and Bhasani did not take part in the election and Fazlul Huq was invited to form the government. But a rift surfaced at the very outset on the question of formation of the cabinet. The unity and solidarity among the component parties of the United Front soon evaporated. Finally, on 15 May, Fazlul Huq arrived at an understanding with the Awami Muslim League and formed a 14-member cabinet with five members from that party.
But this cabinet lasted for only fourteen days. The Muslim League could not concede defeat in the elections in good grace. So, they resorted to conspiracies to dismiss the United Front government. In the third week of May, there were bloody riots between Bengali and non-Bengali workers in different mills and factories of East Bengal. The United Front government was blamed for failing to control the law and order situation in the province.
Fazlul Huq was then quoted in an interview taken by The New York Times correspondent John P Callaghan and published in a distorted form that he wanted the independence of East Bengal. Finally, on 29 May 1954, the United Front government was dismissed by the central government and Governor's rule was imposed in the province, which lasted till 2 June 1955.
Curiously enough within two months of his sacking, Fazlul Huq was appointed the central Home Minister. As Home Minister, Fazlul Huq utilised his influence to bring his party to power in East Bengal. Naturally, the United Front broke up. The Muslim members of the United Front split into two groups. In 1955 the Awami Muslim League adopted the path of secularism and non-communalism, erased the word 'Muslim' from its nomenclature and adopted the name "Awami League".[7]
Great differences began developing between the two wings of Pakistan. While the west had a minority share of Pakistan's total population, it had the largest share of revenue allocation, industrial development, agricultural reforms and civil development projects. Pakistan's military and civil services were dominated by the fair-skinned, Persian-cultured Punjabis and Afghans. Only one regiment in the Pakistani Army was Bengali. And many Bengali Pakistanis could not share the natural enthusiasm for the Kashmir issue, which they felt was leaving East Pakistan more vulnerable and threatened as a result.

Independence




Illustration showing military units and troop movements during the war.
After the Awami League won all the East Pakistan seats of the Pakistan's National Assembly in the 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.
On March 2, 1971, a group of students, led by A S M Abdur Rob, student leader & VP of DUCSU (Dhaka University Central Students Union) raised the new (proposed) flag of Bangla under the direction of Swadhin Bangla.
On March 3, 1971, student leader Sahjahan Siraj read the Sadhinotar Ishtehar (Declaration of independence) at Paltan Maidan in front of Bangabandhu Shaikh Mujib along with student and public gathering.
On March 7, there was a historical public gathering in Paltan Maidan to hear the guideline for the revolution and independence from Shaikh Mujib, the frontier leader of movement that time. Although he avoided the direct speech of independence as the talks were still underway, he influenced the mob to prepare for the separation war. The speech is still considered a key moment in the war of liberation, and is remembered for the phrase, "Ebarer Shongram Muktir Shongram, Ebarer Shongram Shadhinotar Shongram...." ("This time, the revolution is for freedom; this time, the revolution is for liberation....")
Formal Declaration of Independence
After the military crackdown by the Pakistan army began on the night of March 25, 1971 Bangabandhu Sheikh Mujibur Rahman was arrested and the political leaders dispersed, mostly fleeing to neighbouring India where they organized a provisional government afterwards. Before being held up by the Pakistani Army Sheikh Mujibur Rahman gave a hand note of the declaration of the independence of Bangladesh and it was circulated amongst people and transmitted by the then East Pakistan Rifles' wireless transmitter. Bengali Army Major Zia-Ur-Rahman captured Kalurghat Radio Station in Chittagong and read the declaration of independence of Bangladesh. On 27th march Major Zia read the declaration of independence on behalf of Sheikh Mujibur Rahman, "I, Major Zia-ur-Rahman, who hereby declare the independence of Bangladesh, on behalf of our great national leader Bangabandhu Sheikh Mujibur Rahman".
The Provisional Government of the People's Republic of Bangladesh was formed in Meherpur, (later renamed as Mujibnagar a place adjacent to the Indian Border). Sheikh Mujibur Rahman was announced to be the head of the state. Tajuddin Ahmed became the prime minister of the government. There the war plan was sketched. A war force was established named "Muktibahini". M. A. G. Osmani was assigned as the Chief of the force. The land sketched into 11 sectors under 11 sector commanders. Along with this sectors on the later part of the war Three special forces were formed namely Z Force, S Force and K Force. These three forces name were derived from the initial letter of the commandar's name. The training and most of the arms-ammunitions were arranged by the Meherpur government which were supported by India. As fighting grew between the Pakistan Army and the Bengali Mukti Bahini ("freedom fighters"), an estimated ten million Bengalis, mainly Hindus, sought refuge in the Indian states of Assam, Tripura and West Bengal.
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 on December 3, 1971, India intervened on the side of the Bangladeshis. On December 16, 1971, Pakistani forces surrendered, and Bangla Desh ("Country of Bangla") was finally established the following day. The new country changed its name to Bangladesh on January 11, 1972 and became a parliamentary democracy under a constitution. Shortly thereafter on March 19 Bangladesh signed a friendship treaty with India.
Post-independence
Sheikh Mujibur Rahman, 1972-75
Sheikh Mujibur Rahman 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 1972 constitution adopted as state policy the Awami League (AL) four basic principles of nationalism, secularism, socialism, and democracy.[8]
The first parliamentary elections were held in March 1973, with the Awami League winning a massive majority. The new Bangladesh government focused on relief, rehabilitation, and reconstruction of the economy and society. In December 1974, in the face of continuing economic deterioration and mounting civil disorder, Mujib proclaimed a state of emergency, limited the powers of the legislative and judicial branches, banned all the newspaper except four government supported papers, and introduced one-party system baning all the other parties.
Despite some improvement in the economic situation during the first half of 1975, criticism of Mujib grew. In August 1975, Mujib, and most of his family, were assassinated by mid-level army officers. A new government, headed by former Mujib associate Khandakar Moshtaque Ahmed, was formed.[8]
Ziaur Rahman, 1975-81
Successive military coups resulted in the emergence of Army Chief of Staff Gen. Ziaur Rahman ("Zia") as strongman. In the historic 7 November 1975, "Jatiyo Biplob O Shanghoti Dibosh" the army captured the power freed Major Zia. He pledged the army's support to the civilian government headed by President Chief Justice Sayem. Acting at Zia's behest, Sayem dissolved Parliament, and instituted the Martial Law Administration (MLA).[8]
In November 1976, Zia became Chief Martial Law Administrator (CMLA) and assumed the presidency upon Sayem's forced retirement five months later, promising national elections in 1978.[8]
As President, Zia announced a 19-point program of economic reform and began dismantling the MLA. Zia won a five-year term in June 1978 elections, with 76% of the vote. Democracy and constitutional order were fully restored when the ban on political parties was lifted, new parliamentary elections were held in February 1979. The AL and the Bangladesh Nationalist Party (BNP), founded by Zia, emerged as the two major parties.[8]
In May 1981, Zia was assassinated in Chittagong by dissident elements of the military. The conspirators were either taken into custody or killed. Vice President Justice Abdus Sattar was sworn in as acting president, and elected president as the BNP's candidate six months later. Sattar followed the policies of his predecessor and retained essentially the same cabinet.[8]
Hussain Mohammed Ershad, 1982-90
In March 1982 Army Chief of Staff Lt. Gen. H.M. Ershad suspended the constitution and declared martial law citing pervasive corruption, ineffectual government, and economic mismanagement. The following year, Ershad assumed the presidency, and won overwhelming public support for his regime in a national referendum in March 1985, although turnout was small. Political life was liberalized through 1985 and 1986, and the Jatiya (National) Party was established as Ershad’s vehicle for the transition back to democracy.[8]
Parliamentary elections were held in May 1986, but were boycotted by the BNP, now led by President Zia's widow, Begum Khaleda Zia. 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.[8]
Ershad retired from military service in preparation for the presidential elections in October 1986, and won 84% of the vote. Protesting that martial law was still in effect, both the BNP and the AL refused to put up opposing candidates.[8] In November 1986, martial law was lifted, and the opposition parties took their elected seats in the National Assembly.[8]
In July 1987, after the government hastily pushed through a bill to include military representation on local administrative councils, the opposition walked out of Parliament. As the opposition organized protest marches and nationwide strikes, the government arrested scores of opposition activists. After declaring a state of emergency, Ershad dissolved Parliament and scheduled fresh elections for March 1988.[8]
The elections were held despite an opposition boycott, and the ruling Jatiya Party won 251 of the 300 seats. The Parliament passed a large number of bills, including in June 1988 a controversial constitutional amendment making Islam Bangladesh's state religion.[8]
On December 6, 1990, following general strikes, increased campus protests, public rallies, and a general disintegration of law and order,[8] Ershad resigned. On February 27, 1991, 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.[8]
Khaleda Zia, 1991-96
BNP won a plurality of seats and formed a government with Khaleda Zia, widow of Ziaur Rahman, becoming prime minister. The electorate approved changes to the constitution, formally re-creating a \In March 1994, controversy over a parliamentary by-election, which the opposition claimed the government had rigged, led to general strikes and an indefinite boycott of Parliament by the opposition. In late December 1994, the opposition resigned en masse from Parliament, and pledged to boycott national elections scheduled for February 15, 1996.[8]
In February, Khaleda Zia was re-elected by a landslide in voting boycotted by the three main opposition parties. In March 1996, following escalating political turmoil, the Parliament amended the constitution to allow a neutral caretaker government to assume power and conduct new parliamentary elections.
Sheikh Hasina, 1996-2001
Elections were held in June 1996 which were found by international and domestic election observers to be free and fair. The Awami League won a plurality of the seats, and formed the government with support from the Jatiya Party of deposed president Ershad. AL leader Sheikh Hasina became Prime Minister.[8]
In June 1999, the BNP and other opposition parties again began to boycott Parliament, and stage nationwide general strikes. A four-party opposition alliance formed at the beginning of 1999 announced that it would boycott parliamentary by-elections and local government.
Four Party Aliiance led by BNP, 2001-2006
The four-party alliance led by the Bangladesh Nationalist Party (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.[8]
An grenade attack on a rally of Sheikh Hasina killed 23 people on August 21, 2004. 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. Hundreds of senior and mid-level JMB leaders were arrested.[8]
In February 2006, after sporadic boycotts, 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. Dialogue between the Secretaries General of the main ruling and opposition parties failed to sort out the electoral reform issues.[8]
In July 2001, the Awami League government stepped down to allow a caretaker government to preside over parliamentary elections. In August, Khaleda Zia and Sheikh Hasina agreed 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 end
Caretaker Government, Oct 2006-Jan 2009
Fakhruddin Ahmed
On January 3, 2007, the Awami League announced it would boycott the January 22 parliamentary elections. The AL planned a series of country-wide general strikes and transportation blockades.[8]
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. The government announced elections would occur in late 2008.[8] As of November 19, 2008, elections were scheduled for December 8, 2008.[9]
In the summer of 2007 the government arrested Sheikh Hasina and Khaleda Zia, Bangladesh's two most influential political leaders, on charges of corruption. Hasina and Zia have challenged the cases filed against them under the Emergency Power Rules, which deny the accused the right to bail. While the cases are under judicial review, the two leaders continue to be imprisoned as of March 2008.[8]
Grand Alliance January 2009-present
On 19 November 2008 Awami League & Jatiya Party agreed to contest the elections jointly under the Caretaker Government to be held on 29 December 2008. Out of the 300 Constituencies in the Parliament, Ershad's Jatiya Party will contest from 49 seats and Awami League and members of a leftist wing Fourteen Party Coalition from the rest 250 seats.[10] Thus the Grand Alliance emerged in Bangladesh; known as Mohajote in Bangla
On December 29, 2008 Bangladesh went to the polls and the nation elected the Grand Alliance which was led by Sheikh Hasina's Awami League and backed by Hussain Mohammed Ershad's Jatiya Party. On the other hand Khaleda Zia's BNP-led Four Party Alliance plagued by allegations of Khaleda Zia's [11][12] and her infamous son Tareq Rahman's corruption allegations [13][14][15], suffered the most embarrassing defeat ever in Bangladesh's history.
Sheikh Hasina became Prime Minister and formed the government and a cabinet which included ministers from Jatiya Party although any post for Hussain Mohammed Ershad, is yet to be decided as the earlier agreed Presidency seems elusive.
The mutiny of borderguards (BDR) took place from 25 to 27 February 2009. More than a thousand BDR soldiers took over the BDR headquarters, and held many of their officers hostage. By the second day fighting spread to 12 other towns and cities.[16][17] The mutiny ended as the mutineers surrendered their arms and released the hostages[18] after a series of discussions and negotiations with the government.[19] 52 army died in the incident.



Chapter-2
Organ of Bangladesh Government
Bangladesh became one of the large nation states in 1971 when it seceded from Pakistan. Prior to the creation of Pakistan in 1947, modern-day Bangladesh was part of ancient, classical, medieval and colonial India. Since independence, the government has experienced periods of democratic and military rule. The founding leader of the country and its first president was Sheikh Mujibur Rahman. His daughter Sheikh Hasina Wazed is currently the prime minister, as leader of the Awami League. The opposition Bangladesh Nationalist Party is led by Begum Khaleda Zia, who is the widow of the revered freedom fighter and former president Ziaur Rahman.
Bangladesh at a glance
Facts and Figures
Name of the Country : People's Republic of Bangladesh
Conventional short form : Bangladesh
Bangladesh : Country Map

Independence Day : 26 March, 1971
Victory Day : 16 December 1971 and commemorates the official creation of the state of Bangladesh.
National Flag : bottle green with a large red disc slightly to the hoist side of center; the red disc represents the sun rising over Bangladesh and the blood shed to achieve independence; the green field symbolizes the lushness of the land of Bangladesh. Flag ratio 10:6

View - Official specification of the National Flag

Legal system : based on English common law.
Suffrage : 18 years of age; universal.
Capital City : Dhaka.
Nationality : Bangladeshi.
Official Currency : Taka: (Currency Code: BDT) Denominations of currency in
force: Notes: 500: 100: 50: 20: 10: 5: 2: Coins: 5: 2: 1
Fiscal Year : 1 July - 30 June.
Languages : Bengali (official), English is widely spoken and used.
Int. Mother Language Day : 21st February

Religions : Islam, Hinduism, Christianity, Buddhism and others.
National Anthem : Amar Sonar Bangla (My Golden Bengal) First 10 lines.

Local Time : GMT + 6 hours.
Official Monogram :


Military : Army, Navy and Air Force, Coastal Guard, Paramilitary Forces (BDR, Bangladesh Ansar, Village Defense Parties, Armed Police Battalions, National Cadet Corps)


Geography
Geographical Location : In South Asia; between 20º 34' and 26º 38' North latitude and between 88º 01' and 92° 41' East longitude; consists of flat fertile alluvial land.
Area and Formation : 143,998 square km.
Land: 133.910 sq km (51,703 sq miles) and Water: 10,088 sq km; mostly flat fertile alluvial land replete with mangrove forests and tropical rain forests with a few hilly areas in the east and southeast. The highest point in the country stands in the Chittagong Hill Tracts (Keokradong) reaching 4,035 ft. [1,230 m.] Bangladesh is a land of rivers; the three major rivers are Padma, Meghna and Jamuna.

The total forest area covers about 9% of the land area. The country produces timber, bamboo and cane. Bamboos grow in almost all areas but quality timber grows mostly in the valleys. Among the timber sal, gamari, chaplish, telsu, jarui, teak, garjan, chandon and sundori are important. Sundari trees grow in the Sundarbans located in the South Western part of the country bordering the Bay of Bengal.

Varieties of wild animals are found in the forest areas. Sundarban is the home of the world famous “Royal Bengal Tiger”. Of other animals’ elephants, bears, deer, monkeys, boars, leopard and crocodiles are worth mentioning. A few hundred species and sub-species of bird are found in the country. Some of them are seasonal and migratory types.

Except the hilly regions the Northeast and the Southeast, some areas of high lands in the North and North Western part, the country consists of low, flat and fertile land. A network of rivers of which the Padma, the Jamuna, the Teesta, the Brahmaputra, the Surma, the Meghna and the Karnaphuli are important, and their tributaries numbering about 230 with a total length of about 24140 km. Covering the country flow down to the Bay of Bengal. Heavy silts deposited by rivers during the rainy season are thus continuously enriching the alluvial soil.
Location & Boundary : Southern Asia, bordering the Bay of Bengal, between Burma and India. North - India (W. Bengal and Meghalaya); West - India (W. Bengal); East - India (Tripura and Assam) and Myanmar; South - Bay of Bengal.
Land boundaries
border countries : Total: 4,246 km
Burma 193 km, India 4,053 km
Coastline : 580 km.
Maritime claims : territorial sea: 12 nautical miles
continental shelf: up to the outer limits of the continental margin
contiguous zone: 18 nm
exclusive economic zone: 200 nautical miles
Resources (Natural) : natural gas, coal, hard rock, lime stones, ceramic clay, glass sand timber and arable land.
Climate : Bangladesh has a tropical monsoon climate. Rainy season of the southwest monsoon from June to September the rainfall is heavy and frequent ranges between 1,500 -- 2,500 mm/60--100 inches of rain a year. The cool season starts from November to February and hot season from March until early June. Humidity is high.
Rainfall : Monsoon - Average Rainfall: 1194 mm to 3454 mm; 120-345 cm (47"- 136") (Average during the monsoon)
Average Temperature : Winter (November - February)
Temperature: Maximum 28º C
Minimum 09º C

Summer (April - September)
Temperature: Maximum 35º C
Minimum 21º C
Humidity : Highest-98 % (July & August)


Economy Scale
GDP : purchasing power parity - $336.7 billion (2006 est.)
GDP - real growth rate : 6.6% (2006 est.)
GDP - per capita : purchasing power parity - $2,300 (2006 est.)
GDP composition : agriculture: 19.9%
industry: 20.6%
services: 59.5% (2006 est.)
Industrial growth rate : 6.5% (2004 est.)
Labor force (FY95-96) : agriculture: 63%
Service: 26%
Industry: 11%
Agriculture - products : rice, wheat, jute, tea, wheat, sugarcane, potatoes, tobacco, pulses, oilseeds, spices, fruit, vegetables, bananas, mangoes, coconut, beef, milk and poultry
Industries : cotton textiles, jute, garments, tea, paper, newsprint, cement, chemical fertilizer, light engineering, electric cables, pharmaceuticals and chemical, leather, fish and sugar.
Exports : $11.17 billion (2006 est.)
Exports commodities : garments, raw jute and jute goods, tea, leather, frozen fish and seafood, naphtha, furnace oil, urea, ceramic products.
Imports : $13.77 billion (2006 est.)
Imports commodities : machinery and equipment, chemicals, iron and steel, cottons textiles, foodstuffs, crude petroleum, fertilizer, yarn, oil seed, clinker.
Foreign exchange
& gold reserves : $4.7 billion (2006 est.)



Transport & Communication
Sea Port : Chittagong and Mongla (Khulna)
River Port : Narayangonj, Barisal, Khulna, Chandpur, Bhairab Bazar,Sirajgonj.
Land Port : Benapole, Tamabil, Burimari, Bangla Hilli, Akharura, Darsana, Bhomra, Halurgha, Birol, Bibir Bazar, Sonamasjid, and Teknaf.
Railways : total: 2,768 km.
broad gauge: 946 km 1.676-m gauge
narrow gauge: 1,822 km 1.000-m gauge (2003)
Roads : total: 239,226 km
paved: 22,726 km
unpaved: 216,500 km (2003)
Waterways : 8,372 km (includes 3,060 km main cargo routes) (2006)
Major Rivers : Padma, Megna, Jumuna, Surma: Brahamaputra: Dhaleswari: Rupsha: Posur: Sangu: Karnaphuli: Teesta: (Total 230 rivers including tributaries)
Airports : 10 (ten): 3 International and 7 domestic
Telephone : Land base: 1,198,397 (Jan 2008)
Cell Phone : 37.55 Million (Feb 2008)
Calling Country Code : +88
Internet Service Provider : 60 Source - ISP Association.

Internet users : 4.5 million (August 2007)
Internet TLD : .bd is the Internet country code top-level domain (cc LTD) for Bangladesh. Administered by the Ministry of Post & Telecommunications. Bangladesh Government



Population
Population : 150,448,339 (July 2007)
Sex Ratio : Total population: 1.05 males(s)/female(s)
Structure (Age) : 0-14 years: 33.1% (male: 25,639,640; female: 24,174,937)
15-64 years: 63.4% (male: 48,659,087; female: 46,712,687)
65 years and over: 3.5% (male: 2,818,638; female: 2,443,350)
Population growth rate : 2.056% (2007).
Birth rate : 29.36 births/1,000 population (2007 est.)
Death rate : 8.13 deaths/1,000 population (2007 est.)
Infant mortality rate : total: 59.12 deaths/1,000 live births (2007 est.)
female: 58.05 deaths/1,000 live births
male: 60.13 deaths/1,000 live births
Life expectancy at birth : total population: 62.84 years (2007 est.)
Literacy : age 15 and above can read and write: 43.1% of total population.
ratio: male: 53.9%: female: 31.8% (2003 est.)



Divisions 6
Districts 64
Area 147572 sq km
Thana 507
Union 6888
Village 79393
Municipality 223



The State Organs:

The People's Republic of Bangladesh is a unitary independent and sovereign republic comprising three basic organs: the executive, the legislature, and the judiciary. The President is the Head of State and is elected by the members of parliament. The President act in accordance with the advice of the Prime Minister and the supreme command of the Armed Forces vests with him.
The republic comprises three basic organs

1. Legislative Branch

2. Executive Branch


3. Judicial Branch

1. Legislative Branch :
Unicameral National Parliament (Jatiya Sangsad); 300 seats elected by popular vote from single territorial constituencies (the constitutional amendment reserving 30 seats for women over and above the 300 regular parliament); Elected members serve for a period of five-year terms. Last elections held on October 1, 2001.
The parliament or Jatiya Sangsad has 300 general and 45 reserved seats for the women. The general members are directly elected. The tenure of the parliament is five years. The term of the previous national parliament expired on 27 October 2006.

2. Executive Branch:
The Executive power of the Republic is exercised by or on the advice of the Prime Minister who commands the support of the majority members of parliament and is appointed by the President. Other ministers, state ministers and deputy ministers are appointed as per wish of the Prime Minister. The Prime Minister nominates the cabinet members from among parliament members and up to one tenths of the total from outside the parliament. The cabinet is collectively responsible to the parliament. The government is unitary in structure and parliamentary in form.
President shall be the Chief of State; elected by members of National Parliament in accordance with law for a term of five-year from the date on which he enters upon his office. The President as head of state, takes precedence over all other persons in the state, and exercises the powers and performs the duties conferred and imposed on him by the constitution and by any other law. No person can hold office as President for more than two terms, whether or not the terms are consecutive. If a vacancy occurs in the office of President or if the President is unable to discharge the functions of his office on account of absence, illness or any other cause, the Speaker of the Parliament discharges those functions until a President is elected or until the President resumes the functions of his office.
The supreme command of the defense services vests in the President. No war can be declared and the Republic can not participate in any war except with the assent of Parliament.
The President appoints as Prime Minister a member of Parliament who appears to him to command the support of the majority of the members of parliament. The appointment of Prime Minister and other Ministers and of the Ministers of State and Deputy Ministers is made by the President provided that not less than nine-tenths of their numbers are appointed from among members of parliament and not more than one-tenths of their number may be chosen from among persons qualified for election as members of parliament.
The President acts in accordance with the advice of the Prime Minister. There shall be a cabinet for Bangladesh having the Prime Minister at its head and comprising also such other Ministers as the Prime Minister may from time to time designate. The executive power of the Republic is exercised by or on the authority of the Prime Minister.
The president's duties are normally ceremonial, but with the 13th amendment to the constitution ["Caretaker Government Amendment"], the president's role becomes significant at times when Parliament is dissolved and a caretaker government is installed - at presidential direction - to supervise the elections.) President of Republic of Bangladesh: Iajuddin Ahmed since September 2002.
Head of Government: Prime Minister; the leader of the party that wins the most seats is usually appointed prime minister by the president. Prime Minister of Republic of Bangladesh: Begum Khaleda ZIA (October 2001).
Cabinet: members are selected by the Prime Minister and appointed by the President.

3. Judicial Branch:
The Supreme Court of Bangladesh is the highest judicial organ in the country and comprises the Appellate Division and the High Court Division, The Supreme Court consists of the Chief Justice and a number of other Judges. The Chief Justice and the Judges appointed to the Appellate Division sit only in that division and other Judges sit in the High Court Division. (The Chief justices and other judges are appointed by the president).
At the apex of the country's judiciary stands the Supreme Court.It consists of the High Court Division and the Appellate Division. The Supreme Court serves as the guardian of the Constitution and enforces the fundamental rights of the citizens.


There are subordinate courts at district and upazila levels as well as special courts and tribunals such as the administrative tribunal, family courts, and labor tribunal, and land, commercial, municipal and marine courts, tribunals for checking repression on women and children and for speedy trial of cases related to terrorism.


4. Public Administration:
Bangladesh has a unitary form of government. The President is the Head of State and the Prime Minister is the Head of Government. The Prime Minister is assisted by a Council of Ministers. The permanent office-in-charge of the Ministries / Divisions is designated as Secretary who belongs to the Civil Service.
For administrative purposes, the country is divided into six divisions, each headed by a Divisional Commissioner. There are 64 districts under the 6 Divisions. The district is administered by a Deputy Commissioner who is assisted by Additional Deputy Commissioners. The District has a Zilla Parishad headed by a Chairman. The Districts are divided into Thanas headed by a Thana Nirbahi Officer. Currently, there are 496 Thanas of which 36 are in the Metropolitan Cities.
The head of the police administration in the country is the Inspector General of Police (IGP). The divisional police administration is headed by the Deputy Inspector General of Police (DIG) and the district police administration is headed by the Superintendent of Police (SP) and there is an Inspector of Police in each Thana. The Superintendents of Police (SP) and the Inspectors of Police work in close cooperation with the Deputy Commissioners and Thana Nirbahi Officers for maintenance of law and order under their respective jurisdictions. The Chief Police Officers in Dhaka, Chittagong, Khulna and Rajshahi city are designated as Commissioner of Metropolitan Police.


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Chapter-3

The Judiciary of Bangladesh

Introduction:
At the apex of the country's judiciary stands the Supreme Court. It consists of the High Court Division and the Appellate Division. The Supreme Court serves as the guardian of the Constitution and enforces the fundamental rights of the citizens.


There are subordinate courts at district and upazila levels as well as special courts and tribunals such as the administrative tribunal, family courts, and labor tribunal, and land, commercial, municipal and marine courts, tribunals for checking repression on women and children and for speedy trial of cases related to terrorism.

The Supreme Court

The Supreme Court of Bangladesh comprises the Appellate Division and the High Court Division. It is the apex Court of the country and other Courts and Tribunals are subordinate to it.

a) The Appellate Division
The Appellate Division shall have Jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it.

b) The High Court Division
The High Court Division, though a Division of the Supreme Court, is for all practical purposes, an independent court with its powers, functions and jurisdictions well defined and determined under the Constitution and different laws. It has both appellate as well as original jurisdiction. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. It has original jurisdiction to hear Writ Applications under article 102 of the Constitution, which is known as extra ordinary constitutional jurisdiction. It has further original jurisdiction, inter alia, in respect of company and admiralty matters under statutes. The High Court Division, in special circumstances, has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 101 of the Constitution. The High Court Division shall have Superintendence and control over all Courts and tribunals subordinate to it.

• The Subordinate Courts and Tribunals

There are a wide variety of subordinate courts and tribunals. Such courts and tribunals are created by some relevant statutes. All their powers, functions and jurisdictions are well determined by the respective statutes. These are the basic courts in the system of the judiciary of Bangladesh. The major bulk of the cases, both civil and criminal, are tried and heard in such courts and tribunals. Certain tribunals are termed as administrative tribunals, Nari-o-Shishu Nirjato Daman Tribunals, Special Tribunals etc. Such courts and tribunals spread all over the country at district levels. The subordinate courts in Bangladesh can be divided in two broad classes, namely, civil courts and criminal courts.


i) Civil Courts

The civil courts are created under the Civil Courts Act of 1887. The Act provides for five tiers of civil courts in a district, which bottom-up are
i) Court of Assistant Judge,
ii) Court of Senior Assistant Judge,
iii) Court of Joint District Judge,
iv) Court of Additional District Judge and
v) Court of District Judge.

The first three are courts of first instances with powers, functions and jurisdictions in respect of subject matter, territory and pecuniary value determined by or under statutes. The rest two are generally courts of appeal in civil matters. Now the civil suits are rapidly disclose in the court

ii) Criminal Courts
1. Courts of Sessions
2. Courts of Metropolitan Sessions
3. Special courts/tribunals (Criminal)

4. Magistrate of Metropolitan Magistrate
• Courts of Chief Metropolitan Magistrate (CMM Court)
• Courts of Additional Chief Metropolitan Magistrate
• Courts of Metropolitan Magistrate
• Second Class Magistrate Courts
• Third Class Magistrate Courts

5. Courts of Magistrate
o Courts of Chief Judicial Magistrate
o Courts of Additional Chief Judicial Magistrate
o Courts of First Class Magistrate
o Second Class Magistrate Courts
o Third Class Magistrate Courts


iii) The Special Courts and Tribunals
The Special Courts and Tribunals, including – in relation to civil matters --
• the Administrative Tribunal,
• the Environment Court,
• the Family Court,
• the Juvenile Court,
• the Labour Court and
• the Labour Appellate Tribunal,
• the Money Loans Court,
• the Court of Settlement and
• the Taxes Appellate Tribunal, and

In relation to criminal cases --
1. The Special Tribunal on Violence against Women and Children and
2. The Special Tribunal for Speedy Trials.


The persons presiding over all subordinate courts (other than Magistrates’ Courts) are persons in judicial service.



Composition and Control of the Lower Judiciary


While the Constitution affirms the principle of independence of the judiciary and empowers the High Court to exercise superintendence and control over all subordinate courts and tribunals, effective executive controls remain in place over the lower judiciary in respect of their security of tenure, remuneration and administration.

The President is empowered to make appointments both of persons in judicial service and of magistrates exercising judicial functions ‘in accordance with Rules made by him in this behalf’ (Art. 115). Under the Constitution as amended, there is no requirement of obtaining the Supreme Court’s prior recommendation, or of consulting the Supreme Court and Public Service Commission regarding the framing of any such Rules.


Until 1999, and the Masdar judgment (see below), the President was responsible for appointing persons in judicial service from among civil servants recruited to the BCS (Judicial) Cadre, and Magistrates from the BCS (Admin) cadre. By delegation of the President’s powers under the Constitution, the Ministry of Law was responsible for initiating the process with regard to appointments, and also for transfer, promotion, leave and discipline of the officers of the judicial service.6 After preparing the files, the Ministry would send these onto the Supreme Court in purported fulfilment of the requirement of consultation under Art. 116, and the General Administrative Committee of the Supreme Court, comprising all the judges of the Supreme Court (see High Court Rules) would then usually provide routine approval of the same. Following the Masdar judgment, judicial officers are now being selected through the newly established Judicial Service Commission to posts in the Bangladesh Judicial Service, wholly separate and distinct from the BCS.



The President is also responsible for appointing Magistrates from the BCS (Administration) cadre. Here, by delegation of the President’s powers under the Constitution, the Ministry of Establishment was (and is) responsible fo r the recruitment of Magistrates. Magistrates are recruited through examinations held by the Public Service Commisson for posts in the Bangladesh Civil Service (Administration) Cadre, and only on qualification and selection are appointed to these posts by the President.


Other than persons in judicial service or magistrates, the subordinate courts also include various support staff. It is estimated that their numbers may currently stand at around 3600. In line with the general provisions that the posts of 3rd and 4th Class government employees are not transferable; these support personnel in the subordinate courts are recruited and promoted by the respective District Judge.


The control (including the power of posting, promotion and granting of leave) and discipline of the subordinate courts now vests in the President, but subject to his exercising it in consultation with the Supreme Court.



In many cases of injustice the Deputy Co mmissioner (who is also the District Magistrate) refuses to get involved because s/he fears that [by acting against the Government’s interests] s/he will get transferred to a remote place like Khagrachari or Bandarban. The Government thus controls the bure aucracy by controlling their promotion, tenure of service etc. The bureaucracy is always busy keeping the government happy. How can the bureaucracy perform a judicial role in this context? NGO Activist




There are no existing guidelines for posting and promotion. The Ministry is thus able to arbitrary exercise its powers, using the carrot of favourable postings and promotions on the one hand, including (for persons in judicial service) on deputation to various Ministries etc, and the stick of postings to remote regions or simple obstruction of ordinary career advancement on the other to manipulate decisions by the lower judiciary on a day to day basis.


Functions of the Lower Judiciary:


In current practice, persons in judicial service do not carry out purely judicial functions, while magistrates do not carry out purely executive functions, and there is considerable ‘mixing’ within both categories. This will be clear on reading the section below.


Persons in Judicial Service:

Persons in judicial service are required to preside over civil courts, criminal courts, and the special courts and tribunals. In practice, in almost every district other than Dhaka, given the limited number of judges and the limited amount of court space, the same person presides over both the civil and criminal court.


In addition to carrying out these judicial functions, persons in judicial service may also be posted on ’deputation’ to quasi-judicial, judicial, executive and administrative posts .8 Deputation is a service condition applicable to any person who holds a post



The following are the broad categories of deputation:
(i) Judicial posts in judicial departments (outside the judiciary): Chairman and Member, Court of Settlement; Chairman, Labour Court; President and Member, Income Tax Tribunal; Member, Customs Excise and VAT Appellate Tribunal.
(ii)Executive posts in judicial establishment s/departments: Registrar, Additional Registrar, Deputy Registrar, Assistant Registrar of the Supreme Court of Bangladesh; Registrar of in any Service of the Republic, as defined in Schedule 1 the Bangladesh Civil Service Recruitment Rules, 1981 ("the 1981 Rules”).


Presently, about 15% or about 80-90 of the 780 persons in judicial service are routinely posted outside the judiciary to various Ministries, Departments or Corporations on so called ‘deputation’/secondment. When posted on deputation such persons mostly serve as legal advisors or administrative officers. So for example, their administrative functions while on deputation include serving as Assistant Registrar, Deputy Registrar, Additional Registrar of the Supreme Court or various Tribunals; Solicitor or Administrative Officer at the Solicitor’s Office, the Ministry of Law, the Parliament Secretariat, the Judicial Administration and Training Institute, and the Prime Minister's Secretariat (see Box No. 12 below on Deputation). Currently, about six such persons currently serve in the Ministry of Law as Joint Secretary (1), Deputy Secretary (1) and Senior and Assistant Secretaries (3-4)) together with their support personnel..


Magistrates:

Magistrates perform both judicial and executive functions. Their judicial functions including taking witness statements (Section 164 CrPC), issuing orders of bail, conducting trials of criminal offences, and passing orders of conviction and sentence. They are also responsible for oversight of criminal trials, for example through receiving reports from the police of registration of criminal cases, monitoring the investigation, ensuring remands at proper stages, and expeditious disposal of the cases (see Sections 157, 159 and 173 Cr.PC), In contrast, their executive/administrative functions (not performed by Metropolitan Magistrates who perform only judicial functions) include for example issuance of arrest warrants and search warrants, orders for attachment of property, orders to the police to disperse


Administrative Tribunal; Registrars in the Court of Settlement; Labour Court; Income Tax
Tribunal.
(iii) Executive post s in Ministries and Departments: Secretary, Additional Secretary i n the Ministry of Law, Justice and Parliamentary Affairs, Election Commission, Director, Office of the Prime Minister;
(iv) Posts of law officers in various ministries and departments: Solicitor, Deputy Solicitor, Joint Secretary (Opinion), Deputy Secretary (Op inion) under the Ministry of Law, Justice and Parliamentary Affairs; Assistant Secretary, Deputy Secretary, Law Officer under the Ministry of Works, Local Government, Department of Public Works, Department of Health, Police Head Quarters.


or fire on a public gathering, orders to restrict gatherings of more than five persons in any place, and detention orders under the Special Powers Act, 1974.

Magistrates are initially responsible for general administrative duties, and tend to perform such magisterial functions only for the first 3-10 years of their career with the government, then going onto serve in various ministries or departments.

In every District, the District Magistrate (DM), responsible for the law and order situation is the same person as the Deputy Commissioner who is the highest executive officer.

This situation gives rise to areas where a clear concern could arise that justice is not only not being done but not being seen to be done, as the person judging a particular cause is the same in essence as the person who is responsible for its having arisen. So for example after a warrant of arrest is issued by the DC, an application for bail seeking release of the arrested person is required to be moved before a Magistrate, although he is a subordinate to the DM ( the same person as the DC) and therefore apparently liable to being influenced in his decision making.



CURRENT SITUATION: EXECUTIVE CONTROL OVER LOWER JUDICIARY

The blurred lines between judicial and executive roles and functions of the lower judiciary, and a situation in which they are under the control of the executive, inhibit the transparent and accountable administration of justice, in particular criminal justice. The impact of lack of separation is felt directly in terms of denial of access to justice, as well as flagrant violations of the most fundamental human rights to life, liberty and personal security. It also impacts more widely on governance in general. The inability to ensure enforcement of contracts, c ombined with the inability to ensure legal protection of life and property also acts as a significant disincentive to investment.

As Dieter Conrad notes, ‘The subordinate judiciary has become or is at least widely believed to have become subservient to the executive and amenable to pressures and influences from politically influential people ... Telephones were supposedly installed in judges’ chambers in order to receive ominous calls from influential quarters. …the existence of executive control is in itself a standing invitation to abuse’.

Examples of the consequences of lack of separation are discussed below, first with respect to denial of access to justice, then the lack of accountability of the lower judiciary and finally with regard to the increasing erosion of confidence in the judiciary and the consequent rise in the use of violence to resolve conflicts at various levels.






Denial of Access to Justice


– Criminal Justice System


“The Government in its own interest does not want to separate the judiciary from the administration. If this happened, it would be difficult for the party -in-power to lodge political cases against the opposition. The same is true when the Opposition goes to power. The Government, whichever party is in power , does not want to let go of its control over the criminal justice process because cases against the Opposition need to be manipulated. This is true for all governments, even the democratic ones. Democratic governments are only held accountable to the peop le once every five years. They are at the receiving end when in Opposition but don’t want to implement the separation of the judiciary when in power. “




There are many reported instances in which Magistrates have used their executive powers at the instance of the executive to issue warrants of arrest, to sanction arrest without warrant (under section 54 of the Code of Criminal Procedure) and consequent remands to police custody (under section 167 CrPC), to control and impose restrictions on public gatherings (under section 144 of the CrPC) and to control police firing and use of civil and military force (Sections 128 and 129 of the CrPC).

Overt abuse of executive powers, allegedly at the dictate of government authorities, whether central or local, has been commonplace under various different regimes. In
2006, a ‘trigger-happy’ Magistrate acting on a complaint by a then highly influential advisor to the ruling party issued arrest warrants against five eminent citizens of the country regarding an allegation of criminal defamation.11 The warrants had been issued without any preliminary inquiry and without any evidence that the Magistrate had been satisfied on objective materials that their issuance was merited. In many cases, Magistrates have directed that a person be taken to remand in police custody, where they may be vulnerable to ill-treatment, although no cogent reasons have been provided for why such lengthy remand is necessitated. So for example, in 2004, a well known development organisation’s chief was taken on remand in connection with allegations of sedition, where the only evidence before the Court was that he may have held meetings at his office calling on his staff to prepare posters and festoons to protest price hikes and other government actions. In 2006, protests in rural areas by men and women farmers, peasants and others in Northern Bangladesh demanding equal distribution of electricity to enable irrigation of crops were met by widespread arrests, controls on public gatherings, and ultimately by police firing on unarmed crowds of protestors. In each case, Magistrates were involved first, in sanctioning the arrests, and then once a political settlement was reached, in withdrawing the charges in each case, second in imposing orders prohibiting any public meetings, and finally in sanctioning police firing on the crowds .

Another common cause of complaint (and a corollary to the Magistrate’s arbitrary exercise of powers to initiate prosecution) arises with regard to the Magistrate’s alleged obstruction of investigation or prosecution of incidents involving powerful members of the executive, particularly where the complainant is from a vulnerable or disadvantaged group. corollary of this is that Magistrates may also intervene to progress a case or fast track it where there is



“When there are cases involving politically powerful and influential people - we never get justice from the Magistrate’s Court. Why can it not be equal for all citizens? Why does justice have to depend on you connections and who you know?” NGO Activist






Perhaps the most widespread perception of abuse of power relates to the grant or
denial of bail. This occurs both in ‘politically sensitive’ cases and in more routine matters. Notable are several high profile cases over 2002 to 2005, in which the same individual was falsely implicated in a barrage of criminal cases, and then faced a pattern of repeated denial of bail in circumstances in which such actions were wholly unwarranted. So for example, the head of one of the largest development organisations in the world was arrested on charges of petty corruption, and then ‘shown arrested’ in over two dozen other cases. Despite the relatively trivial nature of many of the cases filed against him, he was routinely denied bail by the police and by magistrates, and even by the Sessions Judges, and was compelled to come to the Supreme Court for bail in almost every case. Each time he obtained bail in one case, he was ‘shown arrested’ and denied bail in another, thus enabling the authorities to prolong his incarceration over a period of two months.



As noted by one well known economist “ The [widespread perception of] the lower courts as corrupt and influenced by political power threatens civil liberties. For example, it can affect bail applications, the ability of judges to deliver impartial justice, and the ability of individuals to access judges in emergency circumstances, in that whether they are able to avail themselves of this right or not is dependent upon the connections they have. Even the price of the necessary documents acts as a deterrent factor .”





Higher up within the criminal justice system, the impact of lack of separation is also palpable in the workings of the Sessions Court. There appears to be a common pattern for the government of the day to influence the lower judiciary to manipulate the outcome of cases. The most recent example perhaps is the withdrawal in rapid succession of several criminal cases against a leading political figure during a period of ongoing discussions regarding possible alliance between him and the then ruling party, giving rise to speculation in the media that the withdrawal of cases had been promised as the cost of forming an alliance.








‘As political tensions between the two leading parties usually run high, this sometimes leads to efforts to control and use the magistracy and criminal justice system to harass political opponents and, conversely, to absolve whichever party is in power of wrongdoing. Too often, changes in government result in the dismissal of criminal and corruption cases against members of the newly instated ruling party and the institutionalisation of dozens of criminal and corruption cases against ministers and important bureaucrats from the last government. Law and Policy Reform, ADB, 2003, at
55.



– Civil Justice System

The threat of unfavourable posting or of blocking promotion gives an opportunity for the executive to influence the decision making capacity of lower judiciary over decisions, and in particular over interim orders. Such threats, together with the endemic nature of corruption in the lower courts, mean that more often than not justice may be purchased by the highest bidder, whether a private party or the Government, bidding in the currency of commerce or of power.

In addition, the deputation of judicial officers to executive posts in different ministries allegedly contributes to creating an ‘executive’ mindset in many judges, given that they may spend significant parts of their career engaged in working within a Ministry or Department, with a resulting (or at least with a resulting perception) of loss of impartiality. The physical placement of judges within the executive, and working side by side with executive officers, may also have facilitated the growth of a symbiotic relationship between certain corrupt officers within the lower judiciary and civil servants.


– Lack of Judicial Accountability


In 2006, a judicial officer known to have given a number of orders discharging ruling party persons from pending prosecu tions, publicly stated his intention to contest in the next Parliamentary Election as a candidate from the then ruling political party. Despite severe criticism in the media, and demands raised by the Bar for his removal, no action was taken by any of the concerned authorities to even investigate these statements. Ultimately, following a public interest writ petition filed by a lawyer as petitioner, the High Court Division issued a direction restraining the concerned officer from discharging any judicial f unctions. The judicial officer concerned sought permission to appeal before the Appellate Division, but his application was rejected.


This case perhaps best demonstrates how even a glaring instance of judicial misconduct does not result in any form of inquiry let alone accountability within the current structures of judicial control and administration. Perceptions of lack of judicial accountability at all levels of the judiciary appear to be increasingly widespread among users of judicial services and a lso the public at large. Such perceptions arise not only from the arbitrary exercise of judicial power at the behest of the executive, as described above, and also from the unchecked use of judicial powers of powers of contempt against persons found to have ‘scandalised the judge’ (an offence which has no statutory definition and is open to highly subjective interpretation).



– Using Contempt Powers:


In 2005, the High Court Division convicted editors, publishers and r eporters of two national newspapers for contempt, with respect to their reports regarding allegations against an ad -hoc judge of the High Court of tampering with examination result sheets while a student. The father of the concerned judge moved a contemp t petition with a submission that publication of such a report amounts to contempt of court. The newspapers produced the copies of investigation reports from the University concerned. The High Court Division held that even if the contents of the reports were true, publication of any report even concerning past conduct of a sitting judge amounts to contempt of court. The Court was reluctant to accept the submission of the newspapers that the report had been published in exercise of their fundamental right to freedom of expression, and in the public interest and that the reported conduct did not relate to the capacity of any person as a judge. . In rejecting the submissions of the newspapers the Court further observed that as long as a person can show that he has the experience of practising as lawyer for at least 10 years and a citizen of Bangladesh, he is eligible for the appointment as a justice of the Supreme Court and there is no scope for considering whether his LL.B certificate was genuine or not!"





The issue of judicial accountability has two dimensions, involving judicial recourse on the one hand, and administrative recourse on the other. Of course there is a process of accountability through the judicial process, with errors in decision making by magistrates and judges of the lower courts subject to questioning by higher courts. However, accountability through the administrative process, by exercise of powers of discipline and control, is difficult to achieve in the current situation, given that these lie with the Executive.


Given the lack of control of the judiciary over the lower courts, there is no process of scrutiny by the higher judiciary over magistracy and no scope for any action being taken by higher judiciary in respect of allegations of abuse of power or corruption by magistrates. (It is also notable that where the Judiciary has acted – as for example in the case above – against corrupt or incompetent judicial officers – it has generally done so at the initiative of lawyers or others seeking its intervention through public interest petitions or mobilisation, rather than as a matter of course. This begs the question of the extent and nature of judicial accountability that would follow separation (see discussion below)).



– Loss of Confidence in the Judiciary


As a consequence of such executive control of the judiciary having become the norm, and the lack of effective control being exercised by the Supreme Court, the lower judiciary itself is widely perceived to have moved more and more away from the basic principles of independence and impartiality. Once exposed to and implicated in corruption and nepotism at the behest of the executive, arguably the lower courts have become more open to other sources of influence and pressure for example through monetary inducements from private parties. Thus the lack of separation has become part of the context and cause of the endemic rise of corruption. With these twin incentives, the lower courts have been reportedly responsible for the arbitrary exercise of powers resulting in the denial of liberty and fair trial rights on a day to day basis. This situation has contributed to a serious public lack of confidence in the courts, and appears to be catalysing increasing resort to self-help as a form of conflict resolution, thus contributing to the increase of violence.


The only solution to prevent executive interference and establish accountability is therefore to separate the judiciary from the executive control. If this is accompanied by enabling more transparent discussion of judicial processes and outcomes, for example in the media, that would in itself reduce the threat of judicial actions being taken or perceived to be taken whimsically and capriciously.


Legal Profession:
The academic systems of the country allow two separate systems of qualifying legal degrees in Bangladesh which are college-oriented two year LL.B degrees and the University based four-year LL.B (Hons) degrees which require more extensive academic commitment and the seats at the universities remain competitive. But recent there has been a rise in the trend of obtaining foreign academic LL.B. degrees (especially from UK).

Limitations / Obstacles of law enforcement:
Most of the people of Bangladesh live under a certain poverty level and few people are aware of the law and law enforcement. It's one of the main reasons that many people seeking justice are deprived from justice. These are some of the obstacles and limitations in implementing the rule of law:
• The procedure to get justice is a lengthy process. "Justice delayed justice denied."
• Many crime/violation of rule is overlooked for socio-political reason.
• Involvement of influential person.
• Lack of confidence on law enforcement authorities.
• Witnesses of crime deny assisting for keeping him/her away from a hassle.
• Weak information report by Police.
• Corruption





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Chapter-4

THE SEPARATION OF JUDICIARY IN BANGLADESH

Introduction:

In 1999, Bangladesh’s apex court, the Appellate Division of the Supreme Court, gave a landmark judgment in Secretary, Ministry of Finance v Masdar Hossain (the Masdar Judgment). This judgment re-affirmed the constitutional mandate for independence of the judiciary and laid out a roadmap to achieving separation of the judiciary from the executive with respect to the lower courts, both civil and criminal.


The judgment was a fitting response to the long standing demand articulated by lawyers and judges to ensure speedy and effective separation of the judiciary. In turn, it catalysed both leading political parties to make manifesto commitments to realise separation of the lower judiciary. Since then, development partners have also raised the issue of separation in their dialogue with the Government of Bangladesh. Despite this broad-based consensus, the judgment today remains largely unimplemented.


This paper aims to provide an outline of the current situation regarding the lack of separation between the lower judiciary and the executive, and its implications for access to justice and the protection of basic human rights. It focuses on the mandate for separation as laid out in the Masdar judgment, assesses the measures taken to comply with that judgment to date and makes recommendations for ways and means to ensure its full implementation. This paper also aims to catalyse a debate among concerned leaders and policymakers and within a broader public arena, to build consensus on the need for urgent action to effect separation of the judiciary.


In 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.


Conceptual Analysis


Independence of Judiciary:

Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. 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) (Rahman,2000; Hadley; 2004).

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 (Halim, 1998; 299). The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence (Bari, 1993, 2: Rahman, 2000):

(ii) 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; Personal independence: That means the judges are not dependent on

(iii) Government in any way in which might influence them in reaching at decisions in particular cases; Collective Independence: That means institutional administrative and
(iv) Financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative;andInternal Independence: That means independence of judges from their
(v) 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 (Rahman, 2000, 147). “Independence of the judiciary”, it is maintained, “lends prestige tothe office of a judge and inspires confidence in the general public” (Robson, 1951).


Separation of the Judiciary:

Separation of the judiciary has been argued both as a cause and a guardian of formal judicial independence (Hadley, 2004). 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 isless room for an individual’s perceptions in judicial decisions (Dr. Kamal, 2004; 5March).

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 (Hadley; 2004). 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 he 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 Constitution:

The 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 (Dr. Kamal Hossain, 5th March, 2004).




HISTORICAL DEVELOPMENTS


While there may be a perception of increasing levels of executive control over the judiciary, the actual fact of such control has a long history. The contours of such control and interference have marked the operation of the lower judiciary since the British colonial period, and continued during the Pakistan period.


Conscious of this history, the founders of the post-independence Constitution of
1972 framed explicit provisions mandating independence of the judiciary and its separation from the executive at all levels. In the intervening three decades, however, amendments made under different regimes to the original constitutional provisions resulted in major incursions on the constitutional mandate for separation. In addition, the failure to overhaul the inherited institutional structure, and the continued intervention of deeply embedded vested interests, combined to prevent separation from taking place. In the post ‘democratic’ years since 1990, the judiciary at all levels has been caught up in the partisan political divisions affecting the major institutions of state. Further, a political culture of violence and intimidation, in which the criminal law is seen as a tool for repression of the political opposition, has created active disincentives to forging the necessary political will to bring about separation.


In the absence of any legislation from any party giving force to the constitutional mandate for separation, it was ultimately the Supreme Court which gave directions in the Masdar judgment for effecting separation, and the process of implementation of this judgment is continuing today. The developments which led to the filing of the Masdar case and its ultimate outcome are set out immediately below.




1. The Colonial Heritage, 1872- 1947


“It is troubling to be the executive officer in the morning, and then wear a judicial hat and sit in judgment on my own decisions in the afte rnoon!”


The problem of lack of separation of the judiciary from the executive stems from
British colonial period.

In the lower civil courts, although judicial and executive functions were formally separated, personnel were not, and often judges received executive appointments while executive officers received judicial appointments.

In the lower criminal courts, the area where executive control is still most apparent, the pattern for lack of separation was set early on. The view that “the man who can punish is the ruler” and that “good administration requires that it should be strong and it cannot be strong without the concentration of authority”, informed these arrangements. From 1872 onwards, the chief executive officer at the district level, the District Collector, was also made responsible for judicial functions as the District Magistrate. Despite widespread criticism, this arrangement was embedded in the Criminal Procedure Code of 1898 (‘CrPC’) which remains in force today. Magistrates, who were appointed by and remain under the control of the Executive, exercised judicial powers under the CrPC, as noted above. .



2. Developments at Partition

In 1947, with the end of British rule, both the newly independent states of India and Pakistan inherited the colonial legacy of laws which formally authorised executive control over the judiciary, and an institutional structure, prevailing attitudes and approaches which reinforced it. The territories which now comprise Bangladesh formed the eastern wing of the newly created state of Pakistan, known as East Pakistan.


In Pakistan, the new Constitution of 1956 called for the State to ensure separation of the judiciary. However, only very limited measures were taken to implement this provision. In Punjab, in the West Wing, certain practical steps were taken following administrative directions from the High Court. These proved ineffective, in the absence of any real resource or political commitments and in any event, came to an abrupt halt with the promulgation of Martial Law in 1958. In East Pakistan new legislation ( the Code of Criminal Procedure (East Pakistan Amendment) Act (Act XXXVI of 1957) (‘the 1957 Act’) envisaged dividing the Magistracy into two classes, Executive and Judicial, and ensuring control of the District Magistrate over the former, and control of the Sessions Judge and the High Court over the latter. The Executive Magistracy was to comprise of District Magistrates, Additional, Sub- Divisional and Special Executive Magistrates. The Judicial Magistracy was to comprise of Judicial Magistrates, and Magistrates of the First, Second and Third Class. However, this law was never published as a notification in the Official Gazette, and therefore did not come into force.


In the absence of any formal legal framework to underpin separation, the practice of overlapping executive and judicial functions, and of interchanging executive and judicial officers continued. In the Civil Courts, members of the Civil Service of Pakistan often served as Additional District and Sessions Judges upto the 1960s. In the Criminal Courts too, Magistrates continued to perform both judicial and executive functions.



A major step towards separation was taken with the establishment of the Hamoodur Rahman Law Commission, headed by a former Supreme Court judge, which functioned from 1967-1970. The Commission recommended that separation be attempted in both wings on the lines proposed in the 1957 Act. Before any steps taken to give effect to these recommendations, the War of Liberation took place, and Bangladesh was established as an independent nation in 1971.




Developments Post-Independence




The New Constitution


Given the long experience of politicisation of the judiciary and of executive control of the lower judiciary in both the British and Pakistan periods, lawmakers in the newly independent Bangladesh were fully alive to the importance of promulgating constitutional safeguards to ensure effective independence for the judiciary. Consequently, the new Constitution of 1972 provided for full separation of the entire subordinate judiciary, including Magistrates.


The Constitution, in its original incarnation, articulated a principle of judicial independence (Art. 22) as a guiding principle for state action, and explicitly guaranteed that the Chief Justice and the other judges of the Supreme Court would be independent in the exercise of their functions (Art. 22, read with Art. 94(4)). It also noted that the provisions for the separation of the subordinate judiciary from the executive ’shall be implemented as soon as possible’ (Fourth Schedule, Temporary and Transitional Provisions, Para 6).


These statements were buttressed with specific provisions addressing the appointments, removal, and other terms and conditions of service of both the higher and lower judiciary. With regard to appointments to the subordinate courts, the Chief Justice of Bangladesh was originally empowered to appoint all District Judges. The President was to appoint all other Officers in the Judicial Service and Magistrates exercising Judicial Functions according to Rules made by him in consultation with the Public Service Commission and the Supreme Court. The superintendence and control of all subordinate courts was to vest with the Supreme Court.

Box 3: Constitution of 1972 - Provisions on Separation

Art. 22 ‘Separation of the Judiciary from the Executive’ as a Fundamental Principle of State Policy



SUBORDINATE COURTS

Art. 109 Superintendence and Control
 HCD’s superintendence and control over all subordinate courts


Art. 114


Art. 115




116 Art.




Subordinate courts to be as established by law
Appointments

 District Judges appointable by the President on the SC’s recommendation
 Others including Magistrates exercising judicial functions appoi ntable by President
- according to Rules made by President / on consulting appropriate PSC/ on
consulting SC

Control and discipline
 SC’s powers of control (including posting/ promotion/grant of leave) and discipline of
persons in judicial service and magis trates exercising judicial functions


Art. 133 Appointment and Conditions of Service
 Regulated by law made by Parliament, subject to Constitution
 President may make Rules until such laws framed, which would be effective subject to law’s provisions

Art. 135 Reorganisation of Service
 May be done by law by ‘ creation, amalgamation or unification of services ’ which law may vary or revoke condition of service

Fourth Schedul e Art. 6 (6)


Transitory Provisions
 Part VI Chapter II (on subordinate courts) ‘shall be implemented as soon as practicable’, and until then such matters to be regulated (subject to law) as was done before commencement of the Constitution




Constitutional Amendments, and Other Developments

The original constitutional framework proved impermanent, and the three decades since independence saw major encroachments being made both through legal amendments and in practice. The key changes regarding the lower judiciary are highlighted here.

In 1975, within barely three years of its promulgation, the then Government enacted the Fourth Amendment to the Constitution, resulting in the re-working of both constitutional chapters on the Judiciary (Part VI, Chapters I and II). Most critically, it curtailed the powers of the Chief Justice and the Supreme Court in the matter of appointments of both the superior and subordinate judiciary (Arts 95 and 115), and made major encroachments into the Supreme Court’s powers of control (including posting, promotion and grant of leave) and discipline of the subordinate courts (Art. 116). The consequence, as noted by a respected former judge of the Supreme Court, was that ‘Article 116, as it stands now, is the insurmountable block against separation of the judiciary from executive control.’



In 1978, some of these changes were later reversed by the Second Proclamation Order No. IV of 1978. These new amendments reasserted the requirement of the President’s consulting with the Supreme Court regarding the control and discipline of subordinate judges and magistrates exercising judicial functions (Art.116).



In 1988, further incursions into judicial independence – in particular of the superior judiciary – were made by the Eighth Amendment to the Constitution which provided for the decentralisation of the unitary High Court Division (Art. 100), necessarily thereby weakening the High Court’s control over the lower courts. Later in Anwar Hossain’s case, the AD described this amendment as an incursion on the basic structure of the Constitution, and set it aside.
Significantly on 19 November 1991, the joint declaration issued on behalf of the BNP- and Awami League-led mass movement for democracy included a demand for separation of the judiciary from the executive.


3. Litigation to Catalyse Change

During this period, significant initiatives were taken through litigation to raise challenges to various issues on the ground that they violated the constitutional principle of separation of the judiciary. In 1999, following the most significant such challenge, the Appellate Division, in Masdar Hossain’s case, issued a series of declarations and directions on the Government to effect changes in the law and practice regarding the control and administration of the subordinate courts and of Magistrates exercising judicial functions. These directives are currently pending full implementation by the Government (see section 5 below).


4. Political Consensus for Separation

The judgment was reinforced by the unequivocal commitments made by both leading political parties in their election manifestos in 2001 to separate the judiciary from the executive.


5. Separation as a Priority for Development

In their most recent dialogues with the GoB, development partners have highlighted the need to ensure separation of the judiciary for purposes of good governance and to ensure access to justice, safety and security. The PRSP also contains reference to the importance of separation.





The Masder Hossain Case Judgements


The Judgment

In its landmark Masdar judgment, the Appellate Division addressed head-on certain concerns regarding executive control over the judiciary. It reaffirmed the principle of independence of the judiciary, and elaborated on the constitutional position and practice regarding separation of the judiciary from the executive. Most importantly, it laid down twelve declarations and directions (‘the twelve commandments’) for implementation by the Government in this regard.

This decision originated in a constitutional challenge brought before the High Court by 218 persons in judicial service, including Masdar Hossain. They argued that the subordinate courts were part of the judiciary and therefore persons in judicial service could not be included within the Bangladesh Civil Service

Reorganization) Order 1980, nor could they be controlled as though they were a part of the Bangladesh Civil Service, as defined by the Bangladesh Civil Service Rules 1981 (‘the BCS Rules’). The High Court Division held in favour of Hossain and the other judges, and after the Government appealed this decision and lost, the Appellate Division affirmed the High Court’s judgment.


In this judgment, the Appellate Division affirmed that a separate Judicial Service should be established, distinct from the Executive and Administrative Cadres of the Bangladesh Civil Service. It also noted that this separate Judicial Service should include both persons in judicial service and magistrates exercising judicial functions.


It stated that these two categories formed a class distinct from other services of the Republic, and that they could not be ‘treated alike or merged or amalgamated with any other service, except a service of an allied nature’. In consequence, the Court held that the Government’s inclusion of judicial officers within the Bangladesh Civil Service (Reorganization) Order 1980 as the Bangladesh Civil Service (Judicial) was beyond the terms of the Constitution.


The judgment identifies five key characteristics of independence of the judiciary, namely: security of tenure; recruitment to the Judicial Service as permanent and through a transparent Judicial Service Commission; security of emoluments including pension etc.; institutional functional independence of the Subordinate Judiciary from Parliament and the Executive; and financial autonomy within the sphere/funds allocated.


The judgment contains twelve specific directions on the Government for measures to ensure the separation of the judiciary, by creating a new Judicial Service to include the magistracy. These directions, among others, required the Government:


• to set up two separate bodies, the Judicial Service Commission (JSC) (to recruit persons in judicial service, including judicial magistrates), and the Judicial Pay Commission (JPC) (to fix pay scales for members of the judicial service), specifying the nature of their composition, powers and functions.


• to frame and bring into force four sets of rules relating to the establishment of the JSC (for recruitment of members of the Judicial Service), establishment of the JPC (for fixation of their pay and benefits), for ensuring the manner of the constitution, composition, recruitment and suspension of members of the service, and for ensuring matters relating to posting, promotion, and other service conditions.


• for the purpose of incorporating magistrates within the judicial service, to frame amendments to the Code of Criminal Procedure and other laws that empower Magistrates to try criminal cases, so that all references to ‘Magistrate’ in existing laws would be replaced by the term ‘Judicial Magistrate’.







Proposed Court Structure

Supreme
Court
(Appellate Division & High Court Division)




Courts having equivalent status


Civil Criminal





Labour App. Tribunal/ Admin. Tribunal/ Customs App. Tribunal/ Court of Settlement/ IT App. Tribunal



District Judge Session Judge/Special Divisional Court/ Speedy Trial Court/Nari o Shishu Adalat





Additional District Judge Add. Session Judge/ Chief Judicial Magistrate/Chief M etropolitan Magistrate






Artha Rin Adalat
Paribesh Adalat




Joint District Judge Joint Sessions Judge/ Add. Chief Metro. Magistrate/Add. Chief Judicial Magistrat


Family Court Senior Assistant Judge Senior Judicial Magistrate/Met ro
Magistrate/ Magistrate 1st Class


Family Court Assistant Judge Judicial Magistrate/Magistrate 2nd and 3rd Class



Now every institution, authority and individual associated with the judicial administration is required to advance, strengthen and achieve these measures.








‘The Twelve Masdar Hossain Directions’






1) It is declared that t he judicial service is a ‘service of the Republic’ within the meaning of Article152(1) of the Constitution, but is a functional ly 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 a nd tied together with the civil executive and administrative services.


2) It is declared that the word “a ppointments” in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and also a magistracy ex ercising 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 s ervice and that Article 133 and Article 13 of the Constitution and the Services (Reorganisation and Conditions) Act, 1975 have no application the above matters in respect of judicial functions.



3) It is declared that t he creation of BCS (Judicial) cadre al ong with other BCS executive and administrative cadres by the Bangladesh Civil Service (Reorganisation) Order, 1980 with amendment of 198 is ultra vires the Constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inappli cable to the judicial service.



4) The appellant and other respondents 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 manda te 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 und er 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 s ubordinate courts for recruitment to the Judicial Service on merit with the objective of achieving equality between men and women in the recruitment.


5) 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), allowances, pension (as a matter of right, not favour) and other terms and conditions of service, consistent with Article 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 of the constitutional status of the said service .


6) The impugned orders in the writ petition dated 28.2.94 and 2.11.95 are declared to be ultr a vires 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 ju dicial service shall follow the recommendations of the Commission.


7) It is declared that in exercising control and discipline of person’s employed[d] in the judicial service and magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the Executive.



8) 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) institution[al] independence from the Parliament and the Executiv e shall be secured in the law or rules made under Article 133 or in the executive orders having the force of Rules




9) It is declared that the executive Government shall n ot require the Supreme Court of Bangladesh to seek their approval to incur any expenditure on 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 i nstructions 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 31.05.2000.


10) It is declared that 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.


11) 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.


12) It is declared that u ntil the Judicia l Pay Commission gives its first recommendation the salary of Judges in the judicial service will continue to be governed by status quo [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 effected in respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation the members of the judicial service 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.





The changes envisaged to the structure of the lower judiciary following compliance with the Masdar judgment are illustrated below:


Post-Masdar Developments:

Despite the passage of almost six years, the Government has yet to fully comply with the Masdar directions. The earliest measure taken to comply with the judgment concerned the financial autonomy of the Supreme Court.

Subsequently, the Government promulgated the JSC Rules and published them in the Bangladesh Gazette. Thus a new and separate ‘Bangladesh Judicial Service’ was created, and a seven member Judicial Service Commission was established. Since then, some 230 persons have been appointed to the judicial service by the JSC, and are now posted at various courts across Bangladesh.



Following protracted hearings before the Appellate Division regarding the proposed legislation required to secure the other key aspects of independence of the lower judiciary regarding security of tenure, superintendence and control etc, the Government in 2006 framed further legislation. This included the promulgation of



three sets of Rules regarding the terms and conditions applicable to the Judicial
Service, as follows:



• The Bangladesh Judicial Service (Pay Commission) Rules (‘the JPC Rules’)

• The Bangladesh Judicial Service (Service Constitution, Composition, Recruitment and Suspension, Dismissal & Removal) Rules (‘the Composition Rules’)

• The Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Conditions) Rules (‘the Posting Rules’)



The JPC Rules provide for establishing a JPC comprising of the Auditor General, Secretary, Finance Division, Secretary, Ministry of Establishment, Secretary, Ministry of Law and the Registrar, Bangladesh Supreme Court. The JPC’s functions include review and recommendation of the salary structure of judicial officers, on consideration of the salary/remuneration structure pertaining to the Judiciary.


The Composition Rules provide for the controlling authority for the Judicial Service, and for matters of recruitment, suspension dismissal and removal. They provide that the controlling authority for the Judicial Service would be the ‘Appropriate Authority’ and define the Authority as "the President or a Ministry or Division which is entrusted with the administration of the Service under the Rules of Business as framed by the President under Article 55(6) of the Constitution’. With regard to increase and decrease of number of posts and re-composition of the Service, these Rules provide that the ’Appropriate Authority’ is required to obtain consent from the Ministry of Establishment and the Ministry of Finance. They further provide that the Judicial Service shall comprise of such posts as are set out in the Schedule, but the Schedule does not contain any reference to Magistrates and the definition of "Judicial Service" also does not include Magistrates.



The Posting Rules provide that the Appropriate Authority shall determine posting of members of the Service in consultation with the Supreme Court, but do not specify that the Supreme Court’s opinion would have primacy. They also do not specify the consequences of non-compliance with the Rules. Further they explicitly sanction continuation of the practice of deputation and appear to widen its scope by providing that in addition to posts which have been reserved under a gazette notification (being SRO dated 22.2.2001) Judicial Officers may also be posted on deputation to "any other government office or any other authority" .

In addition to the above four sets of rules, and in order to ensure the incorporation of judicial magistrates into the Judicial Service, the Government has framed (but not yet notified) the Draft Code of Criminal Procedure (Amendment) Bill (‘the CrPC Bill’). This has been pending scrutiny by the Parliamentary Standing Committee on Law and Justice since February 2006. The Draft Bill provides for creating two classes of magistrates, namely Executive Magistrates, who would be recruited from amongst persons employed in the Bangladesh Civil Service (Administration) and Judicial Magistrates from amongst persons employed in the (newly created) Bangladesh Judicial Service. It also replaces all existing references in the CrPC to ‘Magistrate’ without any qualifying word by the term ‘Judicial Magistrate’. Finally, it clearly differentiates the powers and functions of Executive and Judicial Magistrates respectively, both under the Code and other laws. So the powers and functions of Judicial Magistrates under a law other than the Code would include the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or other proceeding or would have the effect of sending him for trial before any Court. In contrast the powers of Executive Magistrates would be limited to functions which are administrative or executive in nature, such as the granting of a license, the suspension or cancellation of a license, sanctioning a prosecution or withdrawing from a prosecution.


In the meantime, a number of actions have been taken by the Government which detract from the letter and spirit of the Masdar judgment, and have themselves been the subject of questioning and further constitutional challenge by lawyers focused on ensuring compliance with the judgment. One such case concerns the transfer of judicial officers without the consent of the Chief Justice. Another two writ petitions have been filed challenging the appointment of Additional District Magistrates and the creation of new Magistrate's Courts without consultation with the Supreme Court. Both these writ petitions are now pending before the High Court Division for final hearing.


At the time of writing, the Masdar judgment remains under active consideration by the Supreme Court. In July 2006, Masdar Hossain’s lawyers, intervening in the case, had placed before the AD a comparative chart depicting 'the anomalies that the government has created' with regard to implementation of the 12-point directives and




CONCERNS REGARDING POST MASDAR DEVELOPMENTS:


This section outlines some of the apparent discrepancies between the four sets of Rules that have been promulgated (the Notified Rules), and the earlier versions approved by the AD in May 2003 (the Modified Rules). On a reading of the texts, reinforced by the views of jurists and civil servants consulted in the course of this study, certain concerns arise regarding whether and to what extent the Notified Rules would fully achieve separation of the lower judiciary from the executive. These concerns are set out below and relate in turn to the composition of various bodies, their powers and functions, the nature of the controlling authority and the nature and composition of the judicial service, inasmuch as in each case, there remains considerable practical scope for executive interference at each level.

1. Composition of the JSC and JPC:

The JSC as finally established has only seven as opposed to the eleven members earlier proposed. Among them, arguably the majority of the Commission members are not judicial officers that are if the Secretary, Ministry of Law is considered to be an administrative officer by virtue of serving in an administrative post.

The composition of the JPC also appears to leave considerable scope for executive control of the body. The current composition, and the rule that a quorum of the commission requires only three persons, means that the JPC could if necessary take decisions without the presence or participation of any member of the judiciary.


2. Composition of the Judicial Service:

The exclusion of any reference to Magistrates in the Schedule of the Composition Rules and in the definition of Judicial Service indicates that the Magistracy would not be included in the definition of the judicial service. This omission appears to indicate that the Magistracy is not going to be part of the Judicial Service and would continue to be controlled by the executive.


3. Powers and Functions:

The Posting Rules provide for posting Judicial Officers on deputation to various offices, including the Ministry of Law, the Supreme Court, the Parliamentary Secretariat and the Election Commission. The Posting Rules further appear to widen the scope of deputation from that envisaged by the original Draft Rules.



4. Controlling Authority for the Judicial Service:

The provision regarding the ’Appropriate Authority’ in the Composition Rules, together with the provision in the Rules of Business for the Law Ministry to be responsible for administration of the Judicial Service would suggest that the Ministry will remain the controlling authority without further changes. This indicates a need for amendment of the Rules of Business to define the Appropriate Authority as an independent body, separate from any Ministry or Division.

With regard to posting, Rule 3 of the Posting Rules provides that the ‘Appropriate Authority’ shall determine posting of the members of the Service in consultation with the Supreme Court, thus omitting the requirement (included in the original draft Posting Rules) that in the event of difference of opinion, the opinion of the Supreme Court would have primacy.

The Posting Rules are silent about the consequence of non-compliance with the Rules, i.e they do not specify whether a posting without consultation with the Supreme Court would be invalid, and it may therefore be argued that the Rules are directory not mandatory This leaves open the possibility that the opinion of the ’Appropriate Authority’, that is the Executive, would prevail.

5. Terms and Conditions of Service

With respect to reviewing the salary structure of Judicial Officers, the original draft JPC Rules provided that the factors to be taken into consideration include ‘...the existing salary/remuneration structure’ (Rule 3), implying reference to the salary/remuneration structure prevailing for other Services besides the Judiciary. However the notified Rule 3 indicates that only the salary/remuneration structure pertaining to the judiciary would be considered. This may give rise to an anomalous situation in which the remuneration structure for the judiciary does not match that for the administrative service.




















Box: ’Deputation’: A Remaining Roadblock to Separation


The ‘deputation’ of persons in judicial service to various non -judicial executive posts is a particularly controversial issue affecting the separation process. As noted above, about 15% of judicial officers are still routinely posted on ’deputation’ to non - judicial posts in various Ministries, Departments, and Corporations. Deputation is a service condition provided in respect of services as defined by the Bangladesh Civil Service Recruitment Rules, 1981 ("the 1981 Rules”).
In Masdars Case, the AD held that these Rul es are unconstitutional to the extent that they relate to the judiciary, and that the Judicial Service is not a Service as understood by these Rules, observing that "... as oil and water cannot mix, the judicial and civil administrative executive services are non -amalgamable" (para 41). It also noted that although the judicial service is declared to be a "service of the republic", the status of judicial officers is not akin to that of "executive" officers who form part of the Government administration.
It may be noted that the Constitution defines ‘Judicial Service’ as a service comprising of persons holding judicial posts, and contains no provision for appointment of members of the Judicial Service on deputation/secondment to executive posts. The absence of any such provision appears to indicate that the framers of the Constitution did not envisage that members of the judicial service would be allowed to serve as executive officers. Indeed, the entire practice of deputation appears contrary to constitution al provisions on the independence of the judiciary (see Articles 22, 35(3) and 116A). If the executive branch of the Government is vested with the authority to withdraw judges from the judicial service and post them in executive posts in executive ministri es and departments, then the constitutional concept of functional independence of the judges and judicial magistrates would appear to be wholly undermined.
Thus the continuing practice of deputation – in respect of posting judicial officers to executive posts -- appears contrary to the spirit of the judgment as well as the Constitution.
The question now is of how the practice of deputation would be addressed in the draft laws framed pursuant to the Masdar Hossain judgment.
The initial Draft Rules submitted by the Government to the AD contained no provision for such deputation. The Modified Rules approved by the AD by its order dated 26.1.2003 first included such a provision. Rule 7 of the Modified Rules envisages a situation whereby judicial offic ers may be posted on deputation to (a) the Supreme Court, (b) the Ministry of Law Justice and Parliamentary Affairs against the reserved posts and (c) any other Ministry, the Parliament Secretariat or Election Commission. This provision did not seem to all ow posting of judicial officers to any government department or corporation. Subsequently, given the AD’s direction allowing the President to reframe the Rules, the Government widened the scope of deputation providing for persons in judicial service to be posted to any Ministry, Department or Corporation. This remains the position in the notified Posting Rules.



COMPARATIVE DEVELOPMENTS AND LESSONS LEARNED

In the post-colonial period, separation of the judiciary has been a central focus of constitutional and political reform for South Asian states. Here it maybe be useful to consider how efforts to achieve separation developed in two states – namely India and Pakistan -- with similar judicial and legal frameworks to those operating in Bangladesh. Such a comparison yields useful lessons regarding the nature of challenges faced in the process and the key factors for effecting change.



Developments in India



The Constitution of India 1950 provides for the State to consider the separation of the judiciary as a fundamental principle of state policy at both Central and State levels.36 The constitutional provisions have been reflected in and implemented through legislation or executive orders or interpretation in judicial decisions. A key role in effecting separation of the lower judiciary from the executive has been played by the Law Commission of India, as well as the Supreme Court.




Box 8: The Indian Experience


1950 Constitution mandates separation as fundamental principle of stat e policy

1958 Fourteenth Law Commission of India recommends separation, and training and oversight of judicial magistrates.

1973 Keshavananda Case : Supreme Court holds that independence of judiciary is part of basic structure

1974 SP Gupta’s Case: Supreme Court holds that Chief Justice’s opinion to have primacy over the Executive re SC appointments

1992 All India Judge’s Association Case: SC gives directions to ensure full separation of lower judiciary including setting up First National Pay Commission

Shetty C ommission Recommendations

 uniform designation of judicial officers
 recommended pay scales (max Rs 24,850 for DJ);
 retirement age of 60 years
 working library at judges’ residence
 residential accommodation and office room
 state vehicles for every DJ and C JM
judicial education and training

2005 Shetty Commission recommendations awaiting full implementation





In 1958, the Law Commission first examined the question of separation of the judiciary from the executive in its Fourteenth Report titled ‘Reforms of Judicial Administration’, and found that several States had not taken adequate measures in this direction, despite a number of efforts in this regard made even prior to


36 Article 50, Constitution of India: ‘The State shall take steps to separate the judiciary from the executive in the public services of the State.’ See also Art. 235 re the subordinate judiciary.


Independence. The Law Commission continued to pursue this matter in its subsequent reports until its Forty-First Report, which led to the revision and replacement of the Criminal Procedure Code of 1898 by the Criminal Procedure Code of 1973 (‘the 1973 Code’), enacted by Parliament.


The 1973 Code provided for the separation of judicial magistrates from the executive throughout the country, including in the so called metropolitan areas (any area with a population exceeding one million and so designated by the State Government). It provided for separate powers and functions and for separate lines of control and administration for judicial and executive magistrates respectively. Under these provisions, Judges of the Sessions Courts, Judicial Magistrates of the First and Second classes and the Metropolitan Magistrates are appointed by the respective High Courts. The High Courts also appoint from amongst the Magistrates of the First class a Chief Judicial Magistrate and an Additional Chief Judicial Magistrate and, in metropolitan areas, a Chief Metropolitan Magistrate and an Additional Chief Metropolitan Magistrate. The High Courts may also appoint S pecial Magistrates on the request of the Central or State governments. In contrast, the Executive Magistrates, including the District Magistrate, Additional District Magistrates and Special Magistrates, are appointed by the concerned State Governments.

The difference between judicial and executive magistrates is that the former (judicial magistrates of the first or second class or Metropolitan Magistrates) are responsible for trying offences under the Indian Penal Code. The executive magistrates as their name implies, perform only non-judicial functions such as passing orders for arrest, security for keeping peace and good behaviour, removal of public nuisance, dealing with urgent cases of nuisance or apprehended danger, etc. Thus the judiciary in
criminal matters has been completely and uniformly separated from the executive throughout the country, with regard to their powers and functions. However concerns remained regarding the control and administration of judicial magistrates in practice.

In 1992, the Supreme Court, through a notable ruling in the All India Judges Association Case, followed by subsequent clarifications and expansion, substantially secured and enhanced the independence of the lower judiciary. The Court heldeffect separation of the lower judiciary. So for example, in 1946, the State of Madras appointed a Committee to examine separation of the judiciary at the magisterial level from the executive. The Committee’s recommendations included classifying the various functions assigned to Magistrates under the Criminal Procedure Code and other laws into police, administrative and judicial function s. In 1949, implementing these recommendations, the State of Madras then shifted judicial functions to Magistrates, and also removed control over Magistrates from the District Collector (the executive). This was done by a Government Order, rather than legi slation. In 1951, the State of Bombay achieved the same goal by legislation. Different States and Union Territories in the country adopted these two models at different times in pursuance of the constitutional command. In its Fourteenth Report, the Law Commission emphasised the urgency of the matter and recommended that with respect to the criminal courts the Bombay model should be implemented all over the country




that for purposes of their service conditions the members of the judiciary are comparable to the members of the other two branches of the government, namely, the legislative and the executive, and not to the civil servants or administrative staff of the government. It accordingly directed the Union of India and the States to take various necessary steps, including the creation of an all India judicial service, prescribing certain minimum qualifications for recruitment to lower judiciary, and providing various improvements to their service conditions.

Pursuant to the directions of the Court, the Government of India appointed the First National Judicial Pay Commission (‘the Shetty Commission’) on 21 March 1996. The Commission recommendations included:
• framing of Rules by the High Courts for the retirement of judges, specifying particular age;
• establishing appropriate nomenclature for the judicial officers;
• providing for the Chief Judicial Magistrate to have the same position as the
District Judge;
• formulating recruitment and promotion norms for different cadres of judicial officers and
• taking steps for judicial education and training.

Following the principles laid down by the Supreme Court in the All India Judges’ Association case that the judges should be at par with the political executive and legislature and not with the administrators, the Shetty Commission also made recommendations in relation to
• pay scales for the judicial officers’ allowances and facilities including providing domestic help allowance for retired judicial officers, and
• the creation of an All-India Judicial Service.

The Supreme Court then directed the concerned State Governments to implement the Commission’s recommendations (as modified) with regard to pay and terms and conditions of service. 39 The recommendations, as modified by the Supreme Court, have been implemented in almost all States and Union Territories to date. Wherever, they have not yet been implemented, imminent action is expected.




Thus, the civil courts have been effectively separated in most respects, with administrative control vesting in the High Courts at State level, except with regard to budgetary allocations which remained the domain of the Legislature. However, while the High Courts exercised control over the lower civil judiciary, in respect of determination of service conditions, age of retirement, salaries, allowances and other facilities,41 the Governor of each State remained responsible for the appointment, posting and promotion of District Judges, in consultation with the concerned High Court. 42 Only a person who is either already in the legal service of the Union or of the State or has been an advocate for at least seven years, and is recommended by the High Court can be appointed a District Judge.43 In interpreting this provision, the Supreme Court of India has held that normally, the State Government should accept the High Court’s recommendations, and the Governor should act on the same in making appointments. The State Government should communicate to the High Court any differences it might have with the latter’s recommendation, giving ‘good and weighty’ reasons, and a decision should only be reached following ‘full and effective’ consultation with the High Court.44 Government Counsel, who are also advocates, are not disqualified for appointment.45 The Governor also makes appointments to posts in the judicial service of the State below the rank of District Judge in accordance with the rules made after consultation with the State Public Service Commission and the High Court.46 Disciplinary action against the members of the lower judiciary such as suspension and removal from job and matters such as inter- se seniority are determined and decided by the High Court.



Developments in Pakistan



In Pakistan, following the provision for separation mandated by the Constitution of 1956 , other than some ad hoc measures in Punjab and the framing of legislation (never brought into force) for East Pakistan, no steps were taken to effect separation in practice for 25 years.


Box 9: The Pakistan Experience



1956 Constitutional mandate for separation of the judiciary
1957 Ad Hoc Measures in Punjab Province
1958 East Pakistan Ordinance (not notified)
1969 Hamoodur Rahman Commission (not implemented)
1972 Law Reforms Ordinance 1972 (Act XII of 1972) (‘LRO’): propos ed separating Judicial and Executive Magistracy (not notified)
1973 Constitutional mandate for separation within 3 years (Art. 173).
1994 Sharaf Faridi’s Case : directing Provincial Governments to issue notifications to separate
Judicial and Executi ve Magistracy and place Judicial Magistracy under High Court
1996 Notifications issued re Province of Punjab and Islamabad territory
2001 Code of Criminal Procedure amended:
 abolition of the offices of ‘District Magistrate’ and ‘Executive Magistrate’
 new definition of ‘Magistrate’ as meaning only ‘Judicial Magistrate’ or ‘Special
Judicial Magistrate’
 responsibilities of Executive Magistrate devolved on Judicial Magistrate/Sessions
Judge





Following the end of martial law and the restoration of democracy in 1972, the first step towards comprehensive law reform in this area came with the framing of the Law Reforms Ordinance 1972 (Act XII of 1972) (‘LRO’), in compliance with the recommendations of the Hamoodur Rahman Law Commission. This proposed dividing the Magistracy into an Executive Magistracy and a Judicial Magistracy, keeping intact the Executive Magistracy under the District Magistrate and placing the Judicial Magistrates under the Sessions Judge and the High Court. However, as with the earlier 1957 Act, notifications were never published to bring the LRO into force.
In addition, no practical steps were taken towards separation, for example with respect to planning how to revise the terms and conditions of judicial officers (to account for some of their functions being performed by the proposed Judicial Magistrates), restructure the service or work out related financial or administrative arrangements.

In 1973, the new Constitution provided that the state should ensure progressive separation of the judiciary from the executive and set a timeline of three years (Art.
173). However, no immediate steps were taken in this regard, with the Government periodically extending the timeline for compliance, ultimately to fourteen years.

Eventually in 1994, following a legal challenge brought by a leading Karachi lawyer and others, the Supreme Court of Pakistan gave a landmark judgment mandating separation in Government of Sindh and others v Sharaf Faridi and others . In this judgment, the Court:

- directed the four Provincial Governments (of Balochistan, Punjab, Sindh and North West Frontier Province) to issue notifications within a fixed timeline (by April 1994) to bring the LRO into force and so separate the Judicial Magistracy from the Executive Magistracy, placing the Judicial Magistracy under the High Court’s control;
- directed each Provincial Government to issue instructions to ensure compliance with its directions within fixed timelines and
- held that neither the Federal nor the Provincial Governments could request either the Supreme Court or the High Courts to seek the respective Government’s prior approval for incurring any expenditure in funds allocated for their annual budgets provided these amounts fell within the sanctioned budgets.

The Supreme Court dismissed applications by all the Provincial Governments for time to ensure compliance (one such application requested an extension of upto ten years!). However, it permitted some relaxation of its directions, allowing for example, Executive Magistrates in Punjab Province to try certain offences punishable with imprisonment up to three years.





Ultimately, in 1996, notifications in compliance with the Supreme Court’s direc tions were issued in respect of the Province of Punjab and the Islamabad territory.49 But implementation on the ground remained unachievable, given the reluctance of Executive Magistrates to join the Judicial Service without any prior assurances regarding the terms and conditions of service or prospects of promotion, the related reluctance of the High Courts to induct them in judicial service at equivalent levels to their counterparts in Judicial Service, and the overall reluctance of the Executive centrally to part with powers of criminal justice at the frontlines.

In 1999, after the military take-over, the Federal Government took several legal and administrative measures to further separation. First, the new National Reconstruction Bureau (NRB) examined the question of devolution of power to the grass roots levels. Its aims included to free the district judicial system from structural constraints and to achieve efficacious delivery of justice through decentralization and establishment of alternate dispute resolution mechanisms. These resulted, among others in the creation of the post of Nazim (Head of Local Government) of each District. Second, several news laws were promulgated as part of a stated policy objective of seeking more efficacious delivery of justice. This included amendment in
2001 of the Code of Criminal Procedure, resulting in the abolition of the offices of
‘District Magistrate’ and ‘Executive Magistrate’, and of a new definition of ‘Magistrate’ as meaning only ‘Judicial Magistrate’ or ‘Special Judicial Magistrate’. The responsibilities which had earlier pertained to the Executive Magistrate then devolved, with some exceptions, on the Judicial Magistrate/Sessions Judge . The powers which had earlier been exercised by Executive Magistrates under Section
144 CrPC now devolved on the District Police Chief and the Nazim (Head of the Local Government.) of each District. Third, the Government of Pakistan (with the support of the Asian Development Bank) launched a programme on judicial capacity building, which focused on providing diagnostic inputs, remedial and corrective measures, and training judges. This programme did not directly address the issue of separation – which at the time remained under consideration by the Supreme Court
– but it did seek to address the practical problems underlying and resulting from lack of separation. It also helped to raise awareness within the judiciary of comparative experiences of the importance of using incentivisation and training in improving judicial capacity, and thus building a constituency of support for separation. It programmes also suggested certain practical measures, such as establishing an Annual Conferences of Judges or the appointment of a Judicial Ombudsman, which could have contributed to monitoring the process of separation, but these have not been adopted to date.





There have been mixed reports of the success of the separation measures. Reportedly, the lack of adequate advance planning, together with the absence of any central guiding authority, has caused major difficulties. One commentator has identified the High Court’s failure to take a pragmatic approach to the issue, by refusing to integrate Executive Magistrates within the judiciary, as further exacerbating the problems following separation. As a result of this, when the offices of District magistrate and Executive Magistrate were abolished and all criminal files were brought before Civil Judges, there were inadequate personnel to deal with them, contributing to further backlogs and delays. This also contributed to a mishandling of criminal cases following separation, since given Civil Judges’ lack of experience in trying or overseeing criminal cases they were also not able to ensure effective control and supervision of the Police, resulting in greater indiscipline in handling of the cases and more widespread abuse of police power.
Independence Judiciary in Bangladesh: How Far the Dream!

Separation of judiciary from the executive and judicial independence appears to have become an endless process. The debate started in the late 18th century and continues even now (Ali, 2004). However now it is important to understand the present structure of the judiciary to be able to understand where executive intrusions into the judiciary originate and how these affect the independence of individual judges.

Structure of the Judiciary

Bangladesh’s Constitution came into force on December 16, 1972, the first anniversary of the country’s independence. It contains fairly stringent safeguards for the independence of the judiciary in Article 95 (Appointment of Judges), Article 96(Removal of Judges), and Article 99 (Prohibition on Further Employment of Judges), although the formal separation of powers is not emphatically articulated. Over the years, its safeguards for judicial independence, rather than being strengthened and consolidated, have been diluted through a number of constitutional amendments.

At a glance the judiciary of Bangladesh consists of two divisions, the Supreme Court and the subordinate courts. The highest court in Bangladesh, the Supreme Court, is actually composed of two divisions; the Appellate Divisions and the High Court Division. The functions of the two are distinct, and separate appointments of judges 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 Chief Justice of the High Court Division. The president, sometimes-in consultation with the Chief Justice 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 exacting, leading to “Political” appointments by the party in power (ADB, 2003).

The lower judiciary in Bangladesh also consists of two parts: first, there are District courts and Sessions courts, with 10-30 judges sitting in each of the country’s 61 Districts. Then there are also the courts of Magistrates, the Judges of the District Courts are under the jurisdiction of the Supreme Court and belong to the Bangladesh civil service, while judges in the courts of Magistrates are members of the country’s, 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 judges are typically transferred to their magisterial posts for 3-10 years during the course of their employment with the government, thereafter are reverted back to their old administrative positions (ADB, 2003). There are four different types of magistrates: magistrate of the first class, second-class third class and honorary magistrates (Hoque, 2003). 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 has the power jail and individual for up to seven years. The most notable executive interference’s 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 judicial independence and rule of law.

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 115and 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 (Hussain, 2003).

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 the request 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 amendments 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 executives 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 (Bari, 2004).

It may be noted that Pakistan and India have taken necessary steps for free the judiciary from the executive at all levels in 1973 and 1974 (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:

(i) The formation of Bangladesh Judicial Service, establishment of pay commission, appointment in service and the procedures of temporary dismiss and remove, 2001.
(ii) Bangladesh judicial service (ascertainment of field of service, giving

(iii) promotion, system of control and discipline including grant of vacation and the term of service) procedures, 2001.Judicial Service Commission Procedures, 2001.

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

But these drafts have some flaws, which are mentioned below:

Constitutional Amendment:

First of all constitutional amendment is essential if the judiciary is to be separated from the executive. In the proposed process, the judges are supposed to be indirect control of the president. But in the Article No. 48 of the constitution President is bound to take suggestion for appointing chief justice and Prime Minister. Moreover in the Article No. 55, it is clearly mentioned that the executive power of the republic will be vested upon the Prime Minister. So the article 48, and 55 must be amended.

Future of Working Magistrate:

How the promotion and other facilities will be given to the magistrates, it is not clear in the draft. If the working magistrates do not go under judiciary, there will be great problem because of shortage of judges.

Mobile Court:
In order to sustain the law and order of the country, mobile court plays a vital role. Executive controls it though it is the work of judiciary. According to the Criminal Procedure, Claluse-190 magistrate can not direct the mobile court. So it is a confusing matter that who will control mobile court.

Pay Commission and Finance:
Who will provide money/salary to the Judges or Magistrate, if Judiciary is separated; it is not mentioned in the draft. So before separation, pay commission and finance must be fixed.




ROADBLOCKS TO SEPARATION


The above survey of the situation with regard to separation in India and Pakistan are instructive for those concerned with the issue in Bangladesh, given the overwhelming similarity in the legal systems of the three countries, as well as their socio-economic context. Interestingly, in each country, the real push for setting in place a formal legal framework for separation came from the judiciary itself, at the prompting of the legal profession. Once the frameworks were articulated however, in each case there were different trajectories for the process of implementation. Drawing from the commonality of the experiences of both India and Pakistan, it may be useful to try to identify the nature of the key roadblocks to separation, and means to overcome these.



– Lack of Central Authority

There appears to be a distinct lack of any identifiable body or institution -- within the executive, the judiciary or elsewhere -- to lead or coordinate initiatives towards separation, and as a result the entire process lacks any real momentum. Neither the Supreme Court nor the Ministry of Law, the two bodies most clearly involved with the process of implementation, appear to have developed any clear strategy or plan for how to achieve implementation, nor have they positioned themselves as leaders on the issue. While the Appellate Division remains in seisin of the Masdar Hossain case, and the Government is required to account to it for the process of implementation, the management of the case has enabled prolonged delays, and in the meantime no steps have been taken either practical or administrative within the Supreme Court to lay in place the mechanisms to effectuate separation. The Bar has played a vocal and proactive role in continuing to raise concerns regarding the urgent need for implementation (including through weekly demonstrations at the Supreme Court Bar Association premises, and regular reiteration of this d emand by the Bangladesh Bar Council as well as local Bar Associations), but there are clearly limits to its capacity in terms of providing the necessary coordination between the executive the judiciary and civil society to effect changes.



– Lack of Executive Action


Lack of political will and commitment.

Although both major political parties have made commitments in their electoral manifestos to separate the judiciary, and indeed had made this commitment jointly during the anti-autocracy movement over fifteen years ago in 1990, neither has taken steps to meet these commitments once in office.

Proponents of the view that the lack of political will is due to the realisation that full separation is neither desirable nor feasible claim that it would lead to a breakdown of law and order. However, implementation of Masdar judgment would not in itself necessarily hamper the law and order situation, as executive functions would remain with the Executive Magistrates, and under the control of the District Magistrate. Therefore, there is no reason for apprehension.

Commentators have noted that the reluctance of the various administrations since
1999 to act on separation may be ascribed to their fear of losing control over the criminal justice system, and thus giving up a potent weapon of repression against their political opponents on the one hand, and exposing themselves to the prospect of being held to account by an independent judiciary for corruption or abuse of power on the other.

No practical steps towards separation:

There has been no apparent attempt to draw up any specific plans or administrative measures to address the various practical questions that would arise in the process of application of these Rules, for example, with regard to revising the terms and conditions of service of judicial officers, restructuring the service, or making necessary financial or administrative arrangements.

One particular concern has been raised that since separation would require larger numbers of Judicial Magistrates to be in place, and the existing strength among Judicial Officers is inadequate, considerable time would be needed for any recruitment. While such concerns are not unfounded, there are number of solutions to deal with the issue. Although the earlier draft Posting Rules provided for appointment of Judicial Magistrates from among civil servants for a period of six years, these provisions have been deleted in the final Rules. It had been envisaged that within the period of six years, the Judicial Service Commission would be allowed to recruit Judicial Officers to gradually fill in the posts of Judicial Magistrates and then allow the civil servants to return to their original cadres. At this moment, neither the Composition Rules nor the Posting Rules leave any scope for the Judicial Service Commission to undertake such recruitment. As explained above, the term
“Judicial Service” has been defined in such a way that Magistracy is not part of this service, hence the Judicial Service Commission has no authority to recruit Judicial Magistrates unless amendments to these Rules are made making the post of Judicial Magistrate a part of the “Judicial Service”.

Reluctance of Executive Magistrates to join the Judicial Service.

As noted above, many persons currently serving as Magistrates are reluctant to opt to join the Judicial


Service on a permanent basis. This appears due in part to the lack of clarity regarding the terms and conditions of service, but also due to the prevailing perception that service in the Judicial Service would involve lower remuneration and less prestige. It is precisely the links and reciprocal relationships between the Magistracy and the Executive which imbue Magistrates with a degree of power and expose them to the possibility of financial gain and influence; opting for the Judicial Service offers no similar incentives, rather former Magistrates turned Judicial Officers would be required by virtue of their office to maintain a distance from the executive thus abandoning any incidental benefits of this relationship.

– Lack of Pro-Active Approach by the Judiciary

The Supreme Court has now had the Masdar Hossain case on its dockets for over six years since the judgment was passed, but has allowed repeated adjournments on the Government’s plea that it is taking necessary steps for implementation. Despite such extensive delays, and public and media demands for action, the Court has failed to take a proactive approach to enforcing compliance with its own orders or guidelines regarding separation, refusing to impose strict timelines on the Government, to ask it to give reasons for the adjournments.

Beyond the litigation itself, the Supreme Court has not taken any steps to initiate discussion or planning on how to manage and administer the changes that would be necessitated by separation, for example with regard to suggestions of establishing a secretariat within the Supreme Court for this purpose, or identifying the exact caseload that would be administered or the numbers of new Judicial Magistrates who might be required in this connection.

– Reluctance of Magistracy to Opt for the Judiciary

There is not as yet a clear buy in among the Magistracy to the notion of separation. So for example, when the Judicial Officers’ Association demanded that the JSC should undertake recruitment of both Judicial Officers and also of Magistrates they were met by counter arguments from the Administrative Officers’ Association demanding that the Public Service Commission should remain responsible for recruitment of Magistrates and also that BCS (Admin.) Cadre Officers should continue to be posted on deputation to the posts of Judicial Officers.


– Lack of Wider Constituency for Change in Civil Society

Lack of a united voice from the Bar.

As expected, many lawyers have been extremely vocal in demanding that the Government take expeditious steps towards separation, with the leadership being given by the Supreme Court Bar Association, the elected representatives of lawyers of the apex court, the Banglades h Bar Council, the elected representatives of all lawyers in Bangladesh, and many eminent lawyers. However, the division of the Bar on partisan political lines as with so much of civil society, has resulted in the lack of a unified voice in support of these demands, and of related actions.





THE WAY FORWARD: MEASURES REQUIRED FOR SEPARATION

Executive encroachments on judicial independence regarding the lower courts’ day- to-day decision making are a subject of widespread and increasing public concern. Partisan appointments, transfer and removal of judges are eroding public confidence in the lower judiciary’s ability to discharge its functions impartially. Such executive interference has met with concerted protests and interventions from the Bar and other civil society actors, and sustained criticism in the media. The leading political parties have also committed themselves to ensuring separation of the judiciary. Development partners have also identified and underscored the need for separation of the judiciary to

Despite this widespread consensus on the need to effect separation, at the frontlines of the justice system, executive control remains supreme, with the magistracy remaining fully under the control and supervision of the government.

This paper has sought to identify some of the key impediments to implementing separation and to suggest ways and means for overcoming such obstacles. It is hoped that the discussion above will contribute to the evaluation of the various options currently under consideration for implementing the Masdar Hossain judgement. Through a combination of law reform, administrative changes and other practical management measures, as suggested below, separation of the lower judiciary from the executive is a practicable and realisable goal, and one that is essential to ensure the rule of law and enforcement of basic rights to access to justice, and safety and security. Many of these measures (including those suggested below for the long-term) could be adopted almost straightaway by the Judiciary itself, and could contribute to enhancing its capacity to deliver justice, as well as transparency in its processes, even without any further steps being taken by the executive.


a) Enacting and enforcing necessary legislation


• Public consultation on and if necessary amendment of the three sets of Rules:
Taking into account the apparent discrepancies between the Notified Rules and the Masdar Judgment, and to ensure transparency in the law making process, consider whether further review of the three sets of Rules is possible through public consultation and/or scrutiny by the Law Commission before they are brought into force.


• Expeditious scrutiny and enactment of the Draft CrPC (Amendment) Bill by
Parliament :
To expedite scrutiny by the Parliamentary Committee and to hold a public consultation on the Draft Bill before it is brought into force.

• Amendment of the Rules of Business :
To amend the Rules of Business to i) include a definition for the ’Appropriate Authority’, which is such as to ensure that the body is wholly independent of the executive, and ii) to identify which body would be responsible for providing Secretarial Services to the Judicial Pay Commission.


b)Establishing the ‘Appropriate Authority’:

There are various options for cons ideration regarding the
through the usual process, namely by initiating a proposal by the Law Ministry, then obtaining the approval of the Ministries of Establishment and Finance and then final sanction by the Cabinet. Alternatively, if the Rules of Business are revised in order to define the ‘Appropriate Authority’ as an independent body, then it could be located either within the Supreme Court, either under the Chief Justice’s Office, or alternatively under the control of the General Administration Committee. The first option would require establishing a Secretariat under the exclusive jurisdiction of the Supreme Court and the Chief Justice. The Executive Head of the Secretariat could be called the Registrar General, and be given the rank of Secretary (the senior most civil servant). The Registrar General could be recruited from among serving civil servants subject to the approval of the Chief Justice. Under the Registrar General there would be a number of Registrars entrusted with various responsibilities concerning d ay to judicial administration. The second option would require establishing a Judicial Secretariat under the control of the General Administration Committee, consisting of at least three Justices of the High Court Division with the Chief Justice having overall supervisory jurisdiction. The budgeting function of the Judicial Secretariat would be under the control of the Supreme Court and could be met from the charged amount as allocated by Parliament.


c) Making resource allocations for the Appropriate Authority:

The Ministry of Law and Establishment would need to redeploy resources currently held by them for the recruitment, posting, promotion of judicial officers and Magistrates to the ‘Appropriate Authority’.


d) Establishing a Secretariat for the Judicial Service Commission:

Given that the JSC is unlikely to need to appoint more than 20-30 judicial officers in a given year, it may not need a permanent Secretariat. Instead, it could seek such services from existing Supreme Court officers such as the Additional Registrar, or other officers from the Registrar’s Office. Since the Chairperson and a Member of the Commission are located in the Supreme Court premises, establishment of a small secretariat within the Supreme Court would be convenient for its smooth operation and monitoring.


e) Establishing a Secretariat for the Judicial Pay Commission.

If the Secretariat of the JPC is established within the Finance Division of the Finance Ministry, as provided in the Pay Commission Rules, there would be no need for any additional secretarial services.


f) Making appointments to the posts of Judicial Magistrates:

The ‘Appropriate Authority’, once established would be required to make available to existing Magistrates an option to join the Judicial Service. Based upon the numbers of those who make such an option, the Authority would decide on the number of posts available for recruitment of Judicial Magistrates. The JSC would then initiate the process of recruitment of Judicial Magistrates. The JSC could propose that incentives be provided for joining the Judicial Service, for example by providing a later retirement age for the Judicial Service as opposed to the Administrative Service, possibly of 60 years instead of 57 years, or alternatively by providing higher remuneration for the Judicial Service. As the Government is yet to formulate a salary structure following recommendations to be received from the Judicial Pay Commission, it would be worth exploring whether and how such incentives of extended tenure of service and higher remuneration could attract Magistrates to opt for the Judicial Service. Another option to consider might be to integrate Magistrates into the Judicial Service through opening up the possibility of their promotion to the post of Sessions Judge and ultimately as judges of the Supreme Court.


g) Ensuring Availability of Support Staff:

Once the Magistracy is brought within the Judicial Service, the controlling authority of the support personnel serving the Magistracy would need to be determined. If the controlling authority is held to be the Appropriate Authority, then the support personnel would need to be absorbed from the Ministry of Establishment. If new posts of Judicial Magistrates are created, then new posts would also have to be created for their support personnel. Again if the Appropriate Authority is held to be the controlling authority, it would be required to commence recruitment for the posts of additional support personnel.



Long Term Reform:

It is perhaps appropriate to recall that implementation of the Masdar judgment is only one part of a broader judicial reform exercise that remains to be undertaken. This will require consideration of ways and means to ensure more effective access to justice, and greater accountability of those delivering justice to court-users, including through addressing the endemic problems of delays in the disposal of cases and the allegations of corruption within the judicial system. It is hoped that the longer-term measures recommended here will be considered seriously in the light of this concern.



“As to whether the separation of the judiciary will make a real difference, the answer is both yes and no. It is not only a question of the people and the judiciary but also a question of what impact the other institutions of the state will have. It is important for the other institutions of the state which have an impact on the criminal justice system to function independently as well. Because if the police have been politicized and the public prosecutors have been politicized, then a criminal investigation would not be conducted impartially and consequently you wouldn’t be able to build up your case even though you are able to file it in theory. So institutions like the criminal justice system, the police etc, if they do not in practice perform independently, they remain in reality under the control of such external influences. So the end result could easily be that even if the judiciary is independent, a case cannot be made or justice ensured, since it depends on the other institutions to implement the process.”





a) Amendment of the Constitution :

The Government may consider amendment of the Constitution so as to restore the original Articles 115 and 116 of the Constitution providing for full control and discipline of the subordinate courts in the Supreme Court (in line with the observation in the Masdar Hossain Judgment).

b) Determination of the cadre strength of the Judicial Service and the various grades thereof.

The Appropriate Authority must ensure that no judicial post is kept vacant for any length of time. In identifying the cadre strength, it is necessary to pay attention to issues of deputation and training.

c) Preparation of a realistic annual budget and placing it before the Government on time.

The Appropriate Authority could prepare a realistic annual budget estimate for the lower judiciary, and ensure that this is duly placed before the relevant government body and sanctioned, as a prior step to full financial and administrative autonomy.

d) Planning for phased selection of stations and locations of civil/criminal courts and of tribunals to facilitate access to inexpensive justice.

It would be necessary to identify requirements regarding number of safe and protected court buildings, residences for the judicial staff, and judicial lock ups. It is not clear which authority would be responsible for this, as no such specific responsibilities are allocated to the Appropriate Authority. It may be necessary to amend the Rules of Business in order to provide a specified body, possibly the Appropriate Authority, with these responsibilities.

e) Systematic training and continuing education.

Training and continuing education for all judicial officers should be systematic, and could be carried out through the Judicial Administration Training Institute, and also through other initiatives. For example, whenever a new law comes into force, all judges could be briefed on its objects, purposes, scope and application

f) Self-monitoring and supervision scheme of District Courts to be re-introduced.
The practice could be reintroduced, as prescribed first in the colonial period of a District Judge and Subordinate Judge setting aside certain days from the judicial calendar only for the purpose of reviewing orders made and identifying whether any delay has occurred, and submitting an inspection note based on his or her findings. This would enable regular and critical review of the Court’s own work as well as that of its staff
g) Regular and full inspection of the courts in the Districts. High Court Judges must conduct full periodical inspections of all courts in the District, in order to obtain a first hand understanding of their problems, working conditions and environment. This would provide an opportunity for High Court judges to hear individual grievances, ascertain their causes and suggest or provide appropriate remedies suggested or provided.



h) Setting targets. As part of the process of performance review, targets could be established for judicial performance, and regular reviews of targets held. This would assist in establishing an alternative and objective set of criteria for assessing the performance of judicial officers for purposes of advancement, and assist in insulating them from executive interference.



i) System of Annual Recognition and Reward. Establishing a performance based incentive system, and ensuring that this is managed by the Supreme Court, in place of the current system in which advance is largely dependent on political patronage, would help to change the work culture for the subordinate judiciary. While the nature of incentives to be provided would require further consideration, these could include formal letters of commendation from the superior courts, an honourable mention regarding a particular court or judicial officer in their Annual Confidential Report, providing them with better posting stations, accelerated or out of turn promotion, training opportunities within the country and abroad.



j) Greater commitment and more proactive role of the High Court Division.
Being constitutionally charged with the superintendence and control of the subordinate judiciary, the High Court Division is responsible for planning the present and future needs of the judiciary. This could for example be done by the General Administration Committee establishing sub-committees to effectively monitor the functioning of the subordinate judiciary.


k) Greater transparency re judicial administration through Annual Conferences and publication of Annual Reports.
Problems, difficulties and needs regarding the proper functioning of the judicial system can be highlighted and brought to public attention through Annual Conferences of various levels of the judiciary, and by publication of relevant data in Annual Reports. Demands for administrat ive and financial provisioning which are identified through such processes may be communicated to the Government for necessary action. These tasks could be directly authorised by the Hon’ble Chief Justice.





Concluding Remarks

Judiciary forms the basic element of the statehood shaped by deliberate policies to establish social justice and equality of all citizens. In a modern society it must, therefore, reflect the fundamental principle of state policy as well as universal value and ethics of international human rights regime, which are not fundamentally altered by cultural or class differences. In order to meet the challenge of the next century and to accomplish the constitutional goal, to secure equal justice in economic, political and social life, it is important to extend the judicial mind and the due process in all spheres of administrative dealings with the affairs of men and society. Pressure on the government to implement the 12-point directive continues to mount in the current heat of Bangladeshi politics. The Attorney General has threatened not to ask for a further time extension on behalf of the government and the recent creation of an alternative political base headed by former President Badruddoza Chowdhury and Dr. Kamal Hossain has threatened the political legacies currently dominating politics in Bangladesh (Hadley, 2004). In order to get back the trust of the public upon the Judiciary, it is essential to be separated from the Executive. First of all the government has to take steps to remove all the impediments. Such as recently the Govt. Has formed the Judicial Service Commission, the will play an important role to make the judiciary independent. But it is also true that all the roads of justice may not be opened even after the separation of judiciary. Civil society should come forward, and the politicians and executive authority should understand that a sound judicial system keeps equilibrium of a society. If the judicial edifice weakens, the democratic system will not function, and social fabric will be broken down. So, here all the people concerned with judiciary have to play active and effective role from honest point of view. Then the independence of judiciary will bring effective fruits in future.



BIBLIOGRAPHY

Books
– ]The Constitution of the peoples Republic of Bangladesh
– Md: Abdul halim , Constitutional Law of Bangladesh, The Theory and Practice.
- Islam, Mahmudul (2003), Constitutional Law of Bangladesh , Mullick Brothers, Dhaka
2nd Edn (Reprint), at paras 1.85 -1.87, 5.8, 5.233ff

Articles
- Ahmed, Syed Ishtiaq (2003), “Separation of the Judiciary”,The Daily Star 13 October
2003.
- Ahmed, Naimuddin (2001), “The Problems of the Independence of the Judiciary in Bangladesh”, in Bangladesh Institute of Law and International Affairs (BILIA), Human Rights in Bangladesh: A Study of Standards and Practices , BILIA, Dhaka, at
173.
- *Choudhury, Asad Hossain (1997): “The Independence of Judiciary from the Executive- A Constitutional Obligation”, Journal of Dhaka Law Reports , 49 DLR, pp.3-6.
- Farooqui, M I (1996): “Judiciary in Bangladesh: Past and Present”, Journal of Dhaka
Law Reports, 48 DLR, p p.65-68.
- Islam, Mahmudul, ‘Separation of Judiciary’, The Daily Star, 19 March 2002
- Kamal, Mustafa J (1995): “Bangladesh Constitution: Trends and Issues”, Journal of
Dhaka Law Reports , 47 DLR, pp.46 -53.
- Rahman, Latifur CJ (2000): “Judicial Independence and Accountability of Judges and the Constitution of Bangladesh”, Journal of Dhaka Law Reports , 52 DLR, pp.65-69.

Reports
- GoB, Strategy for Legal and Judicial Reforms, September 14, 2000 (mimeo)
- Richard B. Hoffman and Samuel D. Conti, ‘Reorganising the Regis trar’s Office to Improve Case Management and Court Administration’, Legal and Judicial Capacity Building Project for Bangladesh, Ministry of Law Justice and Parliamentary Affairs, GoB, November 2002 (mimeo)
- Asian Development Bank, Law and Policy Reform at the Asian Development Bank,
2003.

Constitution/Laws
Constitution of Bangladesh, 1972 Chapters II, III, VI, IX, Fourth Schedule
Code of Criminal Procedure 1898

Cases
Bangladesh
Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl) 1
Shahar Ali v AR Chowdh ury 32 (1980) DLR 142
Bangladesh v Shahjahan Siraj 32 (1980) DLR (AD) 1
Commissioner of Taxes v Justice S. Ahmed 42 (1990) DLR (AD) 162
M. Saleemullah v Bangladesh (13th Amendment case)
Kudrat e Elahi Panir v Bangladesh 44 (1992) DLR (AD) 319
Abdul Bari Sarkar v Bangladesh 46 (1994) DLR (AD) 37
Aftabuddin v Bangladesh 48 (1996) DLR HCD 1
Abu Bakr Siddique v Mr. Justice Shahabuddin Ahmed 49 (1997) DLR 1
Bangladesh v Shafiuddin Ahmed 50 (1998) DLR (AD) 27
Idrisur Rahman v Shahiduddin 1999 BLD 291
Bangladesh v Idrisur Rahman 1999 BLD (AD) 291
Secretary, Ministry of Finance v Md. Masdar Hossain and others 20 (2000) BLD (AD)
India
All India Judges Association v Union of India and others (1992) 1 SCC 119
All India Judges Association v Union of India and others (1993) 4 SCC 288
All India Judges Association v Union of India and others (2002) 4 SCC 247
Chief Justice Andhra Pradesh v LAA Dikshitulu AIR 1979 (SC) 193
BS Yadav v State of Haryana AIR 1981 SC 561

Pakistan
Sharaf Faridi and 3 others v. The Feder ation of the Islamic Republic of Pakistan PLD 1989
Karachi 404.
Government of Sind v Sharaf Faridi and others PLD 1994 SC 105



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