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Separation of the Judiciary


Separation of the Judiciary Since the beginning of the British colonial rule, the question of separation of the judiciary from the executive has been a continuing debate. By Regulation III of 1793, Governor General cornwallis divested the Collector of all judicial powers. The judge of the Diwani Adalat (civil court) came to be known as Judge-Magistrate. After Lord Cornwallis and until the year 1828, there was considerable debate on the question of separation of the judiciary from the executive at the district level. His successor wellesley supported the concept of separation because it was in conformity with the principles of British Constitution. His attempt to extend the system to other provinces such as Madras, was opposed by Munro who found the system wholly artificial and foreign. From 1814 onwards, the east india company pressed the Bengal Government to consider the Madras model ie union of judicial and executive powers at the district level. Ultimately Lord Hastings government empowered the Governor General-in-Council by Regulation IV of 1821 to authorize the Collectors and other Revenue officers to exercise powers of magistrates. By 1829 vesting of magisterial power on the Collectors and other Revenue Officers was complete. The controversy with regard to the issue of separation reappeared and continued until 1921. During the period from 1853 to 1921, as many as four reports were prepared on the issue of separation of the judiciary from the executive. The first was in 1893, the second in 1900, the third in 1908 and the fourth in 1913. Inspite of those reports, the structure as laid down in the Code of Criminal Procedure continued until 1921. Thereafter Islington Commission was formed by the Secretary of State for India in 1912 to enquire into the problems of judicial administration in India. In its report submitted on August 14, 1915 the Commission opined that legislation would be necessary to effect separation of executive and judicial functions of the officers. On April 5, 1921 the Legislative Council adopted the following resolution: 'This Council recommends to the Government that early steps be taken for the separation of the judiciary from the executive functions in the administration of this Presidency.'

The Government of Bengal set up a committee headed by a judge of the High Court to work out the details of the scheme of separation. In 1922 the report was submitted, but for reasons not publicly known, status quo was maintained.

The Constitution of 1956 of the then Pakistan adopted as one of the directive principles of state policy, the separation of judiciary from the executive as far as practicable. To give effect to the constitutional provision, the then government of East Pakistan introduced the Code of Criminal Procedure (East Pakistan Amendment) Bill in the East Pakistan Legislative Assembly, and it was passed and assented by the governor on 11 November 1957. In the statement of objects and reasons of the bill it was stated that the scheme of separation would be effected gradually. The law provided for notification by the government to implement the provisions of the Act to such area as and when provisions of the Act was to be applied to it. But the provisions of the Act could not be implemented even gradually due to the resistance from the officers of the administrative branch by issuing any such notifications. Subsequent Constitution of Pakistan (1962) did not contain any provision for separation of the judiciary from the executive. After liberation of Bangladesh, the Constitution of Bangladesh, in regard to the subordinate courts, provided for adequate safeguards for ensuring the independence of such courts. It required that appointment of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President (a) in the case of district judges, on the recommendation of the Supreme Court, and (b) in case of any other person, in accordance with rules made by the President after consulting the Public Service Commission and the Supreme Court.

The Constitution further required that 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 Supreme Court. In addition to the above safeguards the Constitution of 1972 provided in Article 22: 'The State shall ensure separation of the judiciary from the executive organs of the State.'

The curtain of the continuing debate regarding the separation of the judiciary from the executive was finally drawn consequent upon a judgment of the Appellate Division of the Supreme Court on 2 December 1999 in Masdar Hossain's Case (52 DLR, 2000). The judgment, in effect, declared that Bangladesh civil service (judicial) be considered as an entity separate from those of other services, and directed the government that magistrates exercising judicial function should be separated from the administrative cadre. The recruitment, pay scale, posting etc should be separate from executive control and supervision. Such powers should be vested in the Supreme Court. It was further directed that (a) one Judicial Service Commission, (b) one Judicial Pay Commission for judicial officers be formed, and (c) all necessary amendments be made in the relevant laws to give effect to the above directives.

Two political governments did not implement the directives of the Appellate Division due to vehement opposition of the administrative branch of he Civil Service. Caretaker government that came into existence on January 11, 2007 promulgated the Code of Criminal Procedure (Amendment) Ordinance 2007 (Which subsequently became an Act in 2009) for the purpose of separation of the judiciary from the executive branch of government. Under the said Ordinance (now Act) magistrates are of two classes: judicial magistrates and executive magistrates. Judicial magistrates are to perform judicial functions and executive magistrates are to perform executive functions. In addition to the promulgation of the said Ordinance, Caretaker Government reframed Judicial Service Commission Rules and Judicial Service Pay Commission Rules in 2007 and reconstituted the Judicial Service Commission and Judicial Service (Pay Commission). Similarly Judicial Service (Construction of Service, Appointment in Entry Post, and Suspension, Dismissal and Removal) Rules and Judicial Service (Posting, Promotion, Granting of Leave, Control, Discipline and other Conditions of Service) Rules were also reframed by the Caretaker Government for fully implementing the directions in the said decision. By notification dated November 1, 2007 amended Code of Criminal Procedure was given effect to. Since then judicial officers have been performing judicial functions of magistracy as judicial magistrates and officers of the administrative branch of the Civil Service have been performing functions of executive and administrative nature as executive magistrates such as maintenance of law and order, prevention of breach of peace, and commission of offences, granting, suspension and cancellation of licence, sanctioning of prosecution or withdrawing from prosecution. In addition to the above, executive magistrates have been vested with the power of Mobile Court, and in that capacity they can impose fine for violating provisions of certain laws and in default of payment of fine by the offender, he could be sentenced to imprisonment for limited period. As a result of the separation of judiciary, disposal of criminal cases in the courts of judicial magistrates including those working as metropolitan magistrates has increased twofold compared to the disposal of such cases previously by the magistrates of the administrative branch of the Civil Service and liberty of the citizens are more secure now than before. [AMM Shawkat Ali]

Bibliography 52 DLR (2000); AMM Shawkat Ali, Aspects of Public Administration in Bangladesh, Nikhil Prokashon, Dhaka, 1993, pp. 96-110,1504; Justice KE Hoque, Administration of Justice in Bangladesh, Dhaka, 2012, pp. 53-55; Code of Criminal Procedure (Amendment) Act, 2004.