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Analyzing the Independence of the Bangladesh Judiciary

The independence of the judiciary serves as a fundamental pillar of democratic governance, enabling it to serve as a watchdog over the executive and legislative branches. This principle is embedded in numerous constitutions globally, such as the Constitution of Bangladesh. Nonetheless, the practical implementation of judicial independence often encounters obstacles. The Supreme Court of Bangladesh, the highest court in the judicial system in a country grapples with its own complexities related to independence, which stem from historical, political, and socio-legal influences.

Constitutional and Legal Framework:

The Bangladesh Constitution, adopted in 1972, explicitly guarantees the independence of the judiciary. Articles 94-116 of the Constitution outline the structure, authority, and independence of the Supreme Court. Article 116 ensures the separation of powers between the judiciary and the executive, empowering the Supreme Court to oversee judicial officers and magistrates.

Despite these constitutional protections, judicial independence has faced challenges due to constitutional amendments and political interference. The Fourth Amendment in 1975 notably weakened judicial independence by increasing executive control over judicial appointments and tenure. It eliminated the Supreme Court's advisory jurisdiction, vesting all control in the executive branch.

The current Constitution safeguards judicial independence through several provisions. Firstly, Article 7 establishes that all powers in the Republic are subject to the Constitution, emphasizing the judiciary's role in ensuring no branch oversteps its authority. Article 22 explicitly mandates the government to ensure judicial independence. Furthermore, Article 94(4) explicitly states that the Chief Justice and other judges are independent in their judicial functions, subject only to the Constitution.

Article 95(1) outlines the appointment process for judges, ensuring the President consults with the Chief Justice for appointments. While the President appoints judges and controls judicial service personnel (Article 115, 116), this power is exercised in consultation with the Supreme Court.

Article 96 allows for the removal of judges for misconduct or incapacity, but notably, there are no specific constitutional provisions addressing corruption or criminal offenses.

Although the formal separation of the judiciary took place on November 1, 2007, and the Code of Criminal Procedure was amended on April 10 in that same year to effectuate this intended separation - it has not been fully separated since then. Following immediately after the separation, the executive assumed over 36 judicial powers under what was termed as Mobile Courts in clear violation of Article 22 and also other provisions of the constitution.

This includes appointment of prosecutors and judges by other means. There have been many judgments by the High Court Division to remove the draconian impacts of these mobile courts but they are pending in the Appellate Division of the Supreme Court of Bangladesh for long for obvious political pressure and interference. As a result, the full separation of judiciary has not yet attained what it was supposed to accomplish.

Judicial Appointments and Tenure:

The judiciary's independence hinges on the integrity of the judicial appointment process. In Bangladesh, the President appoints Supreme Court judges, but the Constitution lacks clear criteria and a transparent procedure, raising concerns about political influence. While the Chief Justice's recommendations play a mitigating role, the final decision remains with the executive branch headed by the prime minister of the country. The President in fact acts on the advise of the prime minster.

While judges enjoy constitutional protection with secure tenure until the age of 67, the removal process has proven controversial. The Supreme Judicial Council, responsible for judge removal, has faced accusations of political manipulation, jeopardizing the very security and independence it aims to safeguard.

Political Influence on Bangladesh's Judiciary:

Political influence is a major concern in the Bangladesh judiciary. The judiciary is often perceived as biased towards the ruling party, especially in high-profile cases involving political figures and sensitive issues. The executive branch's influence over judicial appointments and promotions creates a climate where judges may feel obligated to make decisions that align with the interests of those in power to protect their positions and advance their careers.

The judiciary's role in adjudicating political corruption, cases related to opposition leaders/groups perceived as inimical to the interests of the party in power and election-related disputes is regularly scrutinized. Critics allege that rulings in these cases often favour the current government, casting doubt on the judiciary's impartiality.

In 2016, tensions arose leading to Justice Sinha's forced retirement. The government's concern stemmed from the potential legal challenge to the 16th amendment, which granted parliament the power to remove judges, effectively usurping the judiciary's authority.

The controversial forced resignation of Former Chief Justice Surendra Kumar Sinha, following his criticism of the government in a significant ruling, serves as a stark illustration of executive interference in judicial matters. As reported by David Bergman, a correspondent of Aljazeera. the head of the government represented by the prime minister had demanded the Chief Justice's resignation after he declined her personal plea in July 2017 to support a bill that would have authorized parliament to dismiss judges.

Surendra Kumar Sinha, in his contentious book 'A Broken Dream: Rule of Law, Human Rights & Democracy,' claims that the Directorate General of Forces Intelligence (DGFI), Bangladesh coerced him to resign or face dire repercussions for a businessman who had been detained in secret DGFI custody for over two months.

Bangladesh's former chief justice, Surendra Kumar Sinha, was subsequently sentenced to 11 years in prison in absentia for corruption. The 70-year-old, who headed the Supreme Court as the first Hindu Supreme Court Chief Justice in Muslim majority Bangladesh, was convicted in a case that opposition groups and supporters claim is politically motivated. Sinha, who ruled in 2017 that parliament could not dismiss judges, is seen as a symbol of judicial independence by many lawyers. This ruling was widely praised for safeguarding the independence of the judiciary.

The 16th Amendment of the Bangladesh constitution poses a significant threat by granting Parliament the authority to remove Supreme Court judges through an amendment to Article 96.

Socio-Economic Factors:

The socio-economic conditions in Bangladesh have an impact on the independence of the judiciary. Poverty, illiteracy, and lack of legal resources hinder citizens' ability to seek justice through the courts. This situation puts pressure on the judiciary to deliver justice fairly and efficiently. Socio-economic disparities can influence the judiciary's operations, as wealthy individuals and organizations may wield undue influence over judicial proceedings. Enhancing judicial independence requires addressing these socio-economic challenges. Providing sufficient funding for the judiciary, expanding legal aid services, and upgrading judicial infrastructure are crucial steps toward a more independent and effective judiciary.

The executive head of the government often tries to control the judiciary by curtailing its financial independence. A judiciary reliant on executive funding faces significant challenges, undermining the very foundations of a fair and impartial legal system.

Firstly, financial dependence creates a clear conflict of interest, jeopardizing judicial independence. The executive branch can exert undue influence, pressuring judges to rule in their favor, compromising the impartiality and neutrality essential for fair justice.

Secondly, this dependence erodes the rule of law. A financially constrained judiciary might be tempted to selectively enforce laws, favoring the executive's interests and avoiding accountability for government actions. This leads to operational inefficiencies, with insufficient funding resulting in inadequate resources, dilapidated court facilities, and staff shortages. Consequently, case backlogs and delays become commonplace, hindering timely justice.

Furthermore, public trust in the judiciary erodes as perceptions of bias and potential corruption grow, diminishing the legitimacy of judicial rulings. On an international level, a dependent judiciary negatively impacts assessments of governance and human rights, affecting foreign relations and investment.

In conclusion, a judiciary financially dependent on the executive weakens its role as a check on governmental power, jeopardizes the fairness and efficiency of the legal system, and undermines democratic principles and public confidence in the rule of law.

Striking a balance between judicial independence and accountability is delicate endeavor. Judicial independence is paramount, but judges should also be subject to accountability to maintain integrity and deter misconduct. In Bangladesh, the Supreme Judicial Council is responsible for investigating allegations of judicial misconduct. However, the efficacy and impartiality of the Supreme Judicial Council have been the subject of scrutiny.

The media and civil society contribute to judicial accountability, but their impact is constrained by legal and political limitations. Freedom of expression is essential for ensuring judicial accountability, but journalists and activists in Bangladesh often encounter harassment and legal obstacles, especially when criticizing judicial rulings or exposing judicial corruption.

Reform Efforts and the Way Forward:

Enhancing judicial independence through reforms has been a persistent concern in Bangladesh. Diverse measures have been suggested and, at times, implemented to bolster judicial independence. These measures encompass advocating for transparency and merit in judicial appointments, safeguarding judges from executive influence, and enhancing judicial service conditions.

A notable milestone in judicial independence was the separation of the judiciary from the executive, finalized in 2007 as per the Supreme Court's verdict in the Masdar Hossain case. The separation sought to diminish executive oversight of lower courts and promote judicial autonomy.

Persistent challenges exist. Guaranteeing a transparent and impartial judicial appointment process is imperative. Establishing an apolitical commission for judicial appointments, guided by clear criteria and processes could minimize political interference. Fortifying the role and autonomy of the Supreme Judicial Council is crucial for accountability without jeopardizing judicial independence.

Additionally, nurturing a culture of judicial independence demands sustained efforts to uphold the rule of law, safeguard freedom of expression, and foster civil society involvement. International organizations and foreign judiciaries can contribute by sharing expertise, providing financial assistance, and facilitating platforms for discussions on judicial reforms.

The issue of judicial independence of the judiciary including Supreme Court of Bangladesh is complex and is influenced by various factors including constitutional aspects, political power, judicial behavior, and socio-economic environment. The Bangladesh Constitution offered a strong foundation for the judicial branch's independence as established in India, but practical realities and successive political administrations have hindered this.

The persistence of executive interference over the judiciary in Bangladesh stems from unresolved theoretical complexities in the justice system. It is necessary to undertake reforms that fully guarantee the real judicial independence, including the absence of political and military influence and open procedures, and the desire to follow the principles of the rule of law. By focusing on these issues, Bangladesh can improve the status of its judiciary and enhance its capacity for just, fair and democratic governance based on honest elections.

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