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Cox’s Bazar International University

Title: “Independence of Judiciary in Bangladesh and

Pakistan: A comparative study”

Submit by Submit To
Kaisar hamid nayan Mr Md Razidur Rahaman
ID:190110200462 Head of the department
Date:18th May 2020 Department of law.
Hello:01407143433
Cox’s Bazar international University
Mail-khnayan2000@gmail.com

Content

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Content
 Abstract:
 Introduction:
 Principles of Independence of Judiciary:
 Individual Independence of the Judges:
 Substantive Independence of the Judges :
 Conditions for independence of judiciary
 Mode of appointment:
 Appointment by the executive :
 Security of tenure:
 Pakistan Period
 Bangladesh Period:
 Independent judiciary of Pakistan :

 Conclusion:

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Independence of Judiciary in Bangladesh and Pakistan: A comparative study”

Abstract:

Purpose – The aim of this paper is to analyze the status of independence of the judiciary in

Bangladesh and Pakistan . It is recognized worldwide that an independent judiciary is the sin qua
non of democracy and good governance. However, without separation of the judiciary from other
organs of the state . Absolute independence of judiciary is not possible. An attempt has been
made in this paper to sketch. The brief historical background of judicial system in Bangladesh
through analyzing the meaning and basic principles of judicial independence and to what extent
these principles exists in Bangladesh and Also Pakistan independence.

Introduction:

Independence of judiciary is certainly a foundation stone of rule of law, good governance and
democratic practice all over the world. It protects the weak from the powerful; the minority from
the majority; the poor from the rich; yes, even the citizens from excesses of government.
However, from time immemorial the demand for separation of judiciary and judicial
independence was a much-debated issue among policy reformers, democratic thinkers and legal
practitioners in Bangladesh. Since, the present judicial system of Bangladesh is basically a
replica of the system introduced by British rulers and the rulers of the early historical periods
including British and Pakistan always attempted to control the judiciary through different
mechanisms, which include the appointment, tenure and discipline of judges

Principles of Independence of Judiciary:

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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. This concept of independence
of judiciary, as recent international efforts to this field suggests, comprises following five
meanings of judicial independence. (Bari, 1993).

Individual Independence of the Judges:

Individual independence of judges means that a judge is free to exercise judicial functions
without any fear or anticipation of retaliation or reward. (Ali Akkas, 2004: 21) It requires that 34
Banglavision Research Journal Vol. 16, No. 1, 2016 a judge should decide cases in accordance
with an impartial assessment of the facts and understanding of the law without any direct or
indirect improper influence or interference from any source or for any reason. In fact the first
essential for an independent judiciary is that the individual judge should enjoy complete freedom
in discharging his or her judicial functions and other official duties. (Ali Akkas, 2004 : 22).

Substantive Independence of the Judges :

Substantive independence, which is also described as functional or decisional independence,

means the - independence of judges to arrive at their decisions in accordance with their oath of
office without submitting to any kind of pressure-outside or inside (from government and other
centers of power, public and private; and on the other hand, the inside pressures from parties
themselves) but only to their own sense of justice. (Halim, 2014:341) In determining the
minimum standards of judicial independence the international Bar Association suggests in 1982
that in discharging of his judicial function a judge is subject to nothing but the law and the
commands of his conscience.

Conditions for independence of judiciary

Independence of judiciary dependence on some conditions which are as follows:

a) Mode of appointment;

b) Security of tenure; and

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c) Adequate remuneration and privileges.

Mode of appointment:

The existing methods by which judges are chosen in different countries of the world are given
below:

i. Election by the people;

ii. ii. Election by the legislature; and
iii. iii. Appointment by the executive.

Appointment by the executive :

The appointment of judges by the executive is the most common and available method of choice
and this system is in vague almost all countries. This may be of two types—

a) By the executive independently; or

b) By the executive after consultation with the court or from a list of nominees presented by the
court or with the consent of the legislature.

The first method is sometimes contended to be objectionable in the sense that personal favoritism
or political consideration may determine the appointments and instances are cited from Britain,
France, and USA and largely from third world countries. Mr. Briand, when was the Minister of
justice of France in 1912 himself declared that the judges had become the pay of politicians. The
second method is most democratic and objective. Because when the court prepares a list or the
Chief Justice consults, which is closely associated with the performance of Bar, will select the
name of those lawyers who are men of high legal acumen, integrity, independence of justice etc.
Such a method of appointing judges is conducive to the development of the standard of judicial
decisions on the one hand and on the other hand, it is therefore, perfect to ensure impartial justice
in the country.

Security of tenure:

Security of tenure for the judges is most important in securing their independence and
impartiality. Security of tenure means that

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a) Either judge is to be appointed for the whole life i.e.65 or 75 years.

b) During this tenure the conditions of service must be such that they can fearlessly administer
justice.

In other words, the power of transfer or removal of a judge must be a strict and difficult one. If
the transfer or removal of a judge is to depend upon the pleasure of a particular person or the
executive, neither independence nor impartiality can be ensured, because in such a situation
judges will be under a constant fear of being removed or transferred from office, if they give
decisions against the executive. In UK judges are guaranteed their security of tenure; they can be
removed by the King only when both the Houses pass a resolution presumed him for corruption
or moral turpitude. In Independence of Judiciary: Challenges and Possibility 37 the USA judges
of the Supreme Court can be removed by impeachment. The process of impeachment is difficult
in that the House of Representatives prefers the charges and the trial is held by the Senate.

Pakistan Period

After separation and independence in 1947 no step was taken in East Pakistan. The United Front
included the idea of separation in its 21 points formula in 1954.The first constitution in
independent Pakistan was adapted in 1956.Unlike the government of India Act 1935 and the
constitution of India Act this Pakistan constitutions of 1956 did not provide for any provision
regarding ‘subordinate courts’ or ‘magistracy’; these was to be regulated by the court of civil
procedure and the code of criminal procedure. In 1957 the East Pakistan Provincial Assembly
passed the code of criminal procedure (East Pakistan Amendment) Act 1957.which dealt with
separation

Bangladesh Period:

After independence of Bangladesh the Constitution of the Peoples’ Republic of Bangladesh was
adopted in 1972. Provision was made in Article 22 in the fundamental principles of state policy
that the state shall ensure the separation of judiciary from the executive organs of the state. In
1987 by an amendment to the criminal procedure code Ex President H.M Ershad prepared a bill
for separation of judiciary. However, the bill did not see the light of the day. In Pakistan
separation was done in 1973 and in India in 1974 by an amendment to the criminal procedure

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code. In 1990 the issue of separation of judiciary was put into the manifesto of the three-party
alliance movement against H.M Ershad regime. In every election after 1990 both the BNP and
AL had breached commitment in their manifesto that if they going to power they would separate
judiciary from the executive. In 1991 a private member’s bill by Mr. Salauddin Yousuf namely
the constitution (14th Amendment) bill 1991, was introduced for further amendment of Articles
95,98,115 and 116 of the constitutions. The bill was sent to a select committee which had about
13 meetings to consider it. The bill tried to restore the provisions of the 1972 original
constitution envisaged by the constitution-makers. The revised Bill was submitted in parliament
in 1994.The comparison of the original bill and the revised bill reveals that ‘the BNP has come
out as the champion for the 4th amendment of the constitution though it is the BNP which never
misses any opportunity to condemn AL for the 4th amendment of the constitution.

Independent judiciary of Pakistan :

In Pakistan, lawyers and their organisations have been active in the struggle for a Constitutional
Democracy and Rule of Law for a long time. The first such struggle was initiated countrywide
by the bar associations at Lahore, Karachi and Dacca in the early sixties after the country’s first
martial law was imposed in 1958. Though short lived, since it was taken over by political parties,
this movement was launched at a time when bar councils had not even come to exist yet.

In 1980, a Lawyers’ convention was attended by over 2000 lawyers in Lahore that resolved to
organize a Pakistan wide movement against Martial Law and for return to democratic rule. This
was at a time that Zulfikar Ali Bhutto, the over thrown Prime Minister had just been hanged on
the orders of a puppet Supreme Court, public hanging of certain convicts had been ordered,
Summary Military Courts had been established in all important towns which would hold their
proceedings by the roadside trying those accused of violating Martial Law and flogging them on
the spot when convicted.

Conclusion:

Conclusion From above discussion we can conclude that the judiciary of our country is not in
fact independent. It is evident that there have direct and indirect influences by the executive over

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the judiciary, while separation of judiciary is essential for every country. It is impossible to
ensure rule of law, upon which other human rights depends, without providing independent
courts and tribunals to resolve dispute independently. The complete independence of judiciary is
the first major step in the process of its development. Though separation of judiciary has been
made but appointment of High Court Judges with political interference shall keep the separation
of judiciary in pen and paper which is true and unlawful but to some extent we the general
people are responsible for this situation. However, It is alarming that political interference in the
judiciary system is one of the main reason for our political instability. If we are aware of our
right as a responsible citizen of the country then we can change and establish an independence
judiciary system without having any political interference.

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