Whither separation of judiciary?

Regulation III of 1793 divested the Collector of his powers as a judge. The reforms thus introduced by Lord Cornwallis was predicated on the premise that 'political power is essentially corrupting and invariably abused: that power, to be exercised with safety, must be reduced to a minimum, even then kept divided and counterbalanced'.

After Cornwallis and until the year 1828, there was considerable debate on the question of the desirability of effecting separation of powers at the district level. There were two opposing schools of thought who advocated in favour and against such a move. Wellesley, successor of Cornwallis supported the move for separation on the ground that the system was founded on the 'principles of the British Constitution'. His attempt to extend the system to other provinces such as Madras was opposed my Munro who found the system wholly artificial and foreign.

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The controversy with regard to the separation of executive from the judicial functions appeared again in 1853 and continued until 1921. During this period as many as four reports on the subject were prepared for the government. The first was in 1893, the second in 1900, and the third in 1908. The fourth was in 1913. The last one is a compilation of the earlier reports including a new scheme for separation. Despite these reports, the structure without any change continued until 1921 when the Bengal Legislative Council (BLC) took up the question of separating the judicial from the executive functions.

On April 5 of the same year, the BLC adopted the following resolution: "This Council recommends to the Government that early steps be taken for the total separation of the judicial from the executive functions in the administration of this Presidency".

The Government of Bengal accepted the recommendations. As a preliminary step, the government found it desirable that a committee should be formed to elaborate a practical working scheme for the separation of executive from the judicial functions in the administration of Bengal and to report on the cost thereof. Consistent with the view taken by the government, a six-member committee was formed with a judge of the High Court as President, four members of BLC and a civil servant as members. The substantive recommendation, among others, made by the committee envisaged two distinct branches of the Bengal Civil Service. It was to be divided into (a) magisterial and (b) administrative and revenue branches. The control and supervision (a) should be left with the judicial authorities and (b) with the executive branch.

The government of Bengal acknowledged the report of the committee in November 1922. The government decided to make the report public and also wished to obtain the views of local officers and the High Court.

It is not known what action did the government take after eliciting public opinion, the views of the High Court and of the local officers. The fact remains that the separation proposed by the committee did not take place. The structure and functions of the magistracy under the control of the District Magistrate continued even after the end of the British Rule.

Pakistan period (1947-71)

The Constitution of the Islamic Republic of Pakistan was passed by the Constituent assembly on February 29, 1956. The Constitution adopted, as one of the Directive Principles of State Policy, separation of the judiciary from the executive as far as practicable.

To give effect to the constitutional provision, the then government of East Pakistan prepared a bill for separation of the judiciary from the executive. The bill titled 'The Code of Criminal Procedure (East Pakistan Amendment) Bill 1957' was placed before the East Pakistan legislative assembly on March 14, 1957.

On the first day of March 1962, the second Constitution providing for a presidential form of government and a restricted franchise came into effect. The Directive Principles of State Policy under the new Constitution did not contain any provision for the separation of the judiciary from the executive. The preamble to the constitution merely asserted that the independence of the judicature should be ensured.

How this independence would be ensured was not spelt out in the Constitution. This is a major difference between the earlier Constitution of 1956 and the Constitution of 1962. Even in the Constitution of 1956, the approach taken was a cautious one in that it explicitly recognised that complete separation of the judiciary from executive was not possible or desirable.

Bangladesh period (1972-1998)

It is possible to argue that the 1957 law was only a half-hearted arrangement for separation of judicial from executive functions. This line of reasoning is premised on the ground that without giving complete control over the personnel of the subordinate judiciary and the judicial magistrates to the Supreme Court effective separation cannot take place. The 1972 Constitution was fully cognizant of this gap and therefore provided specific authority for the Supreme Court to exercise full control over the subordinate judiciary.

The constitutional amendment of 1975 relating to judiciary, however, inserted a new provision, which reads: "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".

At its best, the above new provision was an ornamental one. If the executive had retained full control over the subordinate judiciary in such matters as posting, promotion, grant of leave and discipline, there was no question of their being independent in the exercise of their judicial functions.

Before the new scheme was fully operational, there was a violent change of government eventually leading to military rule in August 1975. The question of separation of judiciary from the executive once again faded into the background.

In January 1987, a bill was prepared for presentation to the Parliament for separation of the judiciary from the executive. The statement of objects and reasons read as under:

"The demand for separation of the Judiciary from the Executive is universal in order to ensure the independence of the Judiciary and safeguard the fundamental rights of the people. Moreover, one of the State principles of the Constitution of the People's Republic of Bangladesh is to ensure independence and impartiality of the Judiciary by effecting separation of the Judiciary from the Executive. It may be recalled that meanwhile Pakistan and India have taken steps to free the Judiciary from the influence of the Executive at all levels by making necessary amendments in the Code of Criminal Procedure, 1898 in 1973 and 1974 respectively with a view to reflecting the hopes and aspirations of the people and in order to fulfil the constitutional obligation.

In this Bill, some important proposals for amendment of the Criminal Procedure, 1898 (V of 1898), are initiated to incorporate the necessary provisions for the purpose of effecting total separation of the Judiciary from the Executive in order to give concrete shape to the aspirations of the people and to fulfil our constitutional obligations".

After the bill was placed before the Parliament, it evoked mixed reactions from the community of lawyers. A section of lawyers hailed the move while others "commented that the bill would not bring any qualitative changes unless Articles 115 and 116 of the Constitution of Bangladesh are restored to their former position". It was further stated that "the Ministry of Law, an organ of the Executive, for all practical purpose, is controlling the lower judiciary and the subordinate judges are frequently summoned for briefing and guidance".

For reasons, which are yet to be researched, the bill for separation of the judiciary from the executive never saw the light of the day as an act of Parliament. The history of governmental attempts to separate judiciary from executive during the last hundred years or so clearly points out that any move to bring about a meaningful separation depends almost wholly on vesting the control of subordinate judiciary, in the Supreme Court. This control aspect should include such elements as transfer, promotion and discipline of the members of judicial service.

Now (1999-2004)

The trend of events in respect of separation of judiciary now may be discussed. The Daily Star, on November 19, 2003 reported the current state of things under the headline 'Judiciary separation gets 15th deadline'. The process started in 1999 when the Supreme Court issued a directive to the government to separate judiciary from the executive. It was in the nature of a 12-point roadmap to effect the separation. Since then the successive governments have been buying time to complete the process of separation of judiciary from the executive.

It is reported that since the 1999 directives, the Awami League government took seven extensions of the first deadline set by the Supreme Court. The caretaker government took three extensions and the present government took five extensions. It is also reported that the caretaker government, in early October 2001, was all set for implementation of the directives, but decided to leave it to the elected government. The process thus has become a never-ending one.

The latest prayer for extension of time is also accompanied by clarifications sought by the government. The government has raised the issue of jurisdictional competence of the Supreme Court to frame rules for separation of the judiciary from the executive. The government's view apparently is that framing of rules lies within the domain of the legislature. This argument should be seen in light of the constitutional injunction that "All authorities, executive and judicial, in the Republic shall act in aid of the Supreme court".

The rather unending process of separation of the Judiciary from the Executive is indicative of the lack of equilibrium in the three organs of the State. This has contributed in no small measure to create an environment that has led to collapse of values and norms that should guide them in the management of public affairs in public interest rather than serving the narrow political ends. The wilful sacrifice of the classical doctrine of separation of powers under a parliamentary form of government has further vitiated the environment in the post 1991 period.

On the question of equilibrium of the three organs of the State, it must, however, be said that the higher judiciary, represented by both the divisions of the Supreme Court, has been able to play its mandated role of safeguarding fundamental rights of all classes of citizens. This is perhaps the only silver lining in the dark cloud that hangs over the political administrative environment. However, there is a limit to which the Supreme Court can stretch itself unless the two other organs, in particular, the executive is supportive of the concept and practice of rule of law. There is adequate empirical evidence to justify the conclusion that such support is not in place.

AMM Shawkat Ali is a former Secretary, Ministry of Agriculture.