Draft UNDP Policy Paper :

Practical Steps for Separation of the

Judiciary from the Executive in
Bangladesh

Sara Hossain/Tanjib-ul Alam

Dr. Kamal Hossain and Associates
Presentation to Donor LCG, BRAC Inn
26 February 2006
DISCUSSION POINTS
1. Why do we need separation?
2. What is the current structure of the
courts?
3. The Masdar Judgment
4. What has happened since Masdar?
5. Concerns regarding
‘implementation’ to date
6. What practical steps can be taken
now to move forward?
THE NEED FOR SEPARATION
1. Supreme Court
¾ Lawyers and lower court judges appointed by President, but
often w/o effective consultation with CJ
¾ Increasing perception of pro-executive bias in judicial
decision-making and administration

2. Lower Courts
¾ Executive officers, appointed by the MoL, undertaking judicial
roles
¾ Politically partisan appointments, transfers, promotions
¾ Increasing perception of pro-executive bias/interference in
judicial decision making

IMPACT
Denial of right to equal access to justice
 CONSTITUTIONAL FRAMEWORK

Art. 109
HCD’s superintendence and control over lower courts

Art. 115
Appointment of President of judicial officers and
magistrates exercising judicial functions according to Rules
framed by him

Art. 116
Control and supervision by President in consultation with SC
CONSTITUTION contd
Art. 116A
‘subject to constitution, judicial officers
and magistrates exercising judicial
functions to be independent in judicial
functions’

4th Schdule Art. 6 (6)

CH 2 of Part VI (re subordinate courts) ‘shall
be implemented as soon as practicable’
COURT STRUCTURE
1. SUPREME COURT
z Appellate Division 7 judges
z High Court Division 72 judges

2. SUBORDINATE COURTS

2.1 CIVIL COURTS 780 sanctioned posts

z District Judge
z Additional District Judge
z Joint District Judge
z Assistant Judge
COURT STRUCTURE
2.2 CRIMINAL COURTS @600
Magistrates
z Courts of Sessions
z Additional Sessions Judge
z Assistant Sessions Judge
z Metropolitan Magistrate
z Magistrate of the First Class
z Magistrate of the Second Class
z Magistrate of the Third Class
Court Structure 3
2.3 SPECIAL COURTS AND TRIBUNALS
z Administrative Tribunal
z the Environment Court
z the Family Court
z the Juvenile Court
z Labour Court / Labour Appellate Tribunal
z Money Loans Court
z Court of Settlement
z Taxes Appellate Tribunal
z Special Tribunal on Violence against Women and
Children
z Special Tribunal for Speedy Trials
EFFECT OF LACK OF SEPARATION

MAGISTRATES
{ political influence
{ executive control over postings

{ ‘mixing’ of judicial & executive functions

JUDICIAL OFFICERS
{ Deputation to admin/executive posts
MASDAR HOSSAIN
5 key characteristics of independence
1. security of tenure
2. recruitment to the Judicial Service as
permanent and through a transparent Judicial
Service Commission
3. security of emoluments including pension etc.
4. institutional functional independence of the
Subordinate Judiciary from Parliament and
5. Executive financial autonomy within the
sphere/funds allocated.
THE ROADMAP: MASDAR
DIRECTIONS
1. Judicial Service is different from Civil Service
2. Only President has authority to create and
establish a judicial service and a magistracy
3. Govt Order creating BCS (Judicial) Cadre and
other administrative cadre unconstitutional
4. GoB to establish “forthwith” Judicial Service
Commission with majority members being senior
SC judges
5. GoB to frame Rules for posting, promotion, grant
of leave etc. consistent with Art. 116;
6. GoB to establish Judicial Pay Commission
MASDAR DIRECTIONS contd
7. Primacy of SC’s views over executive in exercising
control and discipline of persons in judicial service
8. Rules under Art. 133 to be framed to ensure essential
conditions of judicial independence (i) security of
tenure, (ii) security of salary and other benefits and
(iii) institutional independence from the Parliament and
Executive
9. Budgetary independence of SC
10.Judicial Service Members subject to Administrative
Tribunal
11.Parliament may amend Constitution to secure
independence of judiciary
12.Pending new JPC recommendation, members of
judiciary to receive salaries as before
GOVT ACTION POST MASDAR
9 Financial Autonomy of SC Secured
9 Judicial Service Commission Established
9 5 Laws Drafted
z Bangladesh JSC Rules, 2004 (notified 2004)
z Draft Bangladesh Judicial Service (Pay Commission) Rules
z Draft Bangladesh Judicial Service (Service Constitution,
Composition, Recruitment and Suspension, Dismissal &
Removal) Rules
z Draft Bangladesh Judicial Service (Posting, Promotion,
Leave, Control, Discipline and other Service Conditions)
Rules
z Draft Code of Criminal Procedure (Amendment) Bill
 CONTINUING STEPS…
2000 Judgment
…GoB adjournments…

Sept 2001 Caretaker Government

Oct 2001 GoB establishes Cabinet

Committee on Separation
….GoB adjournments….

2002 GoB submits Draft Rules to AD

…GoB adjournments…
CONTINUING STEPS…
2003 AD directs modification of Rules
according to ‘wisdom’ of
President and Parliament
…..GoB adjournments…
2004 GoB notifies JSC Rules
Nov 2004 AD issues contempt notices on
Secretaries
Nov 2004 GoB dissolves Cabinet Cttee on
Separation
…..GoB adjournments…..
CONTINUING STEPS….

Oct 2005 AD refuses adjournment to GoB

Feb 2006 AD refuses adjournment
to GoB
Contempt Petitions await
consideration
1st March 06 ??? Next Date???
CONCERNS 2
3. DRAFT JS RULES
Ð Appropriate Authority = Ministry or
Division entrusted with admin of JS
by President ie = MoL???
Ð BCS (Admin) can be transferred to
act as Judicial Magistrate but
Judicial members cannot act as
Administrators
Ð Deputation of Judicial Officers
CONCERNS
1. JSC RULES
Ð 7 members only not 11
Ð Not majority from judiciary
Ð No process of appointments of judicial
magistrates
2. DRAFT JPC RULES
Ð Salary on basis of existing
salary/remuneration structure w/o ref to
other services
Ð Chairman decides frequency of meetings;
under control of MoF
CONCERNS 3

4. DRAFT POSTING RULES

Ð President’s consultation with Supreme Court re posting
etc now based on law not convention.
Ð SC’s opinion to prevail over Appropriate Authority in
any conflict over posting decision

BUT
¾ Appropriate Authority = MoL???
---‘Any Ministry or Division entrusted with
administration of JS by President’
¾ Deputation of judicial officials to non-judicial posts
PRACTICAL STEPS: LAW REFORM
{ Notification of the three sets of Draft Rules
z Review of the Draft Rules through public cosultation
and/or scrutiny by the Law Commission before
finalising?

{ Expeditious enactment of the Draft CrPC

(Amendment) Bill by Parliament:
z Consider review of the Draft Rules through public
cosultation and/or scrutiny by Law Commission
before finalising?

{ Reframing of the Rules of Business.

z Define Appropriate Authority to ensure
independence of the executive
PRACTICAL STEPS:
ADMINISTRATIVE CHANGES

{ Establishing the Appropriate

Authority
z Scope for locating it within Office of the
Registrar, Supreme Court
{ Resource allocation for the
Appropriate Authority
{ Establishing a Secretariat for the
Judicial Service Commission:
z possible establishment of secretariat
within the SC
{ Establishing a Secretariat for the
Judicial Pay Commission
PRACTICAL STEPS:
ADMINISTRATIVE CHANGES

{ Appointment of Judicial Officers

by the JSC
{ Appointment of Magistrates
{ Support Staff
LONGER-TERM MEASURES
NEEDED

{ Law Reform
z Amendment of the Constitution
{ Capacity Building
z Determination of the cadre strength of the Judicial
Service and the various grades thereof.
z Preparation of a realistic annual budget and placing
it before the Government on time
{ Infrastructural development
z Planning for phased selection of stations and
locations of civil/criminal courts and of tribunals to
facilitate access to inexpensive justice.
{ Monitoring and Evaluation
Longer Term Measures…
{ Systematic training and continuing
education.
{ Self-monitoring and supervision scheme of
District Courts to be re-introduced.
{ Regular and full inspection of the courts in
the Districts.
{ Setting up targets.
{ System of Annual Recognition and Reward
{ Greater commitment and more proactive
role of the High Court Division
{ Greater transparency re judicial
administration through Annual Conferences
and publication of Annual Reports