Independence of the Judiciary.

 

Independence of the Judiciary

The Independence of the Judiciary is a cornerstone of the rule of law and a democratic society. It refers to the principle that the judicial branch of government should be able to exercise its functions free from improper influence, pressure, or control from other branches of government (the executive and legislature), political parties, private interests, the media, or even internal hierarchical pressures within the judiciary itself.

In simpler terms, it means that judges should be able to make decisions based solely on the law and the facts presented in a case, without fear of reprisal, favor, or external manipulation.

Key Aspects of Judicial Independence:

1. Substantive (Decisional) Independence: This is the most crucial aspect, meaning that judges must be free to arrive at their decisions without submitting to any outside pressure. Their judgments should reflect their honest interpretation and application of the law, regardless of the popularity or political implications of the decision.
2. Personal (Individual) Independence: This ensures that individual judges are not dependent on the government in ways that could influence their decisions. It includes:
• Security of Tenure: Judges should have guaranteed terms of office (e.g., until a fixed retirement age) and should only be removable for serious misconduct through a rigorous, independent process, not at the whim of the executive or legislature.
• Financial Security: Judges' salaries and benefits should be sufficient and guaranteed, not subject to arbitrary reduction or manipulation by other branches, to prevent them from being susceptible to bribery or financial pressure.
• Immunity from Suit: Judges are typically granted immunity from civil or criminal liability for actions taken in the performance of their judicial duties, allowing them to make decisions without fear of personal legal repercussions.
• Freedom from "Punishment Transfer": Judges should not be transferred or penalized for unpopular but legally sound decisions.
3. Collective (Institutional/Administrative) Independence: This refers to the independence of the judiciary as a whole institution. It involves:
• Administrative Autonomy: The judiciary should have control over its own administration, including budgeting, personnel management (e.g., hiring of court staff, assignment of cases), and court facilities, rather than being entirely dependent on the executive.
• Budgetary Independence: While parliament ultimately approves the budget, the judiciary should have a substantial degree of control over its own financial resources to ensure it can operate effectively without undue executive influence.

Why is Judicial Independence Crucial?

• Upholds the Rule of Law: It ensures that laws are applied consistently and fairly to everyone, including the government itself. Without it, the "rule of law" would quickly devolve into the "rule of man."
• Protects Fundamental Rights: An independent judiciary is the ultimate guardian of citizens' constitutional and human rights. It can act as a bulwark against government overreach and protect minorities from the tyranny of the majority.
• Ensures Checks and Balances: It is a vital component of the system of checks and balances, allowing the judiciary to scrutinize and invalidate unconstitutional or unlawful actions of the legislative and executive branches.
• Fosters Public Trust and Confidence: When people believe that judges are impartial and free from external pressures, they have greater faith in the justice system. This trust is essential for social stability, dispute resolution, and compliance with the law.
• Promotes Good Governance and Economic Stability: An independent judiciary attracts foreign investment and promotes economic growth by providing a reliable and predictable legal framework for contracts and disputes. It also discourages corruption.

Judicial Independence in Bangladesh:

In Bangladesh, the principle of judicial independence is enshrined in the Constitution. Article 22 of the Constitution of Bangladesh explicitly states: "The State shall ensure the separation of the judiciary from the executive organs of the State." This is a fundamental principle of state policy.

Historically, achieving full judicial independence in Bangladesh has been a protracted struggle. Before 2007, the lower judiciary was significantly controlled by the executive branch. However, a landmark Supreme Court judgment in the famous Masdar Hossain case (also known as the "Judicial Separation Case") in 1999 (with final directives issued in 2007) was instrumental in pushing for the actual separation of the lower judiciary from the executive. This judgment led to significant reforms aimed at making the judiciary more independent, including the creation of a separate judicial service commission and greater autonomy in appointments, promotions, and transfers of judicial officers in the subordinate courts.

Despite these constitutional provisions and landmark judgments, challenges to full judicial independence in Bangladesh sometimes arise, particularly concerning political appointments, accountability mechanisms, and the actual implementation of administrative and financial autonomy. Nevertheless, the ideal of an independent judiciary remains a critical aspiration and a continuous pursuit for a just and democratic Bangladesh.