Judiciary is not only confined to be an organ like executive and legislature but also something more. It is the last hope and aspiration to restore the rights of citizen in a country. But this judiciary cannot act to restore these rights unless and until it is free from any undue influence and interference of any other organ. Therefore, it is an obvious need that the judiciary should be separated in the true sense to perform its functions independently which is the main object of the judiciary. And where there is no effective separation of judiciary, there is no independent judiciary and where there is no independent judiciary, there is no rule of law. But mere separation is not enough to perform its function effectively. This paper will analyze the terms separation of judiciary and judicial independence and evaluate their proper implementation in Bangladesh and also some other factors which are essential with the separation of the judiciary to ensure independence. In Bangladesh, Judiciary has been separated from the executive in 2007. But due to some theoretical problems in justice system, the practice of executive interferences over judiciary is still continuing in Bangladesh in some context. “Judicial independence” is the concept that the judiciary needs to be kept away from the other branches of government. And the “separation of judiciary” is the pre-condition to judicial independence. To make concept of the research clear at first some terms should be made clear. Judicial independence refers to the separation of judiciary and independence of judiciary. Separation of the judiciary from the executive is established by the constitution of Bangladesh from its origin. But it was limited to mere documentary recognition before the decision of Masdar Hossain case in 2007 through which the separation of judiciary as well judicial independence was established in true sense. But it is not clear whether the judicial independence is actually implicated in proper way. To establish the proper judicial system, the separation of judiciary is a vital issue.
Cite this paper
Hannan, M. A. and Arifuzzaman, M. (2021). Separation of Judiciary and Judicial Independence in Bangladesh: An Appraisal. Open Access Library Journal, 8, e7002. doi: http://dx.doi.org/10.4236/oalib.1107002.
Art 22, the Constitution of the People’s Republic of Bangladesh, Done at Dhaka, 4 November 1972, in Force 16 December 1972.
http://bdlaws.minlaw.gov.bd/act-details-367.html
Judgment (1999) Secretary, Ministry of Finance vs. Masdar Hossain, 52 Dhaka Law Report (AD), p. 82.
https://shamimsufi.files.wordpress.com/2013/05/secretary-ministry-of-finance-vs-md-masdar-hossain-and-others-52-dlr-ad-82.pdf
Hossain, M.M. (2020) Separation of Judiciary in Bangladesh-Constitutional Mandates and Masdar Hossain Case’s Directions: A Post Separation Evaluation. International Journal for Court Administration, 11, 4. https://doi.org/10.36745/ijca.310
Ershadul Bari, M. (1993) Importance of an Independent Judiciary in a Democratic State. The Dhaka University Studies, Part F, 4, 1-11.
https://law.du.ac.bd/en/wp-content/uploads/2017/09/Volume.-IV-No.1-June-1993.pdf
Russell, P.M. (2001) Towards a General Theory of Judicial Independence. In: Russell, P. and O’Brien, D.M., Eds., Juridical Independence in the Age of Democracy: Critical Perspectives from Around the World, University Press of Virginia, London, 6.
Sarrower, E.R. (2008) On Judicial Misconduct and Discipline—Without Merit: The Empty Promise of Judicial Discipline. Massachusetts School of Law, 4, 90.
http://www.tulanelink.com/tulanelink/sassower_01a.htm
Karim, M.A. (2014) Separation of Judiciary in Bangladesh. International Journal of Human Rights and Constitutional Studies, 2.
https://www.inderscienceonline.com/doi/pdf/10.1504/IJHRCS.2014.067882
Article 109, the Constitution of the People’s Republic of Bangladesh, Done at Dhaka, 4 November 1972, in Force 16 December 1972.
http://bdlaws.minlaw.gov.bd/act-details-367.html
Article 96(2) of the Constitution of the People’s Republic of Bangladesh Substituted by the Constitution (Sixteen Amendment) Act, 2014 (Act. No xiii of 2014).
Article 96(3) of the Constitution of the People’s Republic of Bangladesh Substituted by the Constitution (Sixteen Amendment) Act. 2014 (Act. No xiii of 2014).
The Daily Star (2014) 16th Amendment to the Constitution: Will It Be the Last Nail in the Independent Judiciary’s Coffin? 19 September.
https://www.thedailystar.net/16th-amendment-to-the-constitution-42292
Hossain Mollah, A. (2012) Independence of Judiciary in Bangladesh: An Overview. International Journal of Law and Management, 54, 61-77.
https://doi.org/10.1108/17542431211189605
Sushma Suri vs. Govt. of National Capital Territory of Delhi (1999) 1 SCC 330; High Court of Rajasthan vs. Ramesh Chand Paliwal, AIR 1998 SC 1079.
https://completejusticepodcast.s3.ap-south-1.amazonaws.com/Mahendra Singh - The Independence of the Judiciary - Separation from the Executive.pdf
