Judicial independence means the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private. In reference to the speech of Pandit Jawarharlal Nehru when on May 24, 1949, he stated in the Constituent Assembly that our judges should be "first-rate" men of "the highest integrity" who could "stand up against the executive government and whoever may come in their way." There is ambiguity in the meaning of the term judicial independence. Which compounded into controversies and confusions regarding it's proper definition. leading some scholars to question whether the concept serves any useful analytical purpose?
We need to remind ourselves that independence of judiciary is a basic feature of our constitution which indicate separation of powers, according to the article 22 of the Bangladesh constitution. The constitution required separation of the judiciary from the executive and the Appellate Division gave direction to Parliament and to the President to enact laws and promulgate rules in terms of article 115 and 133 of the constitution to give effect to the policy enunciated in article 22 of the constitution.
Formal guarantees of judicial independence from government control date to at least 1701, when England’s Act of Settlement granted judges explicit protection from unilateral removal by the crown in the context of a larger shift of power toward Parliament and the courts. Today the idea of judicial independence has such broad and powerful normative appeal that even states that do not honour it in practice are wont to profess a commitment to it. Most of the world’s current written constitutions contain some form of explicit protection for the independence of the judiciary, and the proportion of constitutional documents that contain such protections has been increasing over time. Judicial independence has been formally endorsed at the international level as well—for example, in the Basic Principles on the Independence of the Judiciary, adopted by the United Nations General Assembly in 1985.
Any comprehensive and coherent definition of judicial independence must address several questions. The first is, “Independence for whom?; The second is, “Independence from whom?
The third is, “Independence from what?”
To supply satisfying answers to those questions, it is necessary to consider why judicial independence is valuable and what it is supposed to accomplish. In other words, it is necessary to address the question, “Independence for what purpose?”.What we can do? We can educate the public and the politicians about what judicial independence means and why it is vital to our democracy and our social well-being. We can work to ensure that ordinary citizens can access the courts and that the courts give them prompt and efficacious results. We must encourage independence in court administration. We must insist on review of judicial conduct by other judges. We must have independence in judicial education. We should support an appointment process that appoints judges on merit, and not political affiliation. We must never allow ourselves to be co-opted by governments.
In a democracy, the Constitution reigns supreme, with the Judiciary serving as it's guardian. Democracy allows people to participate in decision-making through elected representatives or direct involvement. The separation of powers divides governance into three branches- The Legislature makes laws, representing public interests; The Executive enforces laws, led by a President or Prime Minister; and The Judiciary interprets and applies laws, ensuring constitutional compliance and safeguarding rights. This separation prevents the concentration of power.
In parliamentary systems like Bangladesh, the Executive and Legislature are interdependent. The Judiciary acts as a vital check, upholding the Rule of Law and protecting against power abuses, ensuring a balanced democratic system. As a safeguard against potential violations of the Rule of Law, an independent Judiciary provides the guarantee that justice is carried out impartially. As Dr. B.B. Chawdhry writes, "Justice which is the soul of the state must be administered without fear or favour."
The importance of an independent Judiciary is highlighted for various reasons. The Judiciary serves as the first line of defence against any excessive or unauthorised power of the Executive or the Legislative branch, providing a system of checks and balances. The Judiciary examines and if needed, invalidates any law that violates the Constitution of Bangladesh by declaring it null & void. This prevents any centralization of power. An impartial judicial system is essential for defending the rights of minorities & other group of peoples in a multicultural and diversified nation like our Bangladesh. A strong independent Judiciary is essential to maintaining the Rule of Law. It ensures that everyone is governed by the same set of laws, irrespective of their position or power. we have lived in the expectation that the rule of law is strengthening in Canada and throughout the world. As Beverly Mc Lachin p.c Chief justice of Canada said, “We believed that a strong, independent judiciary – the third branch of democratic government – was entrenched in Canada and increasingly accepted elsewhere”.
Why does the rule of law matter? The rule of law prevents the abuse of state power, requires the law to be followed by all, and ensures that legal rights are fulfilled in practice. It also provides the means for various other core aspects of democracy to be safeguarded – for example, making certain that the laws made by parliament are enforced, and that fair conduct of elections can be guaranteed. The Rule of Law requires judicial independence so that people can take their disputes to court and have them resolved according to law. Without judicial independence, other Rule of Law principles such as clear and public laws, applying equally to all without discrimination, would be undermined. on August 31, 2023, outgoing Chief Justice Hasan Foez Siddique (Supreme court of Bangladesh) spoke of his belief that a strong and independent judiciary is indispensable to a strong democratic system. He argued that the courts should be kept at a safe distance from political ideologies, and warned against outside influences over the judicial process, saying, "It can’t be said that the state and the judiciary are operating in the right way if the laws crush the poor and the rich crush the laws."
Article 22 of the constitution says that the state shall ensure the separation of the judiciary from the executive organs of the state. All citizens are equal in front of an independent judiciary, with the right to receive justice for wrongdoings committed against them, even and especially if they are committed by those in or connected to the state. Yet, more and more, we see our legal system being used to advance questionable agendas instead of the rule of law. The continuing denial of bail to harass journalists, rights defenders and even ordinary teenagers accused under the draconian Digital Security Act (DSA) is an example of this. Incredibly long delays at court, lack of protection for witnesses, outdated legal processes, massive case backlogs, the corruption that has infiltrated our institutions including the law enforcement agencies, and the oversized influence of rich and powerful actors – all of these and more continue to strike at the integrity of our legal system. The terrifying end result of this can only be a loss of faith in justice and the rule of law.
To reiterate the argument so far, democracies are under threat all over the world, and courts have a potential role to play in helping prevent backsliding. But they are not foolproof. Indeed, as courts have become more powerful and prominent, through the global trend of the judicialization of politics, they have themselves become targets for political actors' intent on capturing power. This has led to a rash of attacks on judicial independence.
How can one ensure that the courts remain capable of playing their role in protecting democratic channels? There is a large literature on the causes and consequences of judicial independence, but there is no foolproof mechanism. One trend has been to empower a special institution, called a judicial council, to manage and oversee the judiciary, sometimes being involved in the appointment process and other times working on appointments, promotions, removal, and budget. In many cases, judicial councils have themselves become targets for politicization.
RAIHATUL GIR KOSBA, Advocate, District & Session Judge Court, Cox’s Bazar. Lecturer, Department of Law, Cox’s Bazar International University. [email protected]
