Editorial Page
Separation of judiciary or judicial independence
By Gopal Sengupta
Sat, 11 Feb 2006, 09:53:00

The Supreme Court of Bangladesh has again turned down the government's plea for further extension of time to implement the Supreme Court's directives on separation of judiciary from the executive.

The Supreme Court directed the government in a land mark decision in 1999 to separate judiciary from the executive. Since then government sought time extension for 23 times to implement the decision. The Supreme Court seems to be annoyed with the officials for delay in implementing its directives and a contempt charge is likely to be framed against the officials who are responsible for carrying out the job. It is not clearly understood why the government has been asking for extension of time for so many times. The Law Minister said time and again that the whole process will take time. He said that the judicial officers are to be appointed at the lower level and they should be trained which is a lengthy process. If it is so why the government lawyers could not convince the highest court of the country?

The question may arise regarding the definitions of the Judicial Independence. Here are some excerpts:

"Judicial Independence - Freedom from direction, control, or interference in the operation or exercise of judicial powers by either the legislative or executive arms of government." (Excerpt from: Legal Words Dictionary, Reed International Books)

"A truly independent judiciary is one that issues decisions and makes judgments which are respected and enforced by the legislative and executive branches; that receive an adequate appropriation from Congress; and that is not compromised by politically inspired attempts to undermine its impartiality …… Judicial independence includes the independence of an individual judge as well as that of the judiciary as a branch of government. Individual independence (otherwise known as decisional independence) is authority but the law, and personal, in the sense that it guarantees judges job tenure, adequate compensation and security." (Excerpt from: An Independent Judiciary: Report of the Commission on Separation of Powers and Judicial Independence. Chicago: American Bar Association, 1997 (pp. ii - iii).

"Judicial Independence is the freedom is the freedom we give judges to act as principled decision makers.

The independence is intended to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment. When truly independent, judges are not influenced by personal interests or relationships, the identity or status of the parties to a case, or external economic or political pressures." (Excerpt from: Brennan Centre for Justice Resources: Questions and Answers about Judicial Independence).

"Judicial independence is the freedom that a judge should have to decide a case in front of her based on the facts and law, free from outside pressures or special interests." (Excerpt from: League of Women Voters: Creating A Just Society: Judicial Independence).

"Judicial independence is widely considered to be a foundation for the rule of law…. Most agree that a truly independent judiciary has three characteristics. First, it is impartial. Judicial decisions are not influenced by a judge's personal interest in the outcome of the case…. Second, judicial decisions, once rendered, are respected…. The third characteristic of judicial independence is that judiciary is free from interference. Parties to a case, or others with an interest in its outcome, cannot influence the judge's decision." (Excerpt from: The World Bank Group - Legal Institutions of the Market Economy. Judicial Independence: What It Is, How It Can be measured, Why It Occurs).

"Judicial Independence is a concept that expresses the ideal state of the judicial branch of government. The concept encompasses the idea that individual judges and the judicial branch as a whole should work free of ideological influence." (Excerpt from: American Judicature Society: Centre for Judicial Independence. What is Judicial Independence?)

"The Judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without and restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason." (Excerpt from: United Nations Office of the High Commissioner for Human Rights. Basic Principles on the Independence of the Judiciary. Endorsed by UN General Assembly, 1985).

"The Independence of all those who try causes between man and man, and between man and his government, can be maintained only by the tenure of their office. I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent Judiciary."

(Excerpt from: John Marshal, address to the Virginia State Convention of 1829 - 30. Proceedings and debates of the Virginia State Convention of 1829 -30 at 616).

"Chief Justice Rehnquist has stated that the independent judiciary is one of the 'crown jewels' of the nation's system of government. Certainly, judicial independence is an essential ingredient of the protection of individual liberty and equality in our constitutional system. Moreover, the independent judiciary checks the legislative and executive branches of the federal government, there helping to maintain our constitutional commitments both to separation of powers at the national level and to federalism in nation - state relations.

" (Excerpt from: "Report of the Task Force on Federal Judicial Selection," in Uncertain Justice: Politics and America's Courts. Reports of the Task Forces of Citizens for Independent Courts. New York: The Century Foundation Press, 2000, p.13).

In conclusion, we must keep in mind that judicial independence is a means toward a strong judicial institution. The strong judicial institution is a means toward securing the basic goals of people: human liberty and a reasonable level of prosperity.

The law makes a promise - neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant, or perhaps a mob.


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