An independent judiciary free from influence of legislative and executive organs of the state is the prime requirement of a democratic state. article 22 of Bangladesh constitution states:
The State shall ensure the separation of the judiciary from the executive organs of the State.
However this was not made possible since the independence of Bangladesh in absence of no specific vesting of judicial power to the judiciary. Moreover as per the constitution (article 115 and 116) the appointment and control of judges in the judicial service or as magistrates exercising judicial duties be made by the president. He controls (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates.
Using the above articles, the executive branch had been able to gradually make ground and influence the judiciary in Bangladesh. The judiciary had to rely on magistracy power of the executive branch especially in the lower courts. Executive magistrates control the mobile courts although it is the work of judiciary. According to the Criminal Procedure clause-190 magistrate can not direct the mobile court. This had induced the political governments to use judiciary for their own directive and people were deprived of justice because of political influence and corruption. Quality and independence of the Judiciary has become widely questioned in the process.
BNP and Awami League first included separation of the judiciary in their agenda during anti-Ershad movement. Both the AL and the BNP lingered the process during their tenures and thanks to the current caretaker government finally rolling from November 1, 2007 we will see the separation of judiciary taking effect. But is it for real?
Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. — Source.
As per the 12-point directive of the Supreme Court (SC) given in 1999 the current caretaker government initiated the issuance of the four necessary rulings in January to implement the constitutional imperative. — Source.
But some problem will remain as necessary constitutional amendments are essential to make the separation complete. In the proposed process, the judges are supposed to be indirectly controlled by the president. But in the Article 48 of the constitution president — by all means, titular head of the state — is bound to take suggestion for appointing chief justice and prime minister. Moreover in Article 55, it is clearly mentioned that the executive power of the republic will be vested upon the prime minister. So the article 48, and 55 must be amended as appropriate. To make these amendments this needs to be placed in the parliament for giving it a legal status — that is under the circumstances a distant possibility.
And the separation is facing last moment obstacles from the civil administration cadre.
During a seminar Sunday in BIAM auditorium, which initially was thought to discuss the inequality of the two cadres (judiciary and administration), skewed to an interesting turn as administrative officials from across the country urged the government to return some judicial power to them. This protest went out of control as:
Rokonuddowla, a civil service magistrate, who is much discussed for his courageous effort against adulteration, said that he is ready to go to jail or be hanged. He urged his colleagues to go to strike from 1st November 2007 if judiciary is separated from the Admin and to