Judiciary

Basic Principles on the Independence of the Judiciary: UN Congress Milan 1985

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INTERNATIONAL LAW

Basic Principles on the Independence of the Judiciary

General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to
6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,

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Judiciary cannot be immune from criticism

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In re : S.Mulgaokar 1978 (3) SCC 339, Court said that judiciary cannot be immune from criticism, but, when that criticism is based on obvious distortion or gross mis-statement and made in a manner which seems designed to lower respect for judiciary and destroy public confidence, it cannot be ignored. When there appears some scheme and a design to bring about results which may damage confidence in judicial system and demoralize Judges by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel perturbed.

In re: Vinay Chandra Mishra, AIR 1995 SC 2348, Court observed that normally, no Judge takes action for in facie curiae contempt against lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the Court and to threaten and obstruct the course of justice. It was also observed that making allegations or aspersions on the integrity of Judge is not to be misunderstood as an outspoken fearless attitude of an advocate. Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat, an argument. Humility is not servility and Courtesy and politeness are not lack of dignity. Rule of law is the foundation of democratic society. If judiciary is to perform its duties and its functions effectively, and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of Courts have to be respected and protected at all costs. The foundation of judiciary is trust and confidence of people in its ability to deliver fearless and impartial justice. When foundation itself is shaken by acts which tend to create disaffection and disrespect for authority of Court by creating distrust in its working, the edifice of judicial system gets eroded.

BANGLADESH JUDICIARY

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CONSTITUTION OF BANGLADESH

PART VI     THE JUDICIARY

CHAPTER I THE SUPREME COURT

Establishment of Supreme Court

94. (1) There shall be a Supreme Court for Bangladesh (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division.

(2) The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.

(3) The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.

(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.

Appointment of Judges

95. (1) The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.

(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and –

(a) has, for not less than ten years, been an advocate of the Supreme Court ; or

(b) has, for not less than ten years, held judicial office in the territory of Bangladesh ; or

(c) has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.

(3) In this article, “Supreme Court” includes a court which at any time before the commencement of this Constitution exercised jurisdiction as a High Court in the territory of Bangladesh.

Tenure of office of Judges

96. (1) Subject to the other provisions of this article, a Judge shall hold office until he attains the age of sixty-seven years.

(2) A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehaviour or incapacity.

(3) Parliament may by law regulate the procedure in relation to a resolution under clause (2) and for investigation and proof of the misbehaviour or incapacity of a Judge.

(4) A Judge may resign his office by writing under his hand addressed to the President.]
Temporary appointment of Chief Justice

97. If the office of the Chief Justice becomes vacant, or if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office, those functions shall, until some other person has entered upon that office, or until the Chief Justice has resumed his duties, as the case may be, be performed by the next most senior Judge of the Appellate Division.
Additional Supreme Court Judges

98. Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judges of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified persons to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period :

Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article.

Disabilities of Judges after retirement

99. (1) A person who has held office as a Judge (otherwise than as an Additional Judge pursuant to the provisions of article (98), shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any offece of profit in the service of the Republic not being a judicial or quasi-judicial office.

(2) Notwithstanding anything contained in clause (1), a person who has held office as a Jugde of the High Court Division may, after his retirement or rermoval therefrom, plead or act before the Appellate Division.

Seat of Supreme Court

100. The permanent seat of the Supreme Court shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint.

Jurisdiction of High Court Division

101. The High Court Division shall have such original, appellate and other jurisdictions and powers as are conferred on it by this Constitution or any other law.

Powers of High Court Division to issue certain orders and directions, etc

102. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law –

(a) on the application of any person aggrieved, make an order-
(i) directing a person performing any functions in connec-tion with the affairs of the Republic or of a local authority,
to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do ; or

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority, has been done or taken without lawful authority and is of no legal effect ; or

(b) on the application of any person, make an order-

(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or

(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

(3) Notwithstanding anything contained in the forgoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-

(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work ; or

(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has heen given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity of being heard, and the High Court Division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-caluse (b).

(5) In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.

Jurisdiction of Appellate Division

103. (1) The Appellate Division shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division.

(2) An appeal to the Appellate Division from a judgment, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division –

(a) certifies that the case involves a substantial question of law as to the interpretation of this Constitution ; or

(b) has confirmed a sentence of death or sentenced a person to death or to imprisonment for life ; or

(c) has imposed punishment on a person for contempt of that division ; and in such other cases as may be provided for by Act of Parliament.

(3) An appeal to the Appellate Division from a judgment, decree, order or sentence of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to appeal.

(4) Parliament may by law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the High Court Division.

Issue and execution of processes of Appellate Division

104. The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.

Review of judgments or orders by Appellate Division

105. The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.

Advisory jurisdiction of Supreme Court

106. If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

Rule-making power of the Supreme Court

107. (1) Subject to any law made by Parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it.

(2) The Supreme Court may delegate any of its functions under clause (1) and article 113 and 116 to a division of that Court or to one or more judges.

(3) Subject to any rules made under this article the Chief Justice shall determine which judges are to constitute any Bench of a division of the Supreme Court and which judges are to sit for any purpose.

(4) The Chief Justice may authorise the next most senior judge of either division of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.

Supreme Court as court of record

108. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.

Superintendence and control over courts

109. The High Court Division shall have superintendence and control over all courts and tribunals subordinate to it.

Transfer of cases from subordinate courts to High Court Division

110. If the High Court Division is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, or on a point of general public importance, the determination of which is necessary for the disposal of the case, it shall withdraw the case from that court and may –

(a) either dispose of the case itself ; or

(b) determine the question of law and return the case to the court from which it has been so withdrawn (or transfer it to another subordinate court) together with a copy of the judgment of the division on such question, and the court to which the case is so returned or transferred shall, on receipt thereof, proceed to dispose of the case in conformity with such judgment.

Binding effect of Supreme Court judgments

111. The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.

Action in aid of Supreme Court

112. All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.

Staff of Supreme Court

113. (1) Appointments of the staff of the Supreme Court shall be made by the Chief Justice or such other judge or officer of that court as he may direct, and shall be made in accordance with rules made with the previous approval of the President by the Supreme Court.

(2) Subject to the provisions of any Act of Parliament the conditions of service of members of the staff of the Supreme Court shall be such as may be prescribed by rules made by that court.]

CHAPTER II
SUBORDINATE COURTS

Establishment of subordinate courts

114. There shall be in addition to the Supreme Court such courts subordinate thereto as may be established by law.

Appointments to subordinate courts

115. Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.

Control and discipline of subordinate courts

116. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.

Judicial officers to be independent in the exercise of their functions

 116A. Subject to provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.

 READ THE FULL CONSTITUTION OF BANGLADESH BULLET 2

 

Constituent Assembly on Judiciary

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AmbedkarFriday, the 25th November, 1949

“The second point I wish to touch upon is the rule of law which I think is a peculiar part of the English legal system. If there is anything which I would like to cling to in the future of this country, it is this rule of law. Professor Dicey in his law of the Constitution has explained this position fully and I think we have provided in the Constitution, in the powers vested both in the Supreme Court and the High Courts of this country for any citizen to have his right established as against the government of the day, whether Central or Provincial, so that there is no question of encroachment of this, and the judiciary has been left independent enough to fulfil this task. My friend Mr. Alladi Krishnaswami Ayyar pointed out, and rightly so, that the judiciary should not place itself as an imperium in imperio, and I feel satisfied that the provisions that have been made in this Constitution will not make the judiciary an imperim in imperio. Of course, there is always that danger also. When people talk of separation of power, this separation of power may be made in such a way that the judiciary may be invested with immense power that it might eventually lead to the break-down of the government of the day, which I think, is not the case in our Constitution”.