GROUP NO--2 Topics Role of judiciary to implement good governance.

List of group members Name 1.Bilkis Akter 2. Md.Asadus Zzaman Sarkar 3.Hossen Ali 4.Hanufa Akter 5.Jannatul Mawa 6.Murad Miah 7.Baha Uddin 8.Arif Rabbane 9.Nishat 10. Fatimatun Nijhum 11.MASUM. 12. Bethei 13. Badhan YEAR:2ND (2013) SEMESTER:4TH SESSION:2011-12 Department of Political Science University of Dhaka.

Role of Judiciary to implement

“Good Governance”

Introduction:

According to Lord Bryce,

“There is no better test of the excellence of a government than the efficiency

and independence of its judicial system” (1)

Judiciary is one of the 3rd Organs of the government. It Judiciary all courts, big or small of all the

countries are included. It is the interpreter of the constitution and laws. The Judiciary is essential

for maintaining peace and imparting justice and also for the enjoyment of fundamental rights. It

is one of inescapable pillars for the smooth functioning of democracy and thereby to establish

good governance in a country. In the absence of judiciary the thieves, deceits and others tough

people will usurp the property of the gentry and of the weak persons through farce and violence.

There will widespread injustice in the society.

For this Professor James Wilford Garner said,

“A society without Legislative organs is conceivable but a civilized

. State without judicial organ is hardly conceivable” (2)

Thus the Judiciary is essential.

Conception of Judiciary:

Generally the Judiciary is the system of courts that interprets and applies the law in the name

of the state and also provides a mechanism for the resolution of the disputes.

The Judiciary of a country comprises all courts and tribunals which interpret law, settle legal

disputes, enforce rights of the citizens and impose penalty to the offenders.(3)

The Judicial system as a whole, considered as a subdivision of administration, includes a

numerous body of officials who aid in bringing cases before the courts, in administering Judicial

procedure, and in carrying out judicial decisions. Such official include constable and sheriffs,

clerks and bailiffs, public prosecutors grand juries and the like. (4)

Own opinion:

Finally it can be said that the judicial department consists of a series of magistrates or judge.

One above the other, with the Supreme Court at the head.

Concept of Independence of Judiciary: We can define the independence of judiciary basically in two perspectives - Traditional approach Modern approach

According to traditional approach, the independence of judiciary means a fair and neutral

judicial system and practice which can afford to take its decision on its own being freed from the

external influence and intervention of others organs especially executive branch of the

government.

In modern sense, independence of judiciary means that judges are in a position that they

afford to render justice in accordance with their oath of office and only in line with their own

sense of justice without submitting to any kind of pressure or influence be it from executive or

legislative or from the parties themselves.(5)

In another senses, Independence of Judiciary comprise four meanings.

Substantive independence of the judges.

Personal independence of the judges

Collective independence of the judges and

Internal independence of the judges. (6)

Own Opinion: Finally it can be said that Independence of judiciary means no one like the ministers or any other government body can interfere in the work of judiciary.

Functions of Judiciary: The following are the functions of the judiciary:

(i) It interprets the laws: A number of cases are brought before the judges in which the

question of the interpretation of the laws arises, because in such cases the law is not clear.

Judiciary plays a great role in this matter.

(ii) Protector of civil rights: people are given many rights by the state through the laws of the

parliament. The courts protect these rights.

(iii)Decides the cases: Many cases relating to the disputes between the citizens, or between the

government and the citizens, are brought before the courts. The citizens are brought before

the courts. The courts given their decision on such disputes.

(iv) Custodian of fundamental rights: In modern times many countries grant fundamental

rights to the people in the constitution. The supreme courts act as the custodian of these

rights.

(v) Guardian of the constitution: Of a law passed by the congress or parliament violates the

constitution, that law shall be declared as void because the constitution is the highest law of

the loan and it is the duty of the courts to protect it. For the protection of constitution many

laws have been declared illegal which violated any law or any clause of the constitution.

(vi) Advisory: The judiciary works as the advisory organ of the state. In many countries of the

world the Supreme Court has given the right in the constitution to render advice on the Legal

Mattes when asked for by the president.

(vii) Miscellaneous functions: The courts appoint trustees or guardians for the property of

minors. It gives approval of civil marriages. In appoints receivers for the companies which

are unable to meet their financial obligations. It also performs the act of the registration of

wills; it issues certificates, for the grant of naturalized citizenship. In some countries it issues

licenses. In our country appeals relating the elections are also sent to High Courts. (7)

Pre-conditions for independence of Judiciary: Keeping in view the functions of the judiciary, it is essential that the judiciary should be

made independent. It the judiciary is not free, it will not be able to give decisions against the

government and protect the fundamental rights and the constitution. The preconditions for the

independence of judiciary are given below.

(i) Mode of appointment of judges: As mentioned earlier the conditions for appointment of

judges should be a healthy one so that men of keen intellect, high legal acumen, integrity and

independence of judgment from among the lawyers get opportunity to act as judges.

Professor Garner Says,

“If the judges lack wisdom, probity and freedom of decision, the high purpose for which the

judiciary is established cannot be realized. The existence of theses necessary qualities depend

in large measure upon the method by which the judges are selected”. (8)

The existing methods by which judges are chosen in different countries of the world are of

following there:

Election by the people.

Election by the legislature.

Appointment by the executive.

(ii) Long Tenure: For the independence of judiciary a long tenure of the judges is an essential as

a good made of their appointment is. It the tenure of the judges is short, its consequences will

be bad. In case of a short tenure, the judge will remain busy in planning for his re-election.

Sometimes the judges in order to win the election, becomes partial while giving decisions.

Sometimes, he indulges in corrupt practice when he loses the hope to win the election. If the

tenure is short the judge is unable to comprehend fully the various complications of the law.

(iii)Security of service: For the independence of judiciary it is essential that there should be

security of service for the judges and the executive should not remove them at will. It the

judges are under constant fear of being removed from office, it they give decisions against

the executive (government) they will not give decisions against the govt. Thus there will be

no protection of the constitution and fundamental rights of the people. Therefore, in most of

the advanced countries of the world the parliament removes corrupt and incapable judges by

a majority vote, but the honest and able judges granted the security of service, even if they

given decision against the executive.

(iv) Adequate salary to the judges: In order to make the judges independent, it is necessary that

they should be paid adequately so that they are able to maintain a good standard of living and

they do not amass wealth by adopting corrupt practices. It the judges are adequately paid,

able persons will be attracted towards this profession and they will enjoy and honorable place

in the society.

According to Bryce, “The honesty and independence of a judge also depends upon the

inducements or prospects that his office carries. A low-paid judge may be attracted by

opportunities for accepting illegal gratification.” (9)

Where as it is necessary that a judge should be paid adequately.

(v) High qualification: For the independence of judiciary it is also important that the judges

should be able persons since only an able judge can give correct decision and express his

views freely, incapable judges are swayed by the arguments of the pleaders and they give

wrong decisions.

(vi) Separation of judiciary from the control of executive: For the independence of judiciary

Montesquieu emphasized that it should be free of the control of the executive. In ancient of

Middle Ages the judiciary was under the control of the executive. Hence, there was violation

of justice and the kings decided judges may give decisions freely.

(vii) No practice after retirement: The judges should not allow doing legal practice after

retirement, because his previous colleagues would favor him in the cases in which he appears

as a lawyer.

Judicial system in Bangladesh:

The judicial system in Bangladesh inherited from the British evolved during the British

period through various reform started from the days of lord Cornwallis since 1787 followed by

the judicial plan known as Cornwallis code.

The Judiciary of Bangladesh consists of basically two parts such as

Higher Judiciary- Supreme Court

Lower Judiciary -Subordinate Courts.

The Supreme Court is comprised of two divisions--

The Appellate Divisions

The High Court Divisions.

In accordance with Article 94(2) “The Supreme Court shall consists of the chief Justice

and such number of other judges as the president may deem it necessary to appoint to each

division”

And Article 94(3) provides that the chief justice and the judges appointed to the Appellate

Division shall sit in only in that division and the other judges shall sit only in the High court

division. The president appoints the chief justice and other judges of the Supreme Court.

The lower Judiciary in Bangladesh also consists of two parts such as district courts and

session courts, with 10-30 judges sitting in each of the country’s sixty one administrative

districts. As per the Article 115 of the constitution, the president appoints the persons to offices

in the judicial service or as magistrates exercising judicial functions in accordance with rules

made by him in that behalf.

Article 116 states that the control including the power of posting, promotion and grant of

leaned 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.

Then there are also the courts of magistrates, the Judges of the district courts are under the

Jurisdiction of the courts are under the Jurisdiction of the Supreme Court while judges in the

courts of Magistrates are member of the country’s

Administrative cadre which is responsible for general administration of its territories.

The Judicial System in Bangladesh at a glance is depicted in the following chart:

Appellate Division

District Judge Sessions Judge

High court Division

Additional Session Judge

Joint session Judge

CMM court Chief Judicial Magistrates

Additional chief Metropolitan

courts

Additional chief judicial Magistrates

Class one Magistrates Class two Magistrates Class third Magistrates

Additional District Judge

Joint District Judge

Senior Assistant Judge

Assistant Judge

. There are some other special laws providing for the basis of same special courts like.

(i) Juvenile court

(ii) Labor court

(iii) Family courts

(iv) Special courts

(v) Vat Appeal Tribunal

(vi) Administrative Tribunal etc. (10)

Judicial System in Other Countries:

The Judicial System of the whole world is not same, it vary state to state. Some of these are

given below--

(i) Mode of appointment of judges: In advanced countries of the world, generally three modes

are adopted for the appointment of the judges. These are--

(a) Election by the people;

(b) Election by the legislature.

(c) Appointment by the Executive.

(ii) Soviet Union: The Judges of the people’s courts are elected by the people.

(iii) Switzerland: In Switzerland, the lowest court is called the court of first instance and the

judges at this court are elected by the people.

(iv) Assam, Bihar and Maharashtra: In Assam. Bihar and Maharashtra, The presidents of the

judicial panchayat and also elected by the people.

(v) France: In France the judiciary is appointed by the president.

“The section with jurisdiction over judges is president by the chief president of the court de

cassation. It comprises, in addition, five judges and one public prosecutor, one councilor

d’état appointed by the councilor d’état, and appointed by the council d’état, and one

barrister as well as six qualified prominent citizens who are not members of parliament of the

judiciary, or of administration.

The president of the Republic the president of the National Assembly and the president of the

setae each appoint two qualified. Prominent citizens. The appointments made by the

president at each house of parliament are submitted for consultation only to the relevant

standing committee in that house.” (11)

(vi) Germany: In Germany the judges are appointed by the competent Minister and a committee.

“The judges of each of these court (Federal constitutional court and Highest courts) are

selected jointly by the competent Minister and a committee for the selection of judges

consisting of the competent state land ministers and an equal number of members elected by

the house of representatives [ Bundestag]” (12)

Therefore, Laski has said. “Of all the methods of appointment, that of election by the people

at large without exception the worst.” (13)

Garner also says, “Election of the judges lowers the character of the judiciary, tends to make

a politician of the judge and subjects the judicial mind to a strain which it is not always able

to resist” (14)

The election of the judges by the parliament or the legislature is seen in Switzerland. The

judges of the Federal Tribunal are elected there by the National Assembly for six years. In the

past, in certain states of America, this system was adopted, but later only four states Rhode

Island, Vermont, South Carolina and virginal retained it. In farmer Soviet Union to the judges of

the Supreme Court were elected by the Supreme Soviet.

The third made of appointment of the judges is appointment by the Head of the state (The

king or the president). This system of appointment of the Judges is adopted in India, England, the

United States, Canada, Australia, Japan and South Africa.

However the judges are free from all influence after their appointment this system is also not

free from defects because, in practice. The president or the monarch appoints the judges on the

recommendations of the prime Minister and the Lord Chancellor and both these persons are

related to majority party.

In England and other commonwealth countries, the judges are selected from among the

advocates and pleaders working in the courts. In certain countries of Europe, the judges are

selected by the ministry of justice through competitive examinations. Thus this is the best system

of the appointment of the judges and it is prevalent in many countries of the world.

Long Tenure:

For the independence of judiciary, a long tenure of the judges is as a good mode of their

appointment is. It the tenure of the judges is short its consequences will be bad. In case of a short

tenure, the judge will remain busy in planning for him re-election. Sometimes the judges, in

order to win the election, becomes partial while giving decision, sometimes, he indulges in

corrupt practice when he loses the hope to win the election. It he tenure is short the judge in

unable to comprehend fully the various completions of the law.

Today in many countries of the world the judges remain in office till they attain the age of

65, or 70, provided their conduct is above board. But in some states of America and Switzerland,

the tenure of the judges is very short.

In Switzerland, the tenure of the judges of the Federal Tribunal is 6 years. In the American state

of Vermont, the tenure of the judges is 2 years in Pennsylvania it is 21 years, in New Jersey it is

7 years, in Delaware 12 years and in some others states it is 6 years. In Mexico, the tenure of the

judges is 6 years.

In Great Britain, the Judges also remain in office during good behavior. In India, the Judges of

the Supreme Court remain in office till the age of 65 and the Judges of a high court remain in

office till the age of 62.

Security of Service:

For the independence of judiciary it is essential that there should be security of service for the

judges and the executive should not remove them at will. It the judges are under constant fear of

being removed from office, if they give decision against the executive (government), they will

not give decision against the government. Thus then will be no protection of the constitution and

fundamental right of the people.

In Great Britain the judges have been guaranteed the security of service and the can be

removed only when both the House pass a resolution jointly leveling allegations against the

judges and send it to the monarch for his/her assets.

In the United States, the judges of the Supreme Court are removed by a process of

impeachment, for this purpose, the lower house (House of Representatives) levels allegations and

the senate investigates these allegations. In some states of USA. There is a provision for the

recall of the judges by popular election. It hinders the freedom of judiciary. Therefore, certain

learned jurists have criticized this practice.

In France the guaranty of the independence of the judiciary and the hand of the president.

According to the constitution of France:

The president of the Republic is the guarantor of the independence of the judiciary.

Judges may not be removing from the office. (15)

In Germany the judges are independent and subject only to the law. Judges

appointed permanently on a fulltime there will be dismissed or permanently or

temporarily suspended from office or given a different posting or retired before the

expiration of their term of office except by virtue of a judicial decision and only on

the grounds and in the form provided for by status. Legislation may set age limits

for the retirement of judges appointed for life. In the event of changes in the

structure of courts or in their districts judges may be transferred to and their court

removed from office, provided they retain their full salary. (16)

In India, the procedure adopted for the removal of the judges of the High court and the

Supreme Court is quite comber some. It provides security of service to the judges and they are

free from the control of the executive. “A judge of the supreme court shall not be removed from

his office except by an order of the president passed after an address by each house of parliament

supported by a majority of the total membership of that House and by a majority of not less two

thirds of the members present and voting.” (17)

Adequate salary to the judges:

In order to make the judges independent, it is necessary that they should be paid adequately

so that they are able to maintain practices. It the judges are adequately paid, able persons will be

attracted towards this professions and they will enjoy and honorable place in the society.

According to Bryce- “the honest and independence of a judge also depends upon the

inducements or prospect that his office carries. A low paid judge may be attracted by

opportunities for accepting illegal gratification”. (18)

Where it is necessary that a judge should be paid adequately, it is also necessary that during

his tenure of office, his allowances and endowments are not reduced by the executive.

In India under the amendment a high court judge draws a monthly salary of Rs. 8000 and a

judge of Supreme Court draws Rs 9000 and the parliament cannot reduce this amount.

High Qualification:

For the independence of judiciary it is also important that the judges should be able persons

since only and able judge can give correct decisions and express his views freely. Incapable

judges are swayed by the arguments of the pleaders and they give wrong decisions.

Separation f Judiciary from the control of executive:

For the independence of judiciary Montesquieu emphasized that it should be free of the

control of the executive. In ancient and middle ages the judiciary was under the control of the

executive. Hence there was violation of justice and the kings decided judges may give decisions

fadelessly.

In India, the judiciary has been made free from the control of the executive at the district

level. and judicial powers have been taken away from the hands of the deputy commissioner.

These judicial powers have been given to the Additional District Magistrate. There is no control

of executive over the high court and the Supreme Court therefore; the judiciary enjoys complete

independence in India. (19)

In France, the Judiciary System is independence also. According to the constitution the

president of the Republic is the guarantor of the independence of the judiciary.” (20)

In Germany, the Judges enjoy independence in their Judgment. According to the constitution

“The Judges are Independent and Subject only to the law.”(21)

No Practice after retirement:

The judge should not be allowed to do legal practice after retirement, because his previous

colleagues would favor him in the cases in which he appears as a lawyer.

In Article 220 of the Indian constitution it is mentioned that no person who after the

commencement of this constitution has hold office as a permanent judge of high court shall plead

or act in any court or before any authority in India except the Supreme Court and the High

Courts. (22)

Steps taken for the independence of judiciary in Bangladesh:

Our Judiciary system in not independent at all because the appointment method of judges,

their security of tenure, privileges system etc not free and fare. Fore, For the development of the

judiciary system, we should take some important steps which makes the judiciary independence.

The steps which are needed for the independence of judiciary in Bangladesh are given below.

(i) Amendment of the constitution: According to the Article 95(1) of the constitution of the

People’s Republic of Bangladesh, “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.”

For this, the judges can be given any verdict for the favor of his political party. So for the

independence the appointment of the chief justice should be according to a constitutional

organization. The members of the organization will be take from both the government party

and from the opposition party and the last judge will be present. The constitutional body/

organization will be listed the name of judges according to their intelligence and then the

president appointed them. And for this the present constitution should be amended.

(ii) Post Creation: How many justice is needed, what is their work etc are determined by

president in Bangladesh. But like other countries (India and Pakistan), before this work in

done, it is should discussed in the parliament. Then, the judiciary of our country becomes

independent.

(iii)Ensure security of service: The judges of our country are suffered from insecurity. Political

parties give pressure; threaten them to give verdict in favor of them. For the independence of

judiciary, the total security of judges should be ensured. Beside this, the judges cannot be

retired before they have reached at the age 67 through pressures.

(iv) Giving enough privileges: In Bangladesh, the judges are not paid enough salary. For this

they are involved in corruption to earn more money. So, the people do not believe them.

For the independence of judiciary the judges should be paid enough salary so that they can

live in the society with high social status. As a result, they will not earn money in a corrupt

way. (23)

(v) To create consciousness among the political parties: For the independence of judiciary of

Bangladesh, the political parties should conscious and they should have feeling that the

judiciary should be kept independent. The judges cannot be influenced by any political

leaders.

Kent, a famous jurist, has said, “It presents too many occasions and too many temptations

for intrigue, party prejudice and local interest to secure a judiciary best calculated to promote

the ends of justice.” (24)

(vi) To ensure no practice after retirement: In Bangladesh, the judges are interfered in judicial

system after retirement. But for the independence of judiciary, it is to be ensured that the

judges should not be allowed to do legal practice after retirement. Because, his previous

colleagues would favor of him.

If we can be ensured the above conditions for judicial system, then our judiciary organ must

be independent.

Good Governance The concept of good governance often emerges as a model to compare infective economics or

political bodies with able economic and political bodies. The concept centers around the

responsibility of governments and governing bodies to meet to meet the needs of the masses as

opposed to select groups in society. Because governments treated as most successful the team

good governance can be focused on any one form of governance, aid organizations and the

authorities of the developed countries often will focus the meaning of good governance to a set

of requirement that conform to the organization’s agenda, making “good governance” imply

many different things in many different content. In other word good governance is an umbrella

concept that covers a set of issues of human life depending on the person’s concern and

understanding of reality. Good governance is means the manner is which power is exercised. In

the management of countries economic and social resource for the development in an efficient

and transparent ways.

Definition: Good Governance is epitomized by predictable, open and enlightened policy making is a

bureaucracy imbued with professional ethos on executive arm of the government accountable for

its action; and a strong civil society participating in the public of fairs and all behaving under the

rules law. (25)

Good governance involves the self organizing and inters organizational networks characterized

by interdependence resource exchange rules of the game and significant autonomy from the state.

(26).

D.K. Nath has identified eight major parameters of good governance while has been depicted in

the following diagram (27).

Good Governance

Follows two rule of law Accountability

Consensus oriented Transparent

Responsive

Equitable and Inclusive

Efficient and effectiveness

Participatory

Role of Judiciary to establish good governance in

Bangladesh: The term governance and good governance an increasingly being used in development

literature. Intellectuals, bureaucrats and civil society members alike are accepting the spirit of the

concept and are conceiving in it the content of their own experience and environment. The

Bangladesh government has recently been under construct pressure from various donor agencies

for ensuring good governance. The implementation and achievement of good governance

depends upon the transparency, honesty and efficiency of the legislature executive and judiciary.

The main concern is the judiciary. The main concern is the Judiciary and to analyze the role of in

the role of in the establishment of good governance in Bangladesh. The study will focus on the

Bangladesh Supreme Court in order to evaluate its role in ensuring good governance- (28)

(i) By protecting rule of law, fundamental rights and equal justice for all:

“An enlightened, independent and courageous judiciary fundamental requisite the very

existence of any society that respects for the rule of law and basic human rights”

The preamble of the constitution of Bangladesh (2004)states that “it should be a

fundamental aim of the state to realize through the democratic process a socialist society in

which the rule of law ,fundamentals human rights and freedom ,and political, economic and

social equality and justice for all citizens will be with a view to realizing this aim of the

state, the constitution in corporate a long list of fundamental rights in part –iii,Article 26-

44,for the protection of these fundamental rights of the citizen, Article 44 (1)of the

constitution guarantees the rights to move the high court division of the supreme court. By

protecting the fundamental rights of the citizen, the judiciary ensures the administration’s

accountability, human rights and the rule of law, which ultimately contribute to good

governance.

(ii) Through judicial review and security of laws: judicial review is the power of the course

to examine the legality of the official’s act and thereby to safe guard the fundamental and other

essential rights of citizen. It is touchstone and essence of the rule of law. It’s main objective is

to ensure the citizens of the country receive protection of law and that the administrative action

comply with the norms of the procedure set for it by the laws of land .under the rule of law ,

action or activities of persons or bodies performing public functions are subject to judicial review

that empowers judges to declare unconstitutional and unenforceable any law or order that is in

consistent or conflicting with the supreme law of the country Article 7 – provides it .

Article 7states –“This constitution is as then solemn expression of the will of people, the

supreme law of the republic and, any other law is inconsistent with this constitution that other

laws shall to the extent of the inconsistency, be void”

(iii) Judicial activism and the protection of public interest:

Judicial activism is another way in which the judiciary plays a vital role in good governance in

Bangladesh. By exercising judicial activism, the Supreme Court is in a position to make

government official more responsible, accountable transparent and efficient. Judicial activism

signifies that judiciary being aware of existing socio economic realities, voluntarily implements

social goal. Now- a- days the pronouncements made by judge from around the world reveal that

there is growing enthusiasm to perform judicial function in a proactive manner within the

constitutional limitation of the separation of power. In the words of lords chief justice of England

and Wales, lord Woolf (2003):-ii. Just as the common law has been evolving with increasing

rapidly sop as the role of common law judge. The role of the judiciary individually and

collectively, is to be proactive in the delivery of justice.

Jurist and commentators described this proactivism in the delivery of justice as “judicial

activisms” which is indispensible for ensuring good governance in any country.

(iv) By protecting the principles of natural justice and citizen rights: principles of natural

justice are often considered a proper measure of level of civilization and the level at this the role

of law prevails in a particular community. Natural justice implies fairness irresponsibleness,

equity and equality. Natural justice is the concept of common law and it is the counterpart of the

American principles of procedural due process .natural justice represents higher procedural

principles

Developed by judge which every administrative agency must follow while taking any decisions

which adversely affect the right of an individual. The basis of the principles of natural justice is

the role of law. The observance of these principles is demanded by essence of justice, to which

the system of governance must confirm.

Principles of natural justice are a great weapon in upholding citizens rights, while is ensured by

the supreme court of a country. The supreme court of Bangladesh also practices and has ensured

fairness justice to all. Thus the judiciary plays a significant role in establishing a society based on

the rule of law.

(v)Through judicial remedies: There is no denying the facts that today there is a tremendous

increase in the functions of the administration. in the word of Lord denying (1949:126)”properly

exercised the new powers of the executive laud to the welfare state ;but abused they lead to the

totalitarians state without proper and effective control, an individual would be without

redresser mechanism to undo the justice done.

The judicial remedies available to an aggrieved individual by any action of an administrative,

authority may be classified as prerogative remedies, statutory remedies, equitable remedies and

common law remedies.

Prerogative remedies

Statutory remedies.

Every government in Bangladesh has resorted thousands of illegal detention under the special

power sect, violating the constitutional mandates as enshrined in Article 82- of the

constitutions. The bulk of judiciary is work is against illegal detention. Therefore it is judiciary

that is making the government administration accountable by exercising wrote jurisdiction and

ultimately contributing to good governance.

(vi) Through the supervisory power of the judiciary: Article 109 of the constitution states

that the High Court Division (HCD) shall have supervision and control overall courts and

tribunals subordinate to it. The power is also called the supervisory power of the HCD .However

the question that necessarily arises each when is a court or tribunal subordinate to the HCD? In

order to subordinate the HCD. The court on tribunal must be subject to either its appellate on

revisionism jurisdiction .the supervisory power of the HCD as conferred by Article 109 is a

constitutional power .this power of supervision is in addition to the power conferred upon the

HCD to control inferior court or tribunal through writs under Article 102.this supervisory

power and the divisional power of the HCD under section 115 of the CPC and section 439 of the

criminal procedure code are same nature. Under the supervisory power the HCD can intervene in

the functioning of the subordinates courts or tribunals in the following circumstance: want on

access of jurisdiction; failure to exercise jurisdiction; violation of the procedure of disregard of

principals of natural justice; finding based on lack materials or under resulting in manifest justice

(vii)Exercising of advisory jurisdiction: Advisory jurisdiction is another important aspect of

the judiciary’s role in good governance. In Bangladesh article 106 of the constitution that the

president may seek the opinion of appellate. Division of the supreme court on a question of law

of great public importance. The Appellate division may be if it thinks fit, reports its opinion n to

the president. In this content, it is to be noted that in the constitutional history of Bangladesh

only one reference has been made to the appellate division see\king its advisory opinion.

The Supreme Court observed that if a member or members of parliament remain absent without

leave of parliament for 90 consecutive setting days, he or she, on they do it on pain of vacating

his or her their seats. The Supreme Court further held that Speaker would compute and determine

the period of absence. By giving this advisory opinion, the Supreme Court significantly

contributed to democratic governance in Bangladesh. (29)

Steps taken for the development of the judicial system to

establish good governance:

The Judiciary of Bangladesh especially the Higher Judiciary has been facing the erosion of

reliability and credibility within the public minds as there are growing allegation of unfair

practice in regards from appointment process to judicial proceedings. All the judies of the

Supreme Court particularly the chief justice is seen as the one holding the most important

balancing of power under the constitution. But, several recent incidents relating to arbitrary

interventions by some chief justices of Bangladesh have raised question as to image, impartiality

and independence of the judiciary as a whole in the country, it is impediment to establish good

governance. In the wake of this backdrop, some reform measures must be undertaken

immediately in order to ensure the truly independence of higher judiciary and establish good

governance, and thereby to bring back eroded confidence and credibility amongst the public

minds of its neutrality and independence.

These following steps can be taken for the development of the judicial system to establish good

governance,

(i) For the development of the judicial system the decision to increase in number of judges in the

higher judiciary should be made subject to parliamentary security and informed debate. It

should be decided being parliament after discussion and debate among the amentarians,

along with this, consultation with chief you or collegiums of senior judges in appointment of

judges in the supreme court should be made mandatory and the opinion and views of the

chief justice or the a repaid collegiums should enjoy primary in those development of the

judicial system to establish good governance.

(ii) Secondly the conditions for the appointment of judges should be healthy and competitive so

that men of keen intellect. Vast legal experience, integrity and above all honest from amongst

the lawyer get opportunity to acts as judges.

In Bangladesh, Article 95(1) of the constitution monopolizes the president to appoint the

chief justice and other judges of the higher judiciary which provides adequate scope for

executive control, personal favoritism and political bias over these appointments. As we

know that the president is usually appointed in our country from amongst loyalist to the

ruling party except very few exceptions. In order to remove this executive monopoly as well

political consideration over the appointment of judies in the Qrex court.

The Article 95(1) of the original constitution stating “the chief justice shall re appointed by

the president and other judges shall be appointed by the president after consultation with the

chief justice should be revived.”

Along with this, we should think of introducing clear cut and well-guarded method for

appointing judges of the Supreme Court to establish greater transparency and accountabilibity in

the election process. There can be a constitutional body comprising the President, Prime

Minister, Speaker, leader of the opposition, Chief justice; last retired chief justice, attorney

general, president of the Supreme Court, Bar association and Senior most three advocates of the

supreme court appointing judges to the High Court Division. This body will appoint judges to the

High Court Division from among advocates of the Supreme Court, district judges, district

magistrates, university teachers and law researchers. The judges of the Appellate Division and

the Chief Justice will be appointed based on seniority, adherence to which will be mandatory for

the executive, this steps can be taken for development of the judicial system to establish good

governance.

(iii) Article 95 (2) the parliament must, under the mandate, immediately elaborate specific

qualifications for appointment in the higher judiciary in order to avoid the scope of political

manipulation in the appointment process.

For example: In regards to ten years experience in the High Court, the act should ask for

ancillary requirements. Such as : the person to be considered for appointment must pay

subscription regularly for ten years, must have experience of conducting at least two cases alone

or with senior judges every years in his first five years as advocate and alone in next five years,

thus process develop the judicial system and ensure good governance. Other conditions for

appointment may includes mandatory disclosure of his engagement in any other profession

during the ten years of enrolment as advocate in the supreme court non-affiliation with any

political party, acceptable educational qualifications, assets and wealth disclosure etc, this

process also can be taken for ensuring good governance.

(iv)The scope of recruitment of judges after their retirement has to re totally prohibited for such

opportunity may inspire judge to learn towards government in expectation of getting appoint in

various profitable judicial and quasi judicial offices. To that end, the original Article 99 of the

constitution putting total ban on appointment en retired judge to any public office whatever

should be restored. That helps to develop the judicial system to establish good governance.

(v)The independence and efficiency of Higher Judiciary could have been ensure by an efficient

system of monitoring the performance of the judges, Bangladesh constitution has provided a

supreme judicial council in order to ensure accountability of the judges by prescribing code of

conducts and investigating their incapacity or misconduct. But in practice the council has hardly

played any pro-active role in monitoring the extent to which judges are adhering to the code of

conduct.

The supreme judicial council should be enhanced to initiate so motto enquiry into conduct and

capacity of judges and also the existing code of conduct should be modified which ultimately

help to ensure the accountability and efficiency of the judges in the Higher Judiciary. For the

development of the judicial system to establish good governance this steps can be taken.

(vi) The salary, remuneration and other privileges of the judges should be increased manifold so

that they can easily maintain a reasonable standard of life training for the additional judges of the

higher judiciary should be arranged. The training is necessary tools for developing analytical

skills, reasoning and making decisions, it helps the judges more efficiently and impartially which

is helping to judicial system to establish good governance.

(vii) In Bangladesh the higher judiciary has been much more politicized than that of other

political institutions. After independence every successive government has been seeking greater

control and intervention over the judiciary. The way the Higher Judiciary is being used by the

wielders of power willingly or unwillingly allow the image of the judiciary tarnished beyond

repair without realizing the fact that it would tarnish the image of the republic and no sector or

part of the republic would be immune from the ultimate falter unless corrective measures are

taken on urgent basis to depoliticize the higher judiciary, the best resort of general people for

getting justice following the steps the judicial system of Bangladesh can be more perfect and

then good governance established.

(viii) And finally the separation of judiciary and judicial independence create heavy financial

burden on itself. Therefore mobiliging financial and human resources are vitally important for

effective and impediment functioning of Higher Judiciary. At present, the Supreme Court is

dependent for financial matters on the executive branch of the government as budget allocation

for meeting the expense of the Supreme Court by the relevant ministry which is impediment in

the way of development of judicial system. For remove the block, a separate pay commission as

mandated by judicial Pay Commission Rule should be established soon to formulate separate

salary structure for judges and other officials of the judicial services to reflect nature of their job.

Finally we can say that if all the above steps can be taken in judicial system of Bangladesh, we

believe good governance is established. (30)

Conclusion:

The foregoing discussion reveals that there is a close relationship between good governance and

judiciary. The judiciary plays the role of coordination between the other two organs of the state.

Its role is therefore not merely to setting disputes within the courtroom between two disputants,

but also about executive and administrative action.

By dint of its review provision, the judiciary is an effective check against executive arbitrariness.

It protects citizens against abuse of executive power and keeps the power of the agencies within

limits. The Judiciary interprets and applies laws and also ensures that laws are duly observed and

applied by all the relevant agencies, public of private. Efficient exercise of judicial powers and

functions has therefore a far reaching impact on governance. In the context of Bangladesh the

judiciary has an enhanced role to protect the rights and interests of the marginality, backward and

vulnerable sections of society. However, the judiciary can help those sections of society in

Bangladesh that are backward and disadvantaged in terms of access to justice.

It is clear that the judiciary role in governance is very effective and urgent. If the separation of

the judiciary from the executive was to be completed and the proposed policy implemented the

judiciary would be more efficient and effective in playing its role. As a result role of law, human

rights, equal right, fair and transparent justice would be ensured by the judiciary and in turn, this

would be helpful in ensuring good governance in Bangladesh.

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Author: Baha Uddin Emon, 19, is a third year undergraduate student of political science at the University of Dhaka ,Dhaka-1000,Bangladesh ,He was born in Chittagong on December 21,1994.He lives in Dhaka