Separation of Power

Question: Explain the theory `separation of Judiciary’ or `independence of

Judiciary’.
Answer:
Where there is no effective separation of judiciary, there is no independent judiciary. Where there
is no independent judiciary, there is no rule of law.
Separation of judiciary is the precondition to judicial independence. Judicial independence is the
concept that judiciary needs to be kept away from the other branches of government.
Cornell Law School: “Separation of powers is a doctrine of constitutional law under which the
three branches of government (executive, legislative, and judicial) are kept separate. This is also
known as the system of checks and balances, because each branch is given certain powers so as to
check and balance the other branches.”
Judicial independence refers to the separation judiciary and independence of judiciary.
Article 22 of the constitution: The state shall ensure the separation of the judiciary from the
executive organs of the state.

Principles of judicial independence:

1. Personal independence (not subject to executive control)
2. Substantive independence (functional or decisional independence)
3. Internal independence (independence from judicial superiors and colleagues)
4. Collective or institutional independence (independence as an institute)

Conditions of judicial independence:

1. Appointment of judges
2. Tenure of the judges
3. Discipline of judges
4. Adequate remuneration and privileges
5. Institutional independence of the judiciary

Following features of Separation of Power are outlined by Montesquieu:

 The government should be entrusted to three organs i.e., the executive, the legislature & the
judiciary)
 Each organ should be entrusted to a separate person or body of persons.
 The legislature will only legislate, the executive will execute the laws passed by the legislature
and the judiciary is to apply laws in individual cases.
 Each organ should confine itself to its own jurisdiction and should not encroach on the
jurisdiction of other organs.
 Each organ should be independent in discharging its functions.

Separation and Independence of Judiciary in Bangladesh:

In Bangladesh, the separation of the judiciary and its independence are constitutional mandates as
they are incorporated in the several articles of the Constitution of the People’s Republic of

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Bangladesh. Article 22 of the Constitution requires ``the State shall ensure the separation of the
judiciary from the executive organs of the State.”
Article 94(4) of the Constitution states that “the chief justice and the other judges of the
Supreme Court of Bangladesh shall be independent in the exercise of their judicial
functions.”
Article 116A of the Constitution provides that ``all persons employed in the judicial service and
even all magistrates shall be independent in the exercise of their judicial functions.
Masdar Hossain, a district judge along with another 441 judicial officers who brought a writ
petition in 1995 to the HCD, which is known as the Masdar Hossain case. In this case the
petitioners claimed inter alia:
i. Inclusion of judicial service in the name of BCS (Judicial) under the Bangladesh Civil
Services (Re-organization) Order, 1980 is ultra vires the Constitution;
ii. Chapter II of Part VI of the constitution has already separated the lower judiciary from
executive where necessary amendments of article 115 may be required for full
separation;
iii. Judges of the subordinate courts being presiding officers cannot be subject to the jurisdiction
of the administrative tribunal of the executive.

Twelve Directions: The ‘Twelve Directions’ given in this land mark judgment were declared as
the operative part of the judgment by the Appellate Division. The directive points are as follows:
1. The judicial service is a functionally and structurally distinct and separate service from the
civil executive and administrative services of the Republic and it cannot be amalgamated,
abolished, replaced, mixed up and tied together with the civil executive and administrative
services.
2. Article 133 and Article 136 of the Constitution and the Services (Reorganization and
Conditions) Act, 1975 have no application in the above matters in respect of judicial functions.
3. The creation of BCS (Judicial) cadre along with other BCS executive and administrative cadres
by the Bangladesh Civil Service (Reorganization) Order, 1980 with amendment of 198 is ultra
vires the Constitution. Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to
the judicial service.
4. a Judicial Services Commission be established forthwith with majority of members from the
Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the
Judicial Service.
5. under Article 133 law or rules or executive orders having the force of Rules relating to posting,
promotion, grant of leave, discipline (except suspension and removal), allowances, pension (as
a matter of right, not favour) and other terms and conditions of service be enacted or framed or
made separately for the judicial service and magistrates exercising judicial functions.
6. To establish a separate Judicial Pay Commission to review the pay, allowances and other
privileges of the judicial service.
7. in exercising control and discipline of persons employed in the judicial service and magistrates
exercising judicial functions the views and opinion of the Supreme Court shall have primacy
over those of the Executive.
8. The essential conditions of judicial independence in Article 116A, elaborated in the judgment,
namely, (1) security of tenure, (2) security of salary and other benefits and pension and

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 (3)institutional independence from the Parliament and the Executive shall be secured in the law
or rules made under Article 133 or in the executive orders having the force of Rules.
9. The executive Government shall not require the Supreme Court of Bangladesh to seek their
approval to incur any expenditure on any item from the funds allocated to the Supreme Court
in the annual budgets, provided the expenditure incurred falls within the limit of the sanctioned
budgets.
10. The members of the judicial service are within the jurisdiction of the administrative tribunal.
The declaration of the High Court Division to the opposite effect is set aside.
11. The declaration by the High Court Division that for separation of the subordinate judiciary
from the executive no further constitutional amendment is necessary is set aside. If the
Parliament so wishes it can amend the Constitution to make the separation more meaningful,
pronounced, effective and complete.
12. Until the Judicial Pay Commission gives its first recommendation the salary of Judges in the
judicial service will continue to be governed by status quo.
Finally, separation of judiciary had been formally possible from 1st November 2007 when the
separation of the judiciary was established by the then caretaker government, with a view to
giving the effect of the mandatory directions of the Masdar Hossain judgment which is
popularly known as the separation of powers case. In order to meet the constitutional mandate
under Article 22 of the Constitution and implement the directions of Masdar
Hossain’s judgment, the then caretaker government took the necessary steps to implement the
directives of the Masdar Hossain case and ensured separation of the judiciary with the
enactment four sets of rules including Bangladesh Judicial Service Commission Rules 2007.
Accordingly the judiciary was finally separated from the executive on November 1, 2007.

Contradiction with the concept of Independence of Judiciary: Articles 115 and 116
of the Constitution have created a real bar to a meaningful and effective separation and
independence of the judiciary in Bangladesh. These two articles have empowered the President to
make appointments of judges and judicial magistrates of the subordinate judiciary.
By 16th Amendment to the Constitution of Bangladesh, the Parliament was empowered to remove
judges of the Supreme Court and Supreme Judicial Council was abolished.

Causes why independence of judiciary is not working properly in Bangladesh:

1. The trial by mobile courts held by the executive magistrates can be questioned in respect of
independence of independence of judiciary because the executive here is holding a
mainstreaming judicial activity. It is also hampering citizen’s rights regarding fair trial by the
open court enshrined in Article 35 of the Constitution.
2. The judiciary has been separated from the executive but a distinct or separate ministry or
secretariat is yet to be established.
3. Absence of Separate Investigation Cell and Independent Prosecution Service is hindering
the judiciary to be self-dependent.
4. Absence of Financial independence is another hindrance for the effective separation and
independence of the judiciary.
5. Political and Administrative Pressure hampers the smooth and independent functioning of
judiciary.

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However, for meaningful and effective independence of judiciary, aforesaid constraints should be
abolished as soon as possible.
Following features of Separation of Power are outlined by Montesquieu:
 The government should be entrusted to three organs i.e., the executive, the legislature & the
judiciary)
 Each organ should be entrusted to a separate person or body of persons.
 The legislature will only legislate, the executive will execute the laws passed by the
legislature and the judiciary is to apply laws in individual cases.
 Each organ should confine itself to its own jurisdiction and should not encroach on the
jurisdiction of other organs.
 Each organ should be independent in discharging its functions.
The independence of the judiciary is principally a result of the doctrine of separation of powers, the
doctrine which means the distribution of powers among different organs of the government.
According to Wade and Philips, the theory of separation of the powers signifies the following
three different things:
1. That the same person should not form part of more than one of the three organs of the
government;
2. That one organ of the government should not interfere with any other organ of the
government;
3. That one organ of the government should not exercise the functions assigned to any other
organ.
According to Montesquieu, if the executive and the legislature are the same persons or body of
person there would be a danger of the legislature enacting oppressive laws which the executive will
administer to attain for its own ends. He further said that if one person or body of persons could
exercise both the executive and judicial powers in the same matter there would be arbitrary power
which would amount to complete tyranny and there would be no objectivity of law.
The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair
government. It apparently evolved from the desire to limit the concentration of power within any
one branch of government, a problem most famously articulated by Lord Acton:
“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad
men.”

For Montesquieu:
When legislative power is united with executive power in a single person or in a single body of the
magistracy, there is no liberty, because one can fear that the same monarch or senate that makes
tyrannical laws will execute them tyrannically.
Nor is there liberty if the power of judging is not separate from legislative power and from
executive power. If it were joined to legislative power, the power over the life and liberty of the
citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive
power, the judge could have the force of an oppressor.
All would be lost if the same man or the same body of principal men, either of nobles, or of the
people, exercised these three powers: that of making the laws, that of executing public resolutions,
and that of judging the crimes or the disputes of individuals.

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Though the doctrine of Separation of Powers is traceable to Aristotle but the writings of Locke and
Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive
and judicial power is grounded.
The legislative organ of the state makes laws, the executive forces them and the judiciary applies
them to the specific cases arising out of the breach of law.
The principle of separation of powers would help to prevent the rise of tyrannical government by
making it impossible for a single group of persons to exercise too much power. Accordingly they
intended that the balance of power should be attained by checks and balances between separate
organs of the government.
A system of “checks and balances”, the origin of which, like separation of powers itself, is
specifically credited to Montesquieu. Checks and balances allow for a system based regulation that
allows one branch to limit another. Each branch has powers that it can use to check and balance the
operations and power of the other two branches.
The idea of this separation of powers is traceable to Aristotle. But the writing of Locke and
Montesquieu gave the theory of separation of powers a base on which modem attempts to
distinguish between legislative, executive and judicial power is grounded.
Montesquieu’s great point was that if the total power of government is divided among autonomous
organs, one will act as a check upon the other and in the check liberty can survive.
The most important aspect of the doctrine of separation of powers is judicial independence from
administrative direction. There is no liberty, if the judicial power be not separated from the
legislative and executive. The judiciary is beyond comparison the weakest of the three departments
of power.
According to Friedman and Benfield, each of the three functions of the government contains
elements of the other two and that any rigid attempt to define and separate those functions must
either fail or cause serious inefficiency in government.
As Justice Frankfurters says: Enforcement of a rigid conception of separation of powers would
make modern government impossible. Strict separation of powers is a theoretical absurdity and
practical impossibility.
According to Basu, in modern practice, the theory of separation of powers means an organic
separation and a distinction must be drawn between essential and incidental powers and that one
organ of the government cannot usurp or encroach upon the essential functions belonging to
another organ, but may exercise some incidental functions thereof.
The doctrine of separation of powers is recognized in Bangladesh, especially in the constitution of
Bangladesh. But there is fusion of powers.
In Bangladesh the Chief Justice is appointed by the President and other judges is appointed by the
President after consultation with Chief Justice but in practical they are appointed by the Prime
Minister indirectly.
The modern day interpretation of the doctrine does not recognize the division of Government into
three water-tight compartments but instead provides for crossing rights and duties in order to
establish a system of checks and balances. Therefore, a system of checks and balances is a practical
necessity in order to achieve the desired ends of the doctrine of separation of powers.
The Doctrine of Separation of Powers is essential for the effective functioning of a democracy.
Debates regarding Article 22 of the Constitution and Separation of Judiciary:
The Constitution of Bangladesh in Article 22 speaks of the separation of the judiciary from the
executive stating, “The State shall ensure the separation of the judiciary from the executive organs
of the State.”
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An argument which has been is that since Article 22 is not judicially enforceable, the separation of
the judiciary as implemented by the two ordinances amending CrPC by the Caretaker Government
is invalid.
Article 116A states,
“Subject to the provisions of the Constitution, all persons employed in the judicial service and all
magistrates shall be independent in the exercise of their judicial functions.”

Concepts related to Independence of Judiciary:

Separation of Powers: Separation of powers is the division of works of the three organs of the
state namely executive, legislative and judiciary of the government so that one organ cannot
interfere with the other organ of the state.
Separation of Judiciary: Separation of Judiciary means separation of judiciary from the other two
organ of the state namely executive and legislative so that no other organ of the state can interfere
with the work of the judiciary. Separation of judiciary is the precondition to independence of
judiciary. Article 22 of BD constitution provides that `The State shall ensure the separation of
judiciary from the executive organs of the State’.
Independence of Judiciary: Independence of Judiciary is the precondition to ensure rule of law
and do complete justice.
Checks and balance: In every organ of the State there are some elements to interfere with and
establish control over other two organs of the State. Maintaining checks and balance in those
elements of the three organs of the State helps to ensure that no organ can become arbitrary to other
organs of the State and thus prevent interference of one organ with the functions of other organ.
Since complete separation is not possible or feasible because of interference between three organs
of the State, checks and balance in the interactions among the said three organs should be
maintained.