Separation of Power Under Bangladesh and USA Constitution

1. Documentation Chambers in Bangladesh, http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics/separation-of-power-a-comparative-study-under-uk-usa-and-bangladesh–date–10/03/2013.

2. Masder Hossain 52 DLR 82.

3. Separation Of Powers (2010, April 13) Retrieved May 13, 2013, from http://www.paperdue.com/Details/seperation+of+powers/168

4. In high court division three lacks case pending, ZATIO SHAPTHEAK THES SHOMOY – Monday – 18 – February-2013- page no- 01.

Summary of the Research:

An analysis into the three organs of the State and the relations between them is to be done in this research with the experience in different countries which will give a clear idea about the doctrine of separation of powers and its importance in different Constitutions.

Every modern government has generally three organs, namely, the Legislature, the Executive and the Judiciary. The significance over here is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co-ordination among them. It is not always easy indeed possible to determine under which head a particular task of governments falls, but the organs which mainly perform these functions are distinguishable.

Separation of judiciary has the prime and pivotal role to ensure good governance and the rule of law. After separation of judiciary the criminal administration of justice has got its new face, in terms of qualitative and quantitative justice.

The doctrine of separation of power has been incorporated in the Constitution of United States of America (USA). In the US constitution of 1787 the separation of powers was clearly expressed. Article 1 of the US constitution vests legislative powers in Congress, consisting of a Senate and a House of Representative, Article 2 provides the executive power in the President, and Article 3 provides the Judicial power in the Supreme Court and such other federal courts as might be established by Congress. In the American constitution, there is a system of “Checks and Balances” and the powers vested in one organ of the government can trench upon or encroach upon the power of the other.

Even in the US Constitution, there is not a complete separation of powers between the executive, legislative and the judicial functions, if by this is meant that each power can be exercised in complete isolation from the others.

Separation of power is not absolute; it is instead qualified by the doctrine of checks and balances. The system of checks and balances is designated to allow each branch to restrain abuse by each other branch.

The theory of integration of powers has been adopted in England. Though the three powers are vested in three organs and each has its own peculiar features, it cannot be said that there is no ‘sharing out’ of the powers of the government. The Lord Chancellor is the head of the judiciary, Chairman of the House of Lords (legislature), a member of the executive and often a member of the Cabinet. The judges exercise executive functions under the Trust Act and in supervision of wards of court and also legislative functions in making rules of courts regulating their own procedure. Members of the Cabinet are also members of the Legislature and are responsible to it and they play a very important part in legislative activities. Powers are conferred on them to make subordinate legislations and they also exercise judicial powers in different forms of administrative tribunals. The House of Commons is not exclusively concerned with legislative activities, as it exercises judicial powers also in cases of breach of its own privileges.

In England, there is nearly complete confuse of the executive and legislative powers. The British system has both the judiciary and the legislature creating the law; it is equally difficult to see the separation of power.

The doctrine of separation of powers is accepted in India. According to Article 53(1) of the Constitution of India, the executive powers are with the President, the legislative powers with the Parliament, and the judicial powers with the judiciary (the Supreme Court, High Courts and subordinate courts).

But if we study the constitutional provisions carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense.

The Constitution of Bangladesh vests the executive power of the Republic in the executive and the legislative power of the Republic in Parliament. Though there is no specific vesting of the judicial power of the Republic, it is vested in the judiciary.

It is to be noted that the doctrine of separation of powers should not be taken to mean that the executive and the legislature cannot be directed by the judiciary to discharge their functions if they are found inactive in discharging of the function assigned to them by the Constitution. The Supreme Court has been made the guardian and protector of the Constitution and therefore it can direct the legislature and executive to discharge their functions properly. It is the function of the legislature to enact law and of the executive to implement the law and if they do not perform their functions properly, it is not the power but the duty of the Supreme Court to compel them to discharge their functions properly. If such a direction is issued by the Supreme Court against the executive or legislature, it cannot be said that it is against the doctrine of separation of power.

Thus, the three organs of the government are not separate. Actually the complete demarcation of the functions of these three organs of the government is not possible. Even Montesquieu did not mean that the legislature and executive ought to have no influence or control over the acts of each other, but only that the neither should exercise whole power of the other.

Statement problem:

This research paper contains and highlighted on the topic of separation of power, some statement problem over the topic bellow down;

• What is the reason for late application separation of power in Bangladesh?
• Why separation of power not properly apply in Bangladesh.
•  What the main reason for late implementation of separation of power in Bangladesh?

Object of the Research:

The aim of the research, i.e. the object of A Comparative Study on separation of power between Bangladesh & USA Constitution.

• To determine the relation between the organs of a state which are really exist in present?
• To provide solutions, what should be the relation between the organs of a particular state?
• To find out the loopholes about the Doctrine of Separation of Powers.

Hypothesis:

when I have finish my writing over the topic Government will be realize or find out the problem, which are relating with the matter to not properly enforce the separation of power in Bangladesh .Government will take necessary stapes to solve this identifying problems, if necessary make rule to solve that problem, make necessary rule for it, also Government think any law need amendment do this necessary thing.

Scope of the Research:

The separation of powers deals with those organs of the different countries with different Constitutions and the manner in which the powers are exercised. It is also deals about the procedures maintaining by the states and the procedures by which the states can maintain its organs effectively. Thus the proper separation of powers is impossible and wants to get the remedy of problem implementation of separation of power.

Methodology:

The research paper contains the basic principle of the Separation of Powers. It also established the history behind the separation of Powers. The defects and effects of the separation of powers of a state are placed in this dissertation and the various Articles of the various Constitutions are also found in this research paper and stop the way of get true justice. So, to prepare the research paper I have followed both the historical, analytical, doctrinal and social legal method. I have also followed the statistical methods, journals and websites.

Meaning of Separation of Powers:

The doctrine of separation of power means that none of the organs of the government, i.e. the legislative, executive or judicial should ever exercise the powers of the other. It means that three departments of governments are to be separate and distinct. They are to be independent of one another and each can exercise only the type of authority, legislative, executive or judicial.5

According to Wade and Phillips, this doctrine of separation of power, means that the same person should not compose more than one of the three departments of the government, one of departments of the government, one department should not control and interfere with the acts of the other two departments, and one department should not discharge the functions of the other two departments.

1. A.D. Ray Choudhuri , Fundamentals of Administrative Law ,2^nd ed .(Central Law Agency Allahabad ,1989) p.11.
2. A.D. Ray Choudhuri, ibid, pp.11-2.

Historical background:

In 1690, the Englishman John Locke wrote in his Second Treaties of Civil Government: It may be too great a temptation to human frailty, apt to grasp at power, for the same person who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage.7

The doctrine of separation of powers was developed further by the French jurist, Montesquieu, who based his exposition on the British Constitution of the early 18^th century as he understood it. His division of powers did not closely correspond except in name with the classification which has become traditional; for, although he followed the usual meaning of legislative and judicial powers, by executive power he meant only ‘the power of executing matters falling within the law of nations’, i.e. making war and peace, sending and receiving ambassadors, establishing order, preventing invasion. He stated the essence of the doctrine thus: when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. Again there is no liberty, if the judiciary power be not separated from the legislative and executive. Where it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Where it joined to the executive however, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.8

1. E.C.S. Wade and A.W. Bradley, Constitutional and Administrative Law, 10^th ed. (Longman Group Ltd. United Kingdom, 1985) p. 50
2. E.C.S. Wade and A.W. Bradley, ibid, pp. 50-1.

In Montesquieu observation of the British Constitution in the 18^th century, he saw that parliament had achieved legislative dominance over the King with the passing of the Bill of Rights and that the independence of the judiciary had been declared, but that the King still exercised executive power. Before the century was over, however, there had been established in Britain the Cabinet system, under which the King governed only through ministers who were members of Parliament and responsible to it. This system, with its emphatic link between Parliament and the executive, in a major respect ran contrary to Montesquieu doctrine. It is in the United States Constitution that his influence can best be seen.9

Effects and Defects of Separation of Power:

Effect of separation of Power

1. 8. Ibid, p.5. Judicial Review and abuse of power [11 Feb 2011] ,Cuts and judicial independence [9 Feb 2011] The two-year LLB [2 Feb 2011] ,Judicial Review [25 Jan 2011] .
2.  Lichter V.US(1947)344U.S.743
3.  Dayaton-Goose R. Co. V. U.S.(1024) 263 US 456

Cognizance is an important, salient stage of the proceedings of criminal case where a higher degree of care and caution is a must. A criminal case with flawed cognizance, made ready for trial, would aggravate sufferings of the people as it is quite explicit in the Bangladesh perspective having “as many tables and so much corruption”. Moreover, the executive magistrates devoid of legal background do not understand the nuances of legal phraseology. This is corroborated by the statistics about the highest acquittal rate — about 90% in criminal cases by the then executive magistrates. The whole nation is still carrying the bitter and dark history of illegality and miscarriage of justice, left by the executive magistrates in criminal cases in the name of justice. The sufferers have not forgotten how the then executive magistrates haggled on their order behind the curtain. Readymade orders were given in court where natural justice was set at naught. As a sequel, the entire institution of criminal justice became questionable, losing its acceptability to the countrymen.12

If the government is true to its commitment or promises to the people about a paradigm shift of conventional governance equation in Bangladesh, the bill for the separation of judiciary should be passed.

The dilatory tactics to ensure the separation of judiciary is nothing but a part of the mechanizations by the vested interests to deny good governance frustrate democracy and subvert efforts for institutionalizing the rule of law. Efforts to subvert the real separation of judiciary from the executive would impede the process for sustainable development of a basic institution like that of judiciary. The logic of the personnel of the administrative cadre in support of criminal magistracy is devoid of pragmatism and is purported for preserving their domain of power that can be used to maximize corruption.13

For the ultimate welfare of the countrymen, the move to share with the executive the power to deal with criminal cases must not be carried forward. The civil society, non-government organizations (NGOs) and other stakeholders should come forward with their strong advocacy to frustrate attempts by the vested interests to jeopardize the smooth functioning of a judicial system that can be ensured only through separation of power.”14

1.  R.V.Halliday,(1917) A.C.260(H.L) .
2. Cf Emp. V. Sibnath , A . 1945 p.c. 156.
3. http://www.thefinancialexpress-bd.com/2009/03/25/62143/, last visited on 10 July, 2011.

In his book Commentaries on the Laws of England, published in 1765, Blackstone had observed that if the legislative, the executive and the judicial functions were given to one man, there was an end of personal liberty. Madison also proclaimed “the accumulation of power, legislative, executive and judicial, in the same hands, whether of one, a few or many and whether hereditary, self-appointed or elective justly be pronounced the very definition of tyranny.” The constituent assembly of France had declared in 1789 that there would be nothing like a constitution in the country where the doctrine of separation of powers was not accepted.15

Defects of separation of Powers

Though, theoretically, the doctrine of separation of powers was very sound, many defects surfaced when it was sought to be applied in real-life situations. Mainly, the following defects were found in this doctrine:

Historically speaking, the theory was incorrect. There was no separation of powers under the British Constitution. At no point of time, this doctrine was adopted therein. As Prof. Ullman says: “England was not the classic home of separation of powers.” Donoughmore Committee also observed: “In the British Constitution there is no such thing as the absolute separation of the legislative, executive, and judicial powers.” It is said: “Montesquieu looked across foggy England from his sunny vineyard in Paris and completely misconstrued what he saw.”16

1. Cf Emp. V. Sibnath , A . 1945 p.c. 156.
2. http://www.thefinancialexpress-bd.com/2009/03/25/62143/, last visited on 10 July, 2011.
3. C.K. Takwani, Lectures on Administrative Law, 3^rd ed.

It is impossible to take certain an action if this doctrine is accepted in it’s entirely. Thus, if the legislature can only legislate, then it cannot punish anyone, committing a breach of its privilege; nor can it delegate any legislative function even though it does not know the details of the subject matter of the legislation and the executive authority has expertise over it; nor could the courts frame rules of procedure to be adopted by them for the disposal of cases. Separation of powers, thus, can only be relative and not absolute.18

Modern state is a welfare state and it has to solve many complex socio-economic problems and in this state of affairs also, it is not possible to stick to this doctrine. As justice Frankfurter says: “Enforcement of a rigid conception of separation of powers would make modern government impossible.” Strict separation of power is a theoretical absurdity and practical impossibility.

According to Basu, Administrative Law, 1996, 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. 19

1. Nelly Zaman v Gias Uddin Khan, supra no. 55.
2. For example Khodeja Begum and Others v Md. Sadek Sarkar, 50 DLR,HCD, p.
3.   C.K. Takwani ,ibid, pp. 31-2.

Implementation of separation of power in Bangladesh:

First  November 2007, Finally Bangladesh government’s declared formal separation of power executive and judicial function separate from each other, It’s indicate that two separate magistracies for judicial and executive function operate this two organ of the government** 21

The provision of separation of power of Bangladesh constitution provides the independence of the judiciary. **22

In January 2007 government proclaim a gazette notification for separation of the subordinate judiciary from executive force directed in 1999 by the Supreme Court.

The November 1 ceremony create the improves of two new magistracies the district judicial magistracy and the metropolitan magistracy 218 judicial magistrates where appointed, while the judicial power of 170 administrative officials was withdrawn.

The ground reality, in Bangladesh, is judiciary processes neither the financial resource nor the power to extract the allegiance of the other organs of the state to the constitution and implementation of its relates to the separation of the judiciary from the executive. As such, in spit of public declarations and commitments to judicial separation from the executive branch, political groups and the administration have mentioned the status.

Thus the intentions of our constitution have not been carried through. Therefore, although the judiciary is in the process of separation of power, the civil society and the political class of Bangladesh should relentlessly pursue the issue until the constitutional dignity and effectiveness of the supreme judiciary is full and credibly established.

1. Shameema Rahman, Government Organization, http://www.thedalystar.net/story.php?nid=9805. Date-13-04-2013
2. Article -22 of the Bangladesh constitution.

Why the separation of power properly not implement in Bangladesh.

Judicial system of Bangladesh is burdened with huge case backlogs due to the system and procedural reforms and improvements resulting in limited access to justice opportunity for the vulnerable groups of people, strengthening the formal justice system and the rule of low is priority for the Government of Bangladesh and the Supreme Court.  There is also increasing demand for improvements in the administration of timely affordable and equitable justice….. So the separation of power properly not implement in Bangladesh. That’s why:   The law commission of Bangladesh established the Ain commission Ain, 1996 (Act no XIX of 1996) pointed out some reasons for the delay in disposal of civil cases in our subordinate Courts and provided some suggestions for improving the situation. The cases for the delay in disposal of civil cases are-

Abundant number of cases in the subordinate Courts.

Absence of specialized Court.

Defects of procedural law.

Luck of dutifulness of the judges.

Luck of effective monitoring in the judicial system.

Non-cooperation of the lawyer.

Problems in serving process,     chance of amendment of plaint and submission of supplemental written statement and chance prayer of unconditional interlocutory orders.

Moazzem  Hossain V. state (1983)35DLR(AD)290 .

First, their living and working condition must be significantly improved. They should work in comfortable surrounding e.g. air- conditioned or cool rooms and have access to computers/word process/ Dictaphones and tape- recorder for quick tracking and disposable of case. Secondly, they must be trained properly and have to undergo periodical trainings in government sponsored Instititutes. Thirdly, there must be a trained case flow manager attached to a court to monitor the progress of the case and persuade lawyers and advice a judge (if necessary with the help of a computer) how to deal a case quickly.24

Modern information technology should be in courts. Still in the subordinate courts the documents are produced manually which take much time.

Accountability of the judicial officers can be instrumental to minimize delay in lower court. ²⁵

Very recently the Government has given the district Judge the power of Revision. The intention of the Government was good but the lawyers and parties to the shit abuse this provision frequently and create misery to the other party to the suit.

ADR system should be encouraged .26

Observation of Masder Hossain case:

1. The law commission of Bangladesh Thirteenth Report on ‘’Proposals for speedy Disposal of suits and cases in sub-ordinate courts in Bangladesh ‘’ Para 4.
2.  Zahir Dr.M. Delay in Court and Court Management, Bangladesh Institute of Law and International Affairs, Dhaka, 1988, p.45.
3. 21. The law commission of Bangladesh Thirteenth Report on ‘’Proposals for speedy Disposal of suits and cases in sub-ordinate courts in Bangladesh ‘’ Para 4.

The original Constitution**27 Article 96(2) provided that the parliament by not less than two-thirds of the total number of member of parliament can remove a judge on the grounds of proved misbehaver or incapacity. The removal procedure in most of the countries remains with the parliament. After amendment of **28 Article 96(2)  this power has been given to the Supreme Judicial Council which consists of the chief  Justice and two next senior judge of the Supreme Court of Bangladesh. As the constitution reposed this power of the Judges themselves the obligation and responsibility lies on them to formulate a Code of Conduct under the Constitution to be strictly followed for proper functioning of the superior courts. It may be mentioned here that the Supreme Judicial Council never sat in the past nor did any deliberation take place. A Code of Conduct (But during the first martial law regime the parliament was dissolved on 8^th November, 1976. A question was, therefore raised as to how a judge could, if needed be removed when parliament would stand dissolved or not in existence. Thinking for such an unforeseen situation President Ziaur Rahman by Second Proclamation order substituted the provision of Supreme Judicial Council for the earlier one.)Was formulated in 1977. In view of changing social, economic and political condition another new Code of Conduct was formulated    7th May 2000 by Supreme Judicial Council and it was circulated to all the judges of the Appellate Division and the High Court Division to adhere to the said Code of Conduct for proper meaningful functioning of the judiciary by guaranteeing accountability so that people can repose faith, trust and confidence in the Higher Judiciary of Bangladesh.

1. Article 96(2) of the Bangladesh Constitution, 28.  Article 96(2) of the Bangladesh Constitution, 29. Article 96(4) OF the Bangladesh Constitution, 30.  C.J. Latifur Rahman , Judicial Independence and Accountability of judges and the Constitution of Bangladesh , 20 BLD (2000)Journal 85.
2. B .Independence of Lower judiciary.

The larger portion of our population is directly connected with the litigation in the courts of the subordinate judiciary. The subordinate judiciary is the base and foundation of the judiciary. However, unfortunately since our independence and the subordinate judiciary lacked independence and hazardous problems beset with it where the mass of litigants come with a hope to get justice. In line with the judgment of the Appellate Division in Masder Hosain case the caretaker government headed Dr.Fakhruddin Ahemd finally completed the task of separation of judiciary from the clutches of the executive on 1^st November 2007.However the history of the separation of judiciary from executive seems relevant for students researchers of law and this is why historical part of judiciary separation are given bellow. The lower courts comprise the following two types of courts.

Magistrates Courts 2.Other Lower Courts.

Constitutional libation of subordinate Courts and Controversy with their Independence and Separation. Part 6 of the Constitution of Bangladesh provides for the judiciary of which Chapter 2deals with subordinate Courts. There are four Articles i.e. 114,115,116,116A**31 dealing with constitution of Bangladesh safeguards of the subordinate Courts. Articles 115 deals with the appointment in the subordinate judiciary .It states that appointments of persons to offices in the judicial services or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf .Thus the executive is the absolute maker of the judges and judicial officers in the subordinate judiciary as well as in the magistracy. In the original Constitution there was provision of Constitution with the Supreme Court which was deleted by the 4^th Amendment .Thus no objective assessment is possible in the appointment of judges in the subordinate judiciary. As to the control and discipline of subordinate courts Article subordinate116 states that this shall be exercised by the President in Consultation with the Supreme Court. However, this consultation with the Supreme Court has never been institutionalized and there are practical problems in doing this. This is because, first, the appointment was done absolutely by the executive; Second, all logistics and staff of the subordinate courts were provided and regulated by the Ministry of Law; third, neither the Supreme court .

Articles 114,115,116,116A of the Constitution of Bangladesh.

All Magistrates were linked with the executive functionaries. Magistrates were discharging duel function – judicial and executive .They was controlled by the Ministry of Establishment, the Ministry of Home Affairs and also the Ministry of Law, justice and Parliamentary Affairs. In discharging their judicial function they were very often dictated and influenced by the executive. As a result  they could not independently discharge their  judicial function  .It is impossible for a judge to take a wholly independent  view of the  case  he is trying ,if he feels himself to any extent interested in or responsible for the success of one side or the other. It is equally impossible for him to take an independent view of the case before him if knows that his posting, promotion and prospects generally depend on his pleasing the executive hand.

Magistrates discharging judicial function were never appointed froe persons with legal discipline. It is sometimes impossible to expect justice form a person with no institutional legal education. Being 1^st class executive officers Magistrates often did injustice. This is mostly the case because firstly they took the opportunity of illiteracy and ignorance of law of mass indigent litigants and secondly there was inherent lack of administrative check and balance in Magistracy and thirdly they were not under the unfettered control of the Supreme Court.

Magistrates are not judicial officers and are not under any administrative control of the District judges or the Supreme Court.

The Code of Criminal Procedure Act -1957.

The Code of Criminal Procedure Act- 1957

Drafting the Constitution and the Question of Separation of Judiciary In the new Constitution adopted in 1972 it was provided in**33 article 22 that the state shell ensure the separation of judiciary from the executive organ.34 provided further that Appointments of persons to offices in the judicial service or as Magistrates exercising judicial function shall be made by the President in accordance initiatives what difference do we see in the Constitution of 1972? We see that the matter of subordinate judiciary including the Magistracy has been given place in the Constitution unlike the Constitutions of Pakistan and India. Though it is sometimes argued that the original Constitution of Bangladesh ensured full independence of the judiciary, the fact is that it has ensured the independence of the higher judiciary but not of the lower judiciary.

Article 115 of the Constitution of Bangladesh.

Article 136of the Constitution of Bangladesh.

Article 137of the Constitution of Bangladesh.

Law commission’s Recommendation.

It is important to mention here that the Law  commissions in its Recommendation on the issue  of  separation of judiciary has reported that there are three main aspects of the concept of  separation of judiciary from the executive namely Constitutional aspect statutory aspect and systematized aspect. As to the materialization of the Constitutional aspect of separation of judiciary the commissions suggested to introduce the provisions of the original Constitutional of 1972 so far as they relate to the judiciary.

Now the question are-

1. If the Constitutional  aspect of  separation of judiciary so far as it relates to Magistrates courts was fulfilled in the original Constitution  can the law commissions or Constitution makers     now say that under the Criminal Procedure Code  the empowerment of judicial function over the executive officers was or is now un Constitutional.

2. If the original Constitution ensured the Constitutional aspect of separation of judiciary from the executive was it necessary or convincing to say by that very Constitution in article 22 that, the state shall ensure the separation of judiciary from the executive organ? Problem lies with the magistrates exercising judicial function. Because if the government now under the authority of a law declares some medical surgeons as magistrate and magistrates and gives them judicial functions to discharge they will come under the  Constitution  category of  magistrates exercising  judicial function and the case they will be under twin control rope in the wrist like control by the Supreme so far as they will discharge judicial functions and rope in the neck control by the Ministry of health  and Establishment .In such a case to which one will they learn? Surely to latter where they will have their promotion and factually they will give less emphasis in discharging judicial function however powerful control the Supreme Court may exercise over them. I asked a member of the law commissions in 1998 will it be possible for magistrates under such as twin control to discharging judicial function independently ?He answered ,such a situation will not exist after 20 or 25 years .we expect that after 20 or 25 years all Magistrates courts will be separated. How can the law commissions be sure that after 20 or 25 years this situation will not exist?

Will the restoration of the original Constitution ensure separation of the Magistrates courts? Of course the term magistrates exercising judicial function in the Constitution is not at all a bar of the government of introduce by law a department of separate judicial Magistrates and that can be done even in the absence of any such Constitutional provision .This is because the separation of judiciary is largely a statutory matter. Had the term magistrates exercising judicial function not been at all used in the Constitution the perspective of Magistrates courts would have been completely different, a matter completely out of Constitutional consideration. Generally subordinate courts are not counted as a subject matter of Constitutional law. It is also a recognized principle of common law jurisprudence that the common law countries judicial system  is an  integrated system and all courts and tribunal within the countries are subordinate to the supreme court if anything otherwise is not mentioned in the Constitution.

Masder Hossain 52 DLR 82.

The government is  to make to take necessary steps forthwith for the President to make rules under article 115**37 to implements its provisions , nomenclature  of the judicial service shall be designated as the judicial service in Bangladesh ,either by legislation of rules or order a judicial service commission is to be establish forthwith  with the majority of members  from the senior  judiciary of the Supreme Court  and  the subordinate court for recruitment to the judicial service.

Under article 133**38 law or rule relating to posting  promotion ,pay scale determination transfer ,granting leave and other terms and conditions of service consistent with article 116and 116a**39 shall be courts for recruitment to the judicial service.

The government is directed to establish separate judicial commission forthwith as part of the rules to be framed under article 115**40.

The conditions of judicial independence in article 116A namely 1.security of tenure 2. Security of salary and other benefits and pension 3. Consistent independence from the parliament and the executive shall be secured in the and rules made under article 113 or the executive orders having the force and rules.

The executive government shall not require the supreme court of Bangladesh to seek their approval to incur any expenditure on any items from the fund allocated to the Supreme Court.

Article 115 of the Constitutions of Bangladesh, Article 133 of the Constitutions of Bangladesh, Article115, 116and 116a of the Constitutions of Bangladesh,

Given this integrated scheme as designated in these articles if the Parliament or President attempts to make law of separate judiciary without involvement of the Supreme Court that law will certainly come under judicial attack .the task of separation of lower  judiciary is thus a shared responsibility of the executive legislative and judiciary  as envisaged in articles 114 116a* of the constitution and government cannot claim it as a sole the executive  or legislative policy prerogative .The best course for the government therefore would be to implement the judgment of the Masder Hossain case rather than flouting it on the ground of policy matter or public demand.**41

Magistrates Courts finally separated.

In view of the land mark judicial decision by the Appellate division in Masder Hossain case back in 1999 caretaker government headed by Dr. Fakhruddin Ahmed amended the criminal procedure code 1898 in November 2007 and along with these changes the lower  judiciary was separated from the clutches of the executive .Although the term executive magistrates  still exist in the code of criminal procedure code 1898 executive magistrates   are no longer vested with judicial function their function are administrative in nature . However it is to be noted that by the mobile court ordinance 2007 some judicial power  have been given to the executive magistrates .After November 1 ,2007 the basic laws with regard to separation of judiciary and newly  constituted  judicial service commissions  are as follows –

1. Bangladesh judicial service commission’s   rules 2007.

2. Bangladesh judicial service commissions   pay commission rules2007

3. Bangladesh judicial service    rules 2007(service, constitution, appointment, temporary dismissal)

4. Bangladesh judicial service commission’s   rules 2007(posting, promotion, grant of leave, control, and discipline)

5. Code of Criminal Procedure, 1898 ordinance 2007.

Other Lower Courts

article on’’Masder Hossain case: How long will it be a matter of pull and haul? Published in the daily independent dated 29^th August, 2003,

Though there is provision for constitution of  the reality is little different .Because it is frequently heard that in many cases all act of posting , promotion, grant  of leave etc. are done by the ministry of law , justice and parliamentary affairs and sometimes they do it without any pay approval of the is a mandatory one certainly the ministry has to obtain the approval but the minister obtains it latter on and in between some particular judge and  judge is harassed whom the minister has intention to harass .Such type of harassment is a great hindrance to the way of the judges to discharge impartial justice. They sometime loss the heart. It is heard  that frequently judge are threatened over the telephone .So what is needed urgently is to submit all power of control ling judge including their salaries to the unfettered hand of  Supreme Court, it will certainly ensure the collective as well as individual independence of the judge. To that end what should be done is that article 116**42 of the constitution of Bangladesh should be amended to the following effect:

The control and discipline of persons employ in the judicial service and judicial Magistrates shall vest in the Supreme Court.

Accountability of the Supreme Court.

Agreeing fully with the view expressed by the Chief Justice Latifur Rahman in his extra judicial capacity this author quotes him:

Public servants rule 1985 prescribes different modes of punishment of a judicial   officer from censure to dismissal on ground of misconduct. The is in view of the method of removal of subordinate judge and is not connected with his judicial Accountability.

With regard to the Accountability of the judge of the subordinate courts and tribunals article 109 of the constitution of Bangladesh authorizes the high court division to use full power of superintendence and control over subordinate courts and tribunals .The power and article 109 is a general power and includes the power to control all subordinate courts administratively and judicially. This jurisdiction given under article 109**43 has not been effectively implemented by the high court division.

Article 116 of the constitution of Bangladesh.

Article 109 of the constitution of Bangladesh.

The Supreme Court should under article 109 formulate code of conduct for the subordinate judges for the effective control and supervision of the high court division. The Supreme Court also issues an appropriate order if it thinks fit that some sort of direction is necessary for the better administration of justice.

Masder Hossain case and a Brief History of the Separation of judiciary in Bangladesh

British Period

During the British Period there was a demand for separation of judiciary from the executive. the British administration did not make this separation thinking that separation might go against their colonial interest .In 1919 the matter of separation of judiciary was raised in the house of commons but it was not discussed the contention that it was a matter within the jurisdiction of provincial government .In1921 a resolution regarding separation of judiciary was passed in the Bangle legislative assembly which was followed by formation of a committee. The committee reported that there was no practical problem in separation .However nothing more was done.

Pakistan period

After separation and independence in no step was taken in East Pakistan. The united front included the idea of separation in its 21 points formula in 1954 .The 1^st constitution in independent Pakistan was adopted in 1956. Unlike the government India act 1935 and constitution of India to 237 in chapter 6 Pakistan constitution of 1956 did not provided for any provision regarding subordinate courts or magistracy these were to be regulated by the code of civil procedure and the code of criminal procedure .In 1957 the East Pakistan provincial assembly passed the code of criminal procedure act 1957 which dealt with separation .This act was never given effective.In1958 the Pakistan law  commissions recommended to bring the judicial Magistrates under the control of the high court. In 1967 the law commissions again recommended to give effect to the Cr.P.C.act 1957 though nothing was done until1972. The code of criminal procedure act 1957 an overhauling amendment was made in the code of criminal procedure code with a view to separation the judicial and executive function of the magistracy .A full discussion of that amendment is beyond the scope of this work.

Bangladesh Period

In 1972 after independence of Bangladesh the constitution of the people republic of Bangladesh was adopted. Provision was made in article 22 in the fundamental principles of state policy that the state shall ensure the separation of the judiciary from the executive organs of the state.

In 1976 a law committee headed by justice Kamaluddin reported to implement separation of lower judiciary in three stages which are as follows:

First stage:   The government may be notification, appoint some particular magistrates at each station exclusively for judicial work this can be given effect forthwith without any additional expenses or administrative difficulties.

Second stage:  This should be the nature of separation of judicial function from executive as envisaged in the code of criminal procedure (East Pakistan Amendment) Act 1957 (Act No.36).

Final stage:  The final stage would be not only complete separation of judicial function from executive but also constitution of a separate integrated judicial service under the control of the high Court Division for civil and criminal work right up to the level of the District and session Judge. The committee also recommended that for creation of an integrated judicial service, it would be necessary to enact new legislation.

In 1987 an amendment to the Criminal Procedure Code President Orchid prepared a bill for separation of judiciary. The bill did not see the light of the day. In Pakistan separation was done in 1973 and in India in 1974 by an amendment to the Criminal Procedure Code .In 1990 the issue of separation of judicial was put into the manifesto of the three party alliance movement against Erased regime. In every election after 1990 both BNP, AL had allowed commitment in there manifesto that going to power they would separation of judicial from the executive.

In 1991 a privet members bill by Mr.Salauddin Yusuf  namely the constitution bill 1991 was introduced for farther  amendment of articles 95 ,98 115,116  of the constitution .The bill was sent to a selected committee which has about 13 meeting to consider it .The bill tried to reinstate the provision of the 1972 original constitution envisaged by the constitution makers. The revised bill was submitted in parliament in 1994.The original bill and the reversed bill reveals that the BNP has come out as the champion for the 4^th amendment of the constitution .Nothing was done to pass the bill. The bill did not deal with anything about separation of subordinate judicial. The government said did not accept any   proposal for amendment of articles 115 and 116 of the constitution .By not agreeing to restore the original provision of articles 115 and 116 the government the unmistakably demonstrated that they are opposed separation of subordinate judicial from the executive.

.Sheikh Hsian as the Prime Minister in the 7^th parliamentary kept echoing her commitment that she would do all for separation of subordinate judicial. A committee was formed headed by the secretary of law and parliamentary affairs. Aubdul Motin Khasru the law minister stated that a bill of judicial from the executive was under way but nothing more was done,

Masder Hossain case in 1999

judicial officer who were judges in different civil court filed write petition no 2424 in 1995 .The  petition alleged inter alia that ,

1. Inclusion of judicial service in the name of BSC under the Bangladesh civil services order 1980 is ultra virus the constitution.

2. Subordinate judicial under chapter 2 is the part of the part the judiciary of part 6 of constitution and thereby the subordinate judicial has already been separated by the constitution .Only the rules under article 115 of they are required to be made for giving full effect to this separation of judiciary.

3. Judges of the subordinate judicial being the presiding judge of the courts cannot be subordinate to any tribunal and as the judicial officers are not subject to the jurisdiction of the administrative tribunal.

The matter came up for hearing on 13.06.1996.Because the petition for time on behalf of the government were allowed several times it could not be heard before 01.04.1997 .Government did not contest the rule and the court heard the learned advocates for the petition only .After a long hearing with valuable comments and by Dr. Kamal Hossain,Syed Istaiq Ahmed  and Barrister Amir-Ul Islam the court delivered its judgment on 7th may 1997 .Against this judgment of the HCD the government preferred an appeal by leave and the Appellate Division partly  reversed the decision of the HCD by its  judgment delivered on 2^nd December 1999 .It would be better to discuss the important points of the  judgment Appellate Division  as far as they concern the concept   of separation of subordinate  judiciary from the executive .The main part of judgment came to be known as 12 point direction  which are as follows:

1. Judicial service is a service of the republic within the meaning of article 152 of the constitution, but it is functionally and structurally distinct and separate service from the civil, executive, administrative services of the republic.

2. The word Appointment in article 115 means that it is the President who under article 115 can create and establish a judicial service and a Magistrates exercising judicial function makes rule etc. article 115 does not contain any rule making authority with regard to other terms and the condition of service, Article 133,136 of the constitution and services act 1975 have no application in respect of judicial function.

3. Creation of BCS cadre along with other BCS executive and administrative cadres by Bangladesh civil service recruitment rule 1981 is inapplicable to the judicial service.

4. Government is directed to take necessary steps forthwith for the President to makes rule article 115 to implement its provision .Nomenclature to the judicial service shall be designated as the judicial service of Bangladesh. Either by legislation or rule or order a judicial service commissions is to be established forthwith with the majority of members from the senior judiciary of the Supreme Court and the subordinate court for recruitment to the judicial service.

5. Under article 133 law or rules relating to posting appointment, promotion, pay scale determination transfer, granting leave and other benefits of service consistent with article 116 and 116a shall be enacted separately for the judicial service.

6. Government is directed to establish a separate judicial pay commissions forth with a part of the rules to be framed under article 115

7. In increasing control and discipline of persons employed in the judicial service and Magistrates exercising judicial function under article 116 the view and opinion of the Supreme Court shall have primary over those of the executive.

8. The condition of judicial independence in article 116 a namely 1.security of tenure 2.security of salary and other benefits and pension 3.  Constitutional independence from the parliament and the   executive shall be secured in the law made under article 113 in the executive orders having a 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 items from the fund allocated to the Supreme Court.

10. The member of the judicial service is within the jurisdiction of the administrative tribunal.

11. Amendment of the constitution for separation of judiciary from the executive may be made by the parliament.

12. Until the judicial pay commissions gives its first recommendation the salary of judge in the judicial service will continue to be Government.

Implementation of the judgment in Masder Hossain case.

The judgment was pronounced by the Appellate Division in 1999 up to February 2006 the successive Government took 23 adjournments to implement the judgment on this or that plea. During the last Caretaker Government in 2001 4drafts were prepared.1.The code of criminal procedure 1898 ordinance 2001 2, judicial service commissions   rules200 3.two rules of judicial service commission’s   rules.

The caretaker Government did not implement any of that draft and the responsibility came to be for the subsequent BNP Government to implement the judgment. The incumbent upon BNP Government to implement came to be based on three sided  pledge ,first it was BNP avowed manifesto in the 8^th parliament  election to implement  separation of judiciary ,2.after winning the election the BNP promised  The  caretaker  Government that after formation of the newly elected implement the judgment Masder Hossain case without any delay and relying on that pledge The  caretaker  Government did not    of Government  it would implement the judgment in their last cabinet meeting ,3.it was mandatory for the Government to implement the judgment Masder Hossain case as an order of the higher court of the land. The BNP Government which completed his 5 year term in power did not do anything substantive to implement of their pledge .Barrister Mouded Ahmed who was the Minister of law and Parliamentary Affairs told the dailies that is would take another 6-7 years to implement the separation of judiciary. Lastly on 1^st February 2006 the appellate  Division rejected time player by the Government for third time and fixed February 22 as the date of the contempt petition against the Government for separation of judiciary from the executive as per  supreme court direction .Earlier the court twice rejected similar government pleas on august 7,2004 and again on October 20 2004 .Finally The  caretaker  Government headed by Dr.Fakhruddin Ahemd amended the criminal procedure code 1898 in November 2007 and along with these change the lower judiciary was separated  from the clutches of the executive on 1^st November 2007 .Although the term executive magistrate still exist in the code of criminal procedure 1898 executive magistrate are no longer vested with any judicial functions are administrative in nature.

Separation of Powers in United States of America

The doctrine of separation of power has been incorporated in the Constitution of United States of America (USA). In the US constitution of 1787 the separation of powers was clearly expressed. The framers of the constitution intended that a balance of powers should be attained by vesting each primary constitutional function in a district organ. Possibly they were imitating the form of the British constitution but by that time in Britain executive power was passing from the Crown to the Cabinet.

Justice Brandies says that the doctrine of separation of power easy adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid frictions, but by means of the inevitable friction incident to the distributions of the governmental powers among three departments to the people from autocracy.

Article 1 of the US constitution vests legislative powers in Congress, consisting of a Senate and a House of Representative, Article 2 provides the executive power in the President, and Article 3 provides the Judicial power in the Supreme Court and such other federal courts as might be established by Congress.

The inclusive and exclusive language, coupled with the fact that powers given in three different Articles, provide the constitutional basis for their separation.

In the American constitution, there is a system of “Checks and Balances” and the powers vested in one organ of the government can trench upon or encroach upon the power of the other. Jaffe and Nathanson stated: “The division of our government into three great establishments is an indisputable fact-writ large and clear in the basic documents.”

Jefferson said: “The concentration of legislative, executive and judicial powers in the same hands is precisely the definition of despotic government. It would be no alleviation that these powers will be exercised by a plurality of hands and not by a single person.

The president holds office for a fixed term of four years and is separately elected: he may therefore be of a different from that which has a majority in either or both Houses of Congress. His powers, like those of Congress, are declared by the constitution. While the heads of the chief departments of state are known as the Cabinet, they are individually responsible to the president and not to Congress. This system of a presidential executive is quite different from that of Cabinet government of Britain.

Neither the President nor members of his Cabinet can sit or vote in Congress; they have no direct power of initiating Bills or securing their passage through Congress. The president may recommend legislation in his messages to Congress, but he cannot compel it to pay need to his recommendations. While he has a power to veto legislation passed by a Congress, this veto may be overridden by a two-thirds vote in each House of Congress. Treaties may be negotiated by the president, but must be approved by a two-thirds majority of the Senate. The President has power to nominate to certain key offices, including judges of the Supreme Court, but the senate must confirm these appointments and may refuse to do so. According to Article 2(4) the President himself is not directly responsible to congress for his conduct of affairs: in normal circumstances he is irremovable from office, but the constitution does authorize the President to be removed from office by the process of impeachment at the hands of the Senate, ‘for treason, bribery, or other high crimes and misdemeanors.’ The prospect of such impeachment was the immediate cause of President Nixon’s resignation from office in 1974 following his complicity in the Watergate affair. Once appointed, the judges of the Supreme Court are independent both of Congress and the President, although they too may be removed from office by impeachment. Early in the history of the United States, the Supreme Court assume the power notable by the historic decision of Chief Justice Marshall in Marbury V. Madison, (1803) I Cranch 137, of declaring both the acts of the legislature and the acts of the President to be Unconstitutional.

Though, in 1787, when the American constitution was drafted, the doctrine of separation of powers was adopted, with the growth of administrative process the rigors of the doctrine have been relaxed. The President now exercises legislative functions by sending messages to the Congress and by exercise of the right of veto. The Congress has judicial power of impeachment and the Senate exercises executive powers regarding treaties and in the making of certain appointments. The Congress had delegated legislative power to various administrative authorities and regulatory agencies and these bodies exercise all types of functions. Thus, a single agency acts ‘successively as legislator, investigator, prosecutor, jury, judge and appellate tribunal’ and the Supreme Court has never held that the combination of all the powers in one agency is unconstitutional.

The American Supreme Court has power of judicial review. It can declare with the acts of judicial review of the legislature and executive, if they are found in the violation of the provision of the constitution. It can declare any law unconstitutional on ground of its not being in “due process of law”. Thus the functioning of one organ of the government is checked by the other organs of the government. This is justified on the basis of checks and balances. In spite of the doctrine the American legislature has made delegation of its power to the executive administrative authorities on an extensive scale. However, the legislature is required to lay down the policy or fix a primary standard.

Even in the US Constitution, there is not a complete separation of powers between the executive, legislative and the judicial functions, if by this is meant that each power can be exercised in complete isolation from the others. Indeed, having established the threefold allocation of functions as a basic, the Constitution proceeds to construct an elaborate system of checks and balances designed to enable control and influence to be exercised by each branch upon the others. The Watergate affairs showed not only the strong position of a president elected into office by popular vote: it was showed how a combination of constitutional powers exercised by Congress and the Supreme Court, as well as such forces as public opinion and the press, could combine to remove even the President from the office.

Now, the separation of powers in USA is chronologically discussed:

Legislative Powers in USA:

Congress has the sole power to legislate for the United States. Under the non-delegation doctrine, Congress may not delegate its law making responsibilities to any other agency. In this vein, the Supreme Court held in the case of Clinton V. That Congress could not delegate a “line-item veto” to the President, by which he was empowered to selectively nullify certain provisions of a bill before singing it. Article 1, Section 8 of the US constitution gives all the power to congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the constitution.

The President has the responsibility to preserve, protect and defend the constitution and the laws of the United States in much the same way as a vassal takes an oath of allegiance to his liege lord. He is delegated authority by and with the advice and consent of the Senate, but the Congress can never give its power away.

Where Congress does not make so great and sweeping a delegation of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman V. Southard, (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of procedure was a legislative function, he distinguished between important subject and mere details. Marshall wrote that “a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.

Marshall’s words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme held a delegation of authority unconstitutional. In case involving the certain of the National Recovery Administration called A.L.A. Schechter Poultry Corp. V. United States, (1935) 295 U.S. 495.Congress could not authorize the President to formulate codes of ‘fair competition’. It was held that Congress must set some standards governing the actions of executive officers. The court, however, has deemed that phrases such as “just and reasonable”, “public interest” and “public convenience” suffice.

Executive Powers in USA:

Executive power is vested in the President. The principal responsibility of the President is to ‘take care that the laws be faithfully executed.” By using these words, the constitution does not require the President to personally enforce the law; rather, officers subordinate to the President may perform such duties. It has been held that the constitution, by empowering him to ensure the faithful execution of laws, permits the President to terminate the appoint of an executive officer. Congress may not itself terminate such appointments, except by impeachment, or restrict the President’s power to do the same. Nevertheless, the Presidents control does not extend to non-executive agencies. It was held that bodies such as the War Claims Commission, the inter-state commerce Commission and the Federal Trade Commission-all quasi-judicial or quasi-legislative entities were not subject to the President’s whims.

Congress may not unilaterally restrain executive officials in the performance of their duties. In INS V. Chadha, (1983), the Supreme Court struck down a law which authorized either House of Congress to veto an executive decision made by the Attorney general. Further rulings clarified the case; even both Houses acting together cannot veto executive rulings. Nevertheless, legislation may prescribe regulations governing executive officers. Legislation differs from a unilateral congressional veto in that the letter is not presented to the President for his approval.

Judicial Power in USA:

Judicial power- the power to decide cases and controversies- is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the President with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a court’s judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called “constitutional courts.”

Congress may create ‘legislative courts,’ which frequently take the form of quasi-judicial agencies or commissions whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray’s Lesse. V. Hoboken Land & Improvement Co., (1856), the Supreme held that a legislative court may not decide “a suit at a common law, or in equity, or admiralty,” as such a suit is inherently judicial. Legislative courts may only adjudicate “public rights” questions (cases between the government and individual involving political determinations).

Doctrine of Checks and Balances:

Separation of power is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches “should not be so far separated as to have no constitutional control over each other.” The system of checks and balances is designated to allow each branch to restrain abuse by each other branch

“The Senate has the power to try impeachments. The compensations of executive officials and judges are determined by Congress, but Congress may not increase or diminish the compensation of a President, or diminish the compensation of a judge, during his tern in his office. Congress determines its own member’s emoluments as well, but the Twenty-seventh Amendment precludes an increase in congressional salary from taking effect until after the next biennial congressional election.

The House of Representatives has the power to impeach both executive officials and judges; the Senate tries all impeachments. The Senators and Representatives are not considered civil officers: they are not subject to impeachment (but either House may expel one of its members by a two-thirds vote). While a simple majority is sufficient to impeach in the House of Representatives, a two-thirds majority in the Senate is necessary for conviction. Removal from office upon conviction is automatic. The Senate may impose the further punishment of barring the convict from ever holding an office under the United States. No punishment other than removal from office and prohibition from holding future office is permitted in impeachment trials, but convicts remain liable to regular criminal proceedings and punishment thereafter.

Congress exercises a check over the composition of the executive branch. When no Presidential candidate has a majority in the Electoral College, the House of Representatives chooses between the top three candidates (under the Twelfth amendment). The Senate performs a similar function with regards to Vice Presidential elections; the Senates choice is limited to the two highest-placed candidates. When there is a vacancy in the office of Vice President, the President may fill it with the approval of both Houses of Congress. Furthermore, the Senate’s advice and consent is required for appointments of Cabinet Members, ambassadors and other senior executive officers. When the Senate is in recess, however, the President may make temporary appointments, called recess appointments, without any confirmation process.

Congress may also influence the composition of the judicial branch, as may the President. Congress may establish court inferior to the Supreme Court and set their jurisdiction. Furthermore, Congress may regulate the size of the courts. Judges are appointed by the President with the advice and consent of the Senate.”

“The president exercises a check over Congress through his power to veto bills, but Congress may override any veto except for a pocket veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. Finally the Vice President serves as President of the Senate.

The President, as noted above, appoints judges with the Senate’s advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either house of Congress, or even to acceptance by the recipient.

The President is the civilian commander in chief of the Army and Navy of the United States.”

“Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the constitution, but was envisioned by many of the Constitution’s framers. The Supreme Court established a precedent for judicial review in Marbury V. Madison, (1803) I Cranch 137. There were protests by some at this decision, borne chiefly of political expediency, but political realties in the particular case paradoxically restrained opposing views from asserting themselves. For this reason, president alone established the principle that a court may strike down a law it deems unconstitutional.

A common misperception is that the Supreme Court is the only court that may determine constitutionality; the power is exercised even by the inferior courts. But only Supreme Court decisions are binding across the nation. Decisions of a Court of appeals, for instance, are binding only in the circuit over which the court has jurisdiction.

The power to review the constitutionality of laws may be limited by Congress, which has the power to set the jurisdiction of the courts. The only constitutional limit on Congress’ power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, minister or consuls.

The chief justice presides in the Senate during a President’s impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the chief justice’s role in the regard is a limited one.”

Separation of Powers in United Kingdom

Although Montesquieu has based his doctrine of separation of powers taking into account the British Constitution, as a matter of fact at no point of time was this doctrine accepted in its strict sense in England. On the contrary, in reality, the theory of integration of powers has been adopted in England. Though the three powers are vested in three organs and each has its own peculiar features, it cannot be said that there is no ‘sharing out’ of the powers of the government. Thus the Lord Chancellor is the head of the judiciary, Chairman of the House of Lords (legislature), a member of the executive and often a member of the Cabinet. The judges exercise executive functions under the Trust Act and in supervision of wards of court and also legislative functions in making rules of courts regulating their own procedure. Members of the Cabinet are also members of the Legislature and are responsible to it and they play a very important part in legislative activities. Powers are conferred on them to make subordinate legislations and they also exercise judicial powers in different forms of administrative tribunals. The House of Commons is not exclusively concerned with legislative activities, as it exercises judicial powers also in cases of breach of its own privileges.

In England, there is nearly complete confuse of the executive and legislative powers. The King is the nominal executive head. The real executive power vests in the Cabinet with the Prime Minister are collectively responsible to the Hose of Commons. They remain in office so long as they enjoy the confidence of the House of Commons. The King is to exercise his powers on the advice of the Cabinet with the Prime Minister at the head and the advice is binding on him. The Prime Minister and other ministers are also members of the legislature. The legislature of Great Britain enjoys the judicial powers as well. The House of Lords (the upper house of legislature) is the highest court of appeal for Great Britain. The Cabinet through the King can dissolves the House of Commons. Cabinet through the King introduces the Bill in parliament. Certain Bills can only be introduced by cabinet through the King. It is the Cabinet which formulates ordinances through the King.

“The British system has both the judiciary and the legislature creating the law, it is equally difficult to see the separation of power. The study of the development of the constitution is as much a study of the history of the British Isles as it is a legal review. The British constitution is a reflection of the history of the British people. There have been many attempts to have a constitutional convention and produce a single written document, but the constitution is in essence rewritten every time Parliament passes a new piece of legislation. The sovereignty of Parliament has always remained paramount in the establishment of a separation of powers.”

Writers on the British Constitution seem to speak almost with one voice in denying that the separation of powers is a feature of the constitution. It has been typically commented that no writer of reputes would claim that it is a central features of the modern British Constitution. However, some leading judges seem to have begun to support the doctrine as a characteristic of British Constitution. Lord Scarman remarked in a case that ‘the constitution’s separation of powers must be observed if judicial independent is not to be put at risk.’ Likewise, in M V. Home Office, (1993) 1 All ER 537, Lord Templeman said that, “parliament makes the law, the executive carries the law into effect and the judiciary enforces the law.” In Dupport Steels Ltd V. Sirs, (1980) 1 All ER 529, Lord Diplock also says that “the British Constitution, though largely unwritten is firmly based on the separation of powers.

Thus on one side of the spectrum there is distinguished judicial support for the view that British Constitution is firmly based on the separation of powers but on the other side, there is strong weight of academic judgment which is predominantly to the opposite effect. However, it is to be emphasized here that recent academic judgment is also becoming more sympathetic to the applicability of the doctrine. Hilaire Barnett says that “separation of powers together with the rule of law and Parliamentary Supremacy rums like a thread throughout the constitution of the United Kingdom (UK).

There is no denying the fact that the separation of power lies with the doctrine of allotment of supremacy within the parliamentary bodies of the executive, the legislature and the Judiciary. The very concepts come down with a clear indication of borderline differentiating the functions among the institutions as stated. In this context, in setting up the separation of power within the jurisdiction, none should exercise excessive power in order to corrupt their discretionary role. It is evident that many jurists focus variety of opinions on the doctrine of power-separation from where the most significant perceptions can be accomplished from Baron Charles Montesquieu a French author in De L’ Esprit it des Lais (1748). In this phenomenon he derogatively envisaged the three main parts of the government like the Executive, the legislative and the Judiciary. He focuses the significance of the relevant functions of the department in the area of power separation. In regard to the idea as envisaged in the doctrine of power separation, John Locke has set out various theories which have been promulgated in the history of good governance in the U.K.

The Executive in UK:

It is the branch of a state mechanism which formulates and implements the policy to run the country which becomes the part and parcel of the separations of power. It uniquely deals with the formulation of policies, plans, distraction, rules, regulation in relation to overall government spending like finance, accounts, budget, education, foreign policies in international affairs, setting up trade linkage with other foreign countries of the world. It comprises of Member of Parliament, House of Commons, and selection criteria of House of Lords. The Executive department focuses its action plan relevant to the affairs of the parliament.

The Legislative in UK:

This department is charged with the responsibility of executing legislation wherein the UK legislature, it is known as ‘Parliament’ which comprises of three elements such as the Queen, the House of Lords and the House of Commons. The members of the House of Commons are elected on the basis of selection criteria as reflected in parliamentary voting system virtually.

The Judiciary in UK:

This branch of state is responsible for adjudication of deputies and development of Common Law. This department relates to Legislative and other to set up a smooth administration ideally. The primary doctrine of separation of power has been promulgated by the Legislation department which authorizes others to be in operative in case of power authentication as well power allocation.

In the absence of a written constitution, there is no formal separation of powers in the United Kingdom. No Act of Parliament may be held unconstitutional on the ground that it seeks to confer power in breach of the doctrine. While the functions of legislative and executive are closely inter-related, and ministers are members of both, the two institutions parliament and government are distinct from each other. The formal process of legislation is different from the day-to-day conduct of government, just as the legal effect of an Act of Parliament differs from that of an executive decision. Practical necessity demands a large measure of delegation by Parliament to the executive of power to legislate. The independence of the judiciary is maintained, but many disputes which arises out of the process of government are entrusted not to the courts but to administrative tribunal: these tribunals are expected to observe the essentials of fair judicial procedure.

The effect of British membership of the European community’s is that the organs of the communities may now exercise legislative, executive and judicial powers in respect of the United Kingdom. While judicial powers are exercisable by the European Court, whose independence is guaranteed, legislative authority is vested in the council of Ministers, representing the governments of the member’s state. But in general this authority is not exercised except after extensive preparatory work by the Commission, and after consultation with the European Parliament. Constitutional experience at a national level suggests that the excessive concentration of power in any single organ of government is a greater danger to liberty than departures from a formal separation of powers.

While the classification of the powers of government into legislative, executive and judicial powers involves many conceptual difficulties (for example, no sharp boundary can be drawn between judicial and administrative functions, or between legislation and administration), within a system of government based on law it remains important to distinguish in constitutional structure between the primary functions of law making, law executing and law adjudicating. If these distinctions are abandoned, the concept of law itself can scarcely survive.

Separation of Powers in India

On a casual glance at the provisions of the Constitution of India, one may be inclined to say that the doctrine of separation of powers is accepted in India. According to Article 53(1) of the Constitution of India, the executive powers are with the President, the legislative powers with the Parliament, and the judicial powers with the judiciary (the Supreme Court, High Courts and subordinate courts). The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament is competent to make any law subject to the provisions of the Constitution and there is no other limitation on its legislative power. It can amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect. Parliament has also inherited all the powers, privileges and immunities of the British House of Commons. Similarly, the judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or by the legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by Parliament or legislature as ultra virus or unconstitutional. Taking into account these factors, some jurists are of the opinion that the doctrine of separation of powers has been accepted in the Constitution of India and is a part of the basic structure of the Constitution.Separation of functions is not confined to the doctrine of separation of powers. It is a part of essential structure of any developed legal system. In every democratic society, the process of administration, legislation and adjudication are more clearly distinct than in a totalitarian society. In Kartar Singh V. State of Punjab, K. Ramaswamy, J. stated: “It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.” In Golok Nath V. State of Punjab, Subba Rao, C.J. observed: “The Constitution brings into existence different constitutional entities, namely, the Union, the States, and the Union Territories. It creates three major instruments of power, namely, the legislature, the executive and the judiciary. It demarcates their jurisdiction minutely and accepts them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.

But if we study the constitutional provisions carefully, it is clear that the doctrine of separation of powers has not been accepted in India in its strict sense. There is no provision in the Constitution itself regarding the division of functions of the government and the exercise thereof. Though, under Articles 53(1) and 154(1), the executive power of the Union and of the states is vested in the President and the governors respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ. According to Article 123 and 356 of the Constitution of India, the President has wide legislative powers. He can issue Ordinance, make laws for a State after the State Legislature is dissolved, adopt the laws or make necessary modifications and the exercise of this legislative power is immune from judicial review. He performs judicial functions also. According to Article 124(2-A), 217(3) of the Constitution of India, he decided disputes regarding the age of a Judge of a High Court or the Supreme Court for the purpose of retiring him and according to Article 103 of the Constitution of India he decides the cases of disqualification of members of any House of Parliament. According to this Article if any question arises (a) as to whether a member of either House of Parliament has become subject to any of the disqualification mentioned in clause (i) of Article 102 of the Constitution of India, or (b) as to whether a person, found guilty of a corrupt practice at an election to a House of Parliament under any law made by Parliament, shall be disqualified for being chosen as, and for being, a member of either House of Parliament, or of a House of the Legislature of a State, or as to the period for which he shall be so disqualified, or as to the removal of, or the reduction of the period of such disqualification. The question shall be referred for the decision of the President and his decision shall be final. But before giving any decision on any such question, the President shall consult the Election Commission and the Election Commission may, for this purpose, make such enquiry as it thinks fit. Similar power is also vested with the President to take a decision on question as to disqualification of a member of a House of the Legislature of a State, under 192 of the Constitution of India.

Likewise, Parliament exercises legislative functions and is competent to make any law not inconsistent with the provisions of the Constitution; many legislative functions are delegated to the executive. In certain matters, Parliament exercises judicial functions also. Thus, according to Article 105 of the Constitution of India, it can decide the question of breach of its privilege and, if proved, can punish the person concerned. In case of impeachment of the President, one House acts as a prosecutor and the other Hose investigates the charges and decides whether they were proved or not. The latter is a purely judicial function. On the other hand, many powers which are strictly judicial have been excluded from the preview of Courts.

Though judiciary exercises all judicial powers, at the same time, it exercises certain executive or administrative functions also. According to Article 227 of the Constitution of India, the High Court has supervisory powers over all subordinate courts and tribunals and also power to transfer cases. High Courts and the Supreme Court have legislative powers also and they frame rules regulating their own procedure for the conduct and disposal of cases.

The President of India is the nominal executive head. The real executive power has been vested in the Council of Ministers with the Prime Ministers at the head. According to Article 74 of the Constitution of India, the President is to exercise his powers and discharge his functions with the aid and advice of the Council of Ministers with the Prime Ministers at the head and usually the advice is binding on him. The President may require the Council of Ministers to reconsider such advice and he shall act in accordance with the advice tendered after such reconsideration. According to Article 85 of the Constitution of India, the House of people can be dissolved by the President. Article 86 of the Constitution of India ensures that, the President may address either House of Parliament or both Houses assembled together. According to Article 111 of the Constitution of India, A bill becomes an Act only when the President gives his assent to it.

Certain bills cannot be introduced in Parliament, unless the recommendation of the President has been received. For example, for the introduction of the following bills in Parliament, prior recommendation of the President is necessary-

According to Article 117(1) of the Constitution of India, for the introduction of money bills and amendment thereto, the prior recommendation of the President is necessary. However, such recommendation is not required for moving an amendment making provision for the reduction or abolition of any tax.

According to Article 3 of the Constitution of India, for the introduction of a Bill relating to formation of new States or alteration of areas, boundaries or names of existing States, the prior recommendation of the President is necessary.

According to Article 274, prior recommendation of the President is required for the recommendation of a Bill or amendment affecting taxation in which States are interested.

According to Article 117(3), a Bill which if enacted and brought into operation would involve expenditure from the Consolidated Fund of India, shall not be passed by either House of Parliament, unless the president has recommended to that House for the consideration of the Bill.

The powers of the President are, in practice, are exercised by the Council of Ministers with the Prime Minister at the head. According to Article 75(3) of the Constitution of India, the Council of Ministers including the Prime Minister is collectively responsible to the House of the people. A minister is required to be a member of either House of Parliament. According to Article 75(5), a Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. The members of the Council of Ministers including the Prime Minister, thus, remain in office so long as they enjoy the confidence of the House of people. According to Article 61, the President may be impeached by Parliament. Various provisions have been incorporated with the object to establish an independent judiciary. According to Article125 and 221, the judges of the Supreme Court and High Courts are paid such salaries as may be determined by Parliament by law and until the provision in that behalf is so made, such salaries are specified in the second schedule of the Constitution. The salaries and allowances of the Judges of the Supreme Court are charged upon the Consolidated Fund of the State and they are not notable. According to Article 217, neither the privileges nor the allowances of a judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantages after his appointment except in the case of the proclamation of financial emergency under Article 360. Article 124(2) makes provisions with respect to the appointment of the judges of the Supreme Court. It provides that every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose. In the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. However, the President is not bound to act on the advice of the judge or Chief Justice. Actually the President acts on the advice of the cabinet and consequently, the cabinet plays the vital role in the appointment of the judges. However, the President is not bound to act in accordance with the consultation. The judges of the Supreme Court and of the High Court may be removed from the office by the legislature. The judiciary has power to enforce and interpret laws and if they are found in violation of any provision of the Constitution, it can declare them unconstitutional, and therefore, void. It can declare the executive action void if it is found against any provisions of the Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the executive.

The Constitution marks off the sphere of action of each governmental leave and lays down scheme of distribution of powers. But the Indian Parliament is not supreme in matter of legislation as the British Parliament. The president of India has legislative powers. He also performs his judicial function. The High Court in certain matters performs administrative functions. They can make rules and therefore have legislative function. The Supreme Court of India in a case of R.I. Kapur V. State of Punjab, (1955), observed that, “the Indian Constitution has not indeed recognized the doctrine of separation powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial function in a limited way. The executive government, however, can never go against the provisions of the Constitution or of any law.

Thus, the three organs of the government are not separate. Actually the complete demarcation of the functions of these three organs of the government is not possible. Even Montesquieu did not mean that the legislature and executive ought to have no influence or control over the acts of each other, but only that the neither should exercise whole power of the other.

Thus, the doctrine of separation of powers is not accepted fully in the Constitution of India, and we agree with the observations of Justice Mukherjea in Ram Jawaya V. State of Punjab, AIR 1955 SC 549: (1955) 2 SCC 225. “The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.

The chief Justice S.R. Das of the Supreme Court of India in Ram Krishna Dalmia V. Justice S.R. Tendolkar, AIR (1958) SC 538, very beautifully clarified the working of the doctrine of separation of powers in India in the following expression: “The elaborate discussion of the American authorities founded on the categorical separation of powers expressly provided by, and under, the American Constitution, appears to us wholly inappropriate and unnecessary, we need to express any opinion on the question whether, even in the absence of a specific provision for separation of powers in our Constitution, such as there in under the American Constitution, some such division of powers, legislative, executive and judicial is nevertheless implicit in our Constitution.

In the case of Asif Hameed V. State of J. & K., AIR (1989) SC 1899, the Supreme Court has held that the powers and functions of the different organs of the State have been clearly defined in the Constitution and no organ can usurp the functioned assigned to the other organs. All the three organs of the State are required to function within their own spheres demarcated under the Constitution of India. The Court has wide power of judicial review but the court exercises this power under the self-imposed restrictions. While exercising this power it is always kept in mind that it is not a appellate authority. It’s entirely within the domain of the executive to decide whether or not to introduce a particular legislation. The court cannot direct the executive or the legislature to introduce legislation.

In the case of M.P. Oil Extraction V. State of M.P., AIR (1997) SC 592, the court was held that the policy decision in the domain in the executive authority of the State and court should not question the efficacy or otherwise or rule policy so long as it does not offend and provision of the statute of the Constitution of India. The Court has made it clear that all the three organs of the government have supremacy in their respective field and this is to be emphasized. The power of the judicial review of the legislature and executive action must be kept within the bounds of the Constitutional scheme. The court has observed that the democratic set up cannot function properly unless each of the three organs appreciates the need for mutual respect and supremacy in their respective fields.

In State of Bihar V. Bihar distillery Ltd., AIR (1997) SC 1511, the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislative process and must accord due regard and deference to it. The legislative and executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the government. The concept of checks and balance is inherent in the scheme. This scheme is a part of the basic structure of the Indian Constitution. Thus, the court has held that the doctrine of separation of power forms the part of the basic structure of the Constitution and therefore it cannot be abrogated or destroyed even by constitutional amendment in accordance with Article 368. Thus, doctrine of separation of powers has been adopted under the constitution of India in a broad sense. The doctrine of separation of power prevents concentration of powers anyone of the three organs of the government. It also prevents one organ form making encroachments upon the functions of the other organs. One organ cannot take the functions assigned to other organs. For example, Parliament has been given power to make law. This power cannot be exercised by the judiciary. Similarly, judiciary has been given power to decide cases. This power cannot be exercised by Parliament. The executive organ of the government has power and function to execute the laws. This power cannot be by the other two organs of the government. If the legislative power is delegated be the legislature to the executive, it must lay down the legislative policy and provide a standard to guide the delegate. The essential legislative functions entrusted to the legislature by the Constitution cannot be delegated to the executive or administrative or any other authority. The doctrine of separation powers should not be taken in this sense and in this sense exists in the Constitution of India and forms the part of the basic structure of the Constitution of India.

It is to be noted that the doctrine of separation of powers should not be taken to mean that the executive and the legislature cannot be directed by the judiciary to discharge their functions if they are found inactive in discharging of the function assigned to them by the Constitution. The Supreme Court has been made the guardian and protector of the Constitution and therefore it can direct the legislature and executive to discharge their functions properly. It is the function of the legislature to enact law and of the executive to implement the law and if they do not perform their functions properly, it is not the power but the duty of the Supreme Court to compel them to discharge their functions properly. If such a direction is issued by the Supreme Court against the executive or legislature, it cannot be said that it is against the doctrine of separation of power. The Judiciary in India, in addition to the judicial function, has been assigned the functioning to see that the Constitution is not violated by anybody or authority including the executive and legislature. For the maintenance of rule of law in the country it is necessary that each organ of the government performs its functions properly. If the legislature does not make the law or the executive does not execute the law, e.g., does not arrest the criminals or does not collect evidence against the criminals, there will be complete death of rule of law which is necessary for the very existence of the society.

Separation OF Powers IN Bangladesh

If we analyze and evaluate the theory of separation powers in our national context, then we understand that the doctrine of separation of powers has itself been influenced by, and has influenced, the growth of Administrative Law in Bangladesh.

Regarding appointments of persons to subordinate courts, Article- 115 of the Constitution of Bangladesh says- Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in that behalf.

With regard to the appointment of persons to offices in the judicial functions, it was, among other, provided in the original Article 115 that the President would make the appointment but in case of District judges the appointment would be made on the recommendation of the Supreme Court and in relation to appointments of persons to subordinate courts have been taken away clearly concentrating the same to the President himself.

Provision relating to control and discipline of subordinate courts is given in Article- 116 of the Constitution of Bangladesh. This Article says- The control (including the power of positing, promotion and grant of leave) and discipline of persons employed in the judicial services and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.

The Constitution of Bangladesh vests the executive power of the Republic in the executive and the legislative power of the Republic in Parliament. Though there is no specific vesting of the judicial power of the Republic, it is vested in the judiciary. It was held in the case of Mujibur Rahman V. Bangladesh. 44 DLR (AD) 111. The divisions of power are not, however, absolute. The executive can legislate under certain circumstances, and in fact, Parliament cannot make any law relating to the appointment of judicial officers and Magistrates exercising judicial functions, which has to be provided for by the President. It was held in the case of Secretary, Ministry of Finance V. Masdar Hossain, and 2000 BLD (AD) 104. On the other hand, Parliament can cause a fall of the executive government and impeach the President. Parliamentary Standing Committees can review the enforcement of laws by the Ministries and propose measures for such enforcement and in relation to any matter referred to it by Parliament as a matter of public importance investigate or inquire into the activities or administration of the Ministries. While the judiciary has the legislative power to make certain rules, Parliament can adjudicate certain disputes; it has power to enforce its own privileges and to punish those who offend against them. This may in certain situations bring it in conflict with the courts.

Article 22 of the Constitution of Bangladesh emphasizes independent judiciary by way of separating the same from the executive organ of the state. This Article provides that the state shall ensure the separation of the judiciary from the executive organ of state. This principle involves two consequences first, that a Judge or Magistrate who tries a casa must not be in any manner connected with the prosecution, or interested in the prosecution. Second, that he must not be in direct administrative subordination to anyone connected with the prosecution. Quite clearly it is impossible for a judge to take a wholly independent view of the case he is trying if he feels himself to any extent interested in or responsible for the success of one side or the other. This is the first aspect. It is equally impossible for him to take an independent view of the case before him if he knows that his posting, promotion, and prospects generally depend on his pleasing the executive head. Thus the separation of functions means and involves the elimination of these two evils.

“During the British days, there was a demand for the separation of the judiciary from the executive and article 22 of the Constitution of Bangladesh meets that demand. But very little has been done by the state in this count in practice. The deputy Commissioner who is the chief executive in the district can arrest and prosecute a person. He also acts as a judge and tries criminal cases. It is, therefore, generally contended that such a practice is not in accordance with the theory of separation of powers.

So, in view of the foregoing, it may be concluded that concentration of judicial powers to the executive, i.e., to the President depriving the Supreme Court and also concentration of the executive and judicial powers in one person, i.e., in the hand of Deputy Commissioner is obviously contrary to the theory of separation of powers.

On the other hand, as parliamentary form of government exists in Bangladesh where the executive is accountable to the legislature for its actions and 90% of the total number of ministers is required to be Parliament members it is convincing that the Constitution of Bangladesh has not accepted the theory of separation of powers in rigid form and no separation of powers in the strict sense of the term exists in Bangladesh. Indeed what exists in Bangladesh are-?

Organic separation as distinct from personal separation;

Partial union; and

Mutual interaction between the organs.

“What the Constitution has done can very well be described as an assignment or distribution of the power of the Republic to the three organs of the government and it provides for separation of powers in the sense that no one organ can transgress the limit set by the constitution or encroach upon the powers assigned to the other organs. The result is that unless the Constitution has expressly provided otherwise, no one organ can wield the powers of the other organs. Thus in the name of interpretation of the Constitution and the laws, the judiciary cannot create a new law or amend and existing law, which will be offensive as a judicial legislation. Nor can the judiciary give direction to Parliament to make laws or to the President to make rules. The Appellate Division held that when there is a Constitutional deviation and Constitutional arrangements have been interfered with and altered by Parliament by enacting laws and by the government by issuing various orders, the higher judiciary is within its jurisdiction to bring back Parliament and the executive from Constitutional derailment and give necessary direction to follow the Constitutional course by making or amending laws or rules. It is submitted that when there is a Constitutional deviation in legislative measures, the court can declare such legislative measures to be ultra vires, but cannot give a direction to repeal or modify it. It may be noted that Article 112 of the Constitution of Bangladesh stipulates that all authorities, executive and judicial (but not legislative), shall act in aid of the Supreme Court. Parliament may amend a law retrospectively within certain limits so as to destroy the foundation on which a judicial decision is based, but it cannot set aside a judgment of a court or declare it to be invalid as it will be void as legislative judgment.

Comparative Analysis on the Doctrine of Separation of Powers:

Of the various controversies between Common Law and Civil Law systems, the important one is comparative studies is that of administrative law; specially of the doctrine of separation powers, which is all its forms and purposes, is concerned with the determination of the nature, powers and functions of the state and its administrative officials in relation to its citizens.

It is generally accepted that there are three main categories of governmental functions, which is the legislative, the executive and the judicial. So the question arises: what should be the proper relation between these organs, whether the three powers should be exercised by the same person or a body of persons or should be entrusted to separate persons. The separation of powers tries to answer this question.     The idea of this separation of powers is traceable to Aristotle. And we also find traces of the idea of separation of powers in the writings of Polybious and Cicero. Jean Bodin also advocated separation of powers. But the writing of Locke and Montesquieu gave the theory of separation of powers a base on which modern attempts to distinguish between legislative, executive and judicial power is grounded.          The doctrine of separation powers not received much acceptance in any country. Governmental powers are co-ordinated by the effective part of the executive, the Council of Ministers or Cabinet, which is crated by the legislature, but in fact controls the legislature in which its members sit. In some countries the executive is made responsible to the legislature. In totalitarian countries the executive has complete domination over the legislature as also the judiciary. In democratic countries this doctrine has received much application in securing the independence of judiciary from the control of the executive.

In England, separation of powers is found in the existence of judicial supremacy since the establishment of Parliament as supreme maker of law and in the independent status of English Judges. The chief executive, the king is made subject to the law of Parliament or found by the courts. Thus in British Constitution the Parliament is the supreme legislative authority, and has full control over the executive. The co-ordination between the Parliament, i.e., the legislature and the executive is secured through the cabinet, which is collectively responsible to the Parliament. The doctrine of separation of powers is found applicable in British Constitution in theory as the legislative, executive and judicial functions are found to be vested in different bodies, namely the Parliament, the Court and the Cabinet respectively, but in practice the doctrine has little application. The British Cabinet system joins the executive and legislative powers, and the members of the cabinet can influence and control the actions of the Parliament. In the modern age, the functions of the government under English law are classified as legislative, executive or administrative, judicial and ministerial. Parliament may vest in any public authority a combination of functions comprised within each of these classes. The scope of judicial review of administrative action and the remedies available to persons aggrieved depend upon the appropriate classification of a statutory function. No attempt has however been in English law to formulate definitions that will be valid for all purposes. It has almost been left entirely to the courts, and where a definition formulated by the courts for a particular purpose, they have shown no hesitation in disregarding it and adopting another definition, resulting which, the term used to characterize the four classes of statutory functions are riddled with ambiguities.

The American Constitution expressly vests the federal executive power in the President, the federal legislative power in Congress and the federal judicial power in the Supreme Court of U.S.A. But the President may veto the measures taken by congress. Presidential veto, however, may be overridden by a two-thirds vote of both Houses. The judges though appointed for life may be removed by impeachment. The three organs of the government are inter-related and they act as checks on each other. It is said that the separation of powers is practiced in United States rather than in England. It is in the United States that there is a real division of powers between the three organs and strict adherence to the doctrine of separation of powers. The United States Supreme Court in Springer V. Govt. of Philippine Islands, said that the doctrine of separation of power though not expressly provided for in most American Constitution, is implicit in all, as a conclusion logically following from the separation of three departments. But in United States also this equilibrium between the three organs have been disturbed later. The power of executive has growth much at the expense of the other two organs of the government.

The difference between the English system and the American system lies in the fact that in UK, the judiciary has no power to override the will of Parliament expressed in statute from, since no Act of Parliament can be declared inoperative. Inconvenient decisions of the court can be reversed by retrospective legislation, if need be, whereas in America the Supreme Court’s interpretation of the constitution cannot be altered by an act of Congress, but only by the special machinery for securing amendments to the Constitution. The most apt description of the difference between the Presidential system and the Cabinet system, which is due to the adherence on the part of the framers of the United States Constitution to the doctrine of separation of powers, is given in the following extract from the pen of the Earl, of Balfour in Bagehot’s, “The English Constitution”.

Under the Presidential system the effective head of the national administration is elected for a fixed term. He is practically irremovable. Even if he is proved to be inefficient, even if he becomes unpopular, even if his policy is unacceptable to his countrymen, he and his methods must be endured until the moment comes for a new election. He is aided by Ministers, who, however able and distinguished have no independent political status, have probably had no Congressional training, and are by law precluded from obtaining any during their term office.

Under the Cabinet System everything in different. The head of the administration, commonly called the Prime Minister (though he has no statutory position), is selected for the place on the ground that he is the Statesman based qualified to secure a majority in the House of Commons. He retains it only so long as that support is forthcoming, he is the head of his party. He must be a member of one or other of the two Houses of Houses of Parliament; and he must competent to lead the House to which he belongs. While the Cabinet Ministers of a President are merely his officials, the Prime Minister is Primus inter pares in a cabinet of which (according to peace time practice) every member must, like himself, have had some Parliamentary experience and gained some Parliamentary reputation. The President’s powers are defined by the Constitution, and for their exercise within the law he is responsible to no man. The Prime Minister and his Cabinet, on the other hand, are restrained by no written Constitution; but they are faced by critics and rivals whose position, though entirely unofficial is as constitutional as their own; they are subject to a perpetual stream of unfriendly questions, to which they must make public response, and they may at any moment be dismissed from power by a hostile vote.

One thing is found in the English, American and Indian Constitution is that their judiciary is totally independent. As we know, an independent judiciary is the sine qua non for the protection and promotion of the rights of the people. In order to make the judiciary really effective, the judiciary must be independent. An independent judiciary is required for establishing good governance and justice. The separation of the judiciary from the executive is a pre-requisite for judicial independence. If the judiciary does not work independently, anarchy will prevail.

A sound judicial system keeps equilibrium of a society. If the judicial strength becomes weak, the expected democracy will not work and the social fabric will be broken down. No interference on the independence of judiciary would be expected.

In Bangladesh through the landmark event on 1^st November, 2007 the long awaiting separation of judiciary has been accomplished and the main objective Article 22 of the Constitution of Bangladesh has been achieved. But it is a matter of great regret that though the judiciary is separated, it is still now under the control of Ministry of Finance and Ministry of Establishment. For this reason, we cannot say that judiciary is totally independent.

So, if it is possible, unlike USA, UK and India, our judiciary must also be kept fully separated from the executive and for the dimension changes must be brought in our constitution.

Thus, on the whole, the doctrine of separation of powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have “a government of law rather than of official will or whim”. 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. Again, almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the government, viz., legislature and executive.

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. It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. There is no liberty, if the judicial power be not separated from the legislative and the executive.

Judicial Independence is a sine qua non in a democratic society proclaiming the rule of law. For, the judiciary is charged with the ultimate decision over life, liberty, freedom, rights, duties and property of citizens. Therefore, in all countries cases, sometimes civil, but more frequently criminal, arise which involve political issues and excite party feeling. It is than that the courage and uprightness of the judges become supremely valuable to the nation commanding respect for the exposition of the law which they have to deliver. In a parliamentary system of government where the cabinet is comprised of the leaders of the ruling party who command majority in parliament, the problem of judicial independence from the executive is very significant. The importance of an independent judiciary says Lord Hailsham, “is not less but all the greater when judges have to serve under an all powerful parliament dominated by a party cabinet, and concentrating all the powers, and more than all powers, of the executive and legislature combined in one coherent complex.

However, in a free society professing the rule of law, the necessity of an independent judiciary is keenly felt in order to enforce fundamental rights, to secure the people against the usurpations of the executive and legislative departments and to earn public confidence in judicial impartiality.

Conclusion:

When evaluating the British Constitution it would be unwise to ignore the history by which it came to be. It should firstly be noted that these constitutional arrangements were established one hundred years before Montesquieu wrote The Spirit of Laws, in a time of tension between Parliament and the Crown. Although Montesquieu was absent, there were no lack eminent thinkers such as Thomas Hobbes and John Locke.

The division of governmental powers into legislative, executive and judicial is not an extract classification. It is abstract and general and is true in theory only, but in actual practice complete is impossible. There are many powers which may be assigned to one department or delegated to a commission or agency created for the purpose of administering a law or a regulation. In fact the complex relations and conditions created by the modern society and business have produced many situations which can be adequately met only by investing in the same administrative offices or bodies, powers inherently partaking at least to some extent, of any two or of all three of the departments. For example many commissions and officers exercise both administrative and quasi-judicial functions. The Parliament or the legislature neither may nor create these instrumentalities, but it may delegate to them the power of making subordinate rules and the additional power of determining facts to which the policy of the legislature shall apply. Such regulations are valid only when subordinate to a legislative policy, sufficiently defined by statute and when found to be within the framework of such policy. But a delegation of legislative power to an administrative officer is not valid when the public good only is fixed as a standard for the officer’s actions. The true meaning of the theory of separation of powers as it has been modified by practice is that the whole power of two or more departments shall not and should not be lodged in the same hands and that each department shall have and exercise such inherent powers as shall protect it is its performance of its major as well as its minor duties.

The United States government accepts that the evolution of the United States Constitution has resulted in a singular blending of powers instead of a separation as provided by the doctrine of Montesquieu. The blending of powers in United States has enabled the Constitution to grow and expand to meet new and unforeseen conditions of government. But they have adopted the following plan for checks and balances:

• that the major governmental power should not be confined to one person or one body, but should be given to separate departments;
• that each should be independent of the other in its own sphere;
• that each department should be forbidden to encroach upon the rights of the others; and
• that each department should act as a check upon the exercise of governmental powers of the others.

It is of vital importance to point out here that although by force of circumstances administrative law has inevitably grown in Bangladesh but the separation doctrine, unlike USA, has generated an attitude of indifferent towards it, as generated in England under the spell of the Dicean concept of the ‘Rule of Law’. Many people of our country criticise the growth of administrative process as doing violence to the concept of separation of powers. Hence, this theory has been characterised in the country as a principal conceptual barrier to the changes and growth of administrative law in Bangladesh.

Had the doctrine of separation of powers been followed rigidly in any country, the development of modern administrative agencies would have been an impossibility. The equilibrium between the three organs of the government has been disturbed. The power of executive has grown and is still growing at the expense of the legislative and judicial branches. The centre in a Federal country is going stronger at he cost of the states. In the modern age it is also felt that if in a private life we are to organise a unit for the operation of an industry, it would hardly follow Montesquieu’s lines. The regulation of a modern industry cannot be adequately carried out under a rigid separation of powers. The agencies or other bodies coming into existence have to be given both legislative and judicial powers all the important agencies in a federal administration are vested with authority to promulgate rules and regulations having the force of law and also to render decisions adversely affecting the person or property of the individuals. And as such the administration has been made the repository of all the three types of powers. The administrator, who by order, by rule or by regulation extends the civil or

Criminal sanctions of the law to named parties, indulges in legislation. The administrator, who by rendering a decision affects rights and liberties of individuals, indulges in judiciary. The powers exercised by the administration can be compared to those possessed by the legislature and the courts. The regulatory and other important agencies have been granted all the three types of powers. They will issue a complaint against a private party for an alleged violation of the Act under which it operates, make investigation, hold a hearing and will judge the validity of the charge. It is said that the delegated legislation and adjudication have become in the modern age, the chief weapon in the administrative armories.