ASSIGNMENT

Assignment Topic: Separation Of Power

Course Name: Administrative Law

Course Code: LL.B.324

Submitted To: MD.Sadekur Rahman

Assistant Professor
Department Of Law
University Of Barishal

Submitted By: GROUP -02

Class Roll: (17 Law 011 - 17 Law 021)

3rd Year 2nd Semester

Submission Date: 16-02-2021

Md Asadullah

17law 011

Meaning of separation of powers and definition 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.

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.

Separation of powers is an organizational structure where responsibilities, authorities, and powers

are divided between groups rather than being centrally held.

Separation of powers is most closely associated with political systems, in which the legislative,
executive, and judicial powers of government are vested in separate bodies.

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.

The most well-known example of separation of powers is the tripartite system found in the United
States and the United Kingdom, in which there are three individual branches of government: the
executive branch, the legislative branch, and the judicial branch.

Historical Background of Separation of Powers

Zannati
17Law012

The separation of powers, also known as trias politica, was first developed in ancient Greece and
was widely used by the Roman Republic. The concept was the result of centuries of political and
philosophical development. This model divides the state into branches or estates with
independent powers and responsibilities. The usual consists of division into an executive, a
legislature, and a judiciary. After the fall of the Roman Empire, until the 18 th century, the dominant
form of governmental structure in Europe was concentrated power resting on the hereditary ruler.
The single exception to this was the development of Parliament in England in the 17 th century.

Aristotle
Aristotle was the first person to write about separation of powers. In his book entitled Politics,
he has described three agencies of government three agencies of government – the General
Assembly, the Public Officials, and the Judiciary.

John Locke
The theory of three branches of government re-emerged with John Locke’s Two Treatise of
Government (1689). He defined them as ‘legislative’, ‘executive’ and ‘federative’. He however did
not consider them as co-equals. According to him, legislative branch is supreme than the other
two. The other two namely the executive and federative functions were to be exercised by the
monarch. His model corresponded with the dual form of government existing in England at that
time – The Parliament and the Monarchy.

Montesquieu’s theory of separation of powers

Montesquieu was a French philosopher who is known for the theorization of the concept of
separation of powers in his book De L‘ Espirit des Lois (The Spirit of Laws), in 1748.
Montesquieu laid sown his theory largely based on the English system. He laid greater emphasis
on the political and natural liberty of a citizen. He explained the union of executive and legislative
power would lead to despotism of the executive. Similarly, he also explained that the union of
legislative power and the judiciary would not safeguard individuals against the state. Hence, he
explained that the human liberty can be safeguarded only if the concentration of powers in a
person or a group of persons could be avoided.
Montesquieu divided the government into legislative, executive and judicial functions. He
understood legislative power as an activity of declaring the general will of the state. He
apprehended the executive power as that of executing the public resolutions embodying the
general will of State. Similarly, he understood judicial power as the power of deciding civil and
criminal cases. Out of all, Montesquieu considered judicial power to be frightening as it has the
power to harm a subject’s life, liberty or property.
Though, Montesquieu is credited for the theory of separation of powers, he is criticized by some
that he completely misconstrued what he saw in England.

Separation of power in Ancient India

The roots of separation of power are also found in Vedas. Narad Smiriti has the very principle of
separation of power. In those days, Deewan was head of the Executive wing. Senapati
maintained law and order and Kaji was the judicial head. However, their positions were all
subordinate to a king, who was the supreme authority. King was the one who made laws and can
be compared to the present form of legislature. Hence, in ancient times also, one can find a
separation of powers and functions.

Steps for the Separation of Judiciary in Bangladesh: Pre-2007 Regime

The separation of the judiciary is a precondition for the independence of the judiciary, which is a
basic feature of the Constitution. If the judiciary can perform independently, the citizens’ rights can
never be endangered from any quarters and the judiciary will be respected as protector of citizens’
constitutional rights. But in order to implement the constitutional mandates regarding the
separation of judiciary, particularly the subordinate judiciary from the executive, the nation had to
wait about 36 years from its independence. In Bangladesh history, it is found that the first attempt
was taken in 1976 by a Law Committee of Justice Kamluddin Hossain, who made a
recommendation for the separation of the subordinate judiciary on the criminal side in three
stages. In 1990 the separation of the judiciary was one of the commitments in the manifesto of the
three-party alliance but no steps were taken by the governments of 1991 and 1996 except spoiling
their tenure. It was Masdar Hossain, a district judge along with another 441 judicial officers who
brought a writ petition in 1995 to the HCD, which is known as the Masdar Hossain case. In this
case the petitioners claimed inter alia: i. inclusion of judicial service in the name of BCS (Judicial)
under the Bangladesh Civil Services (Re-organization) Order, 1980 is ultra vires the Constitution;
ii. Chapter II of Part VI of the constitution has already separated the lower judiciary from executive
where necessary amendments of article 115 may be required for full separation; iii. judges of the
subordinate courts being presiding officers cannot be subject to the jurisdiction of the
administrative tribunal of the executive. The court gave a landmark judgment in 1997 declaring 12
historical directions, with a view to giving implementation of the separation of judiciary from the
executive. The AD of the SCB reversed the decision of the HCD upholding the 12 directions of the
HCD in 1999 in a reply to the appeal of the government:
“The Appellate Division directed the Government to implement its 12 point directives, including
for formation of separate Judicial Service Commission (JSC) to serve the appointment, promotion
and transfer of members of the judiciary in consultation with the SC. A further 12-point directive
called for a separate Judicial Service Pay Commission, amendment of the criminal procedure and
the new rules for the selection and discipline of members of the Judiciary.’’
Steps for the Implementation of the Directions of the Masdar Hossain Case and Post-2007
Regime
Finally, it was formally possible from 1st November 2007 for the separation of the judiciary to be
established by the then caretaker government, with a view to fulfilling the mandatory directions of
the Masdar Hossain judgment which is popularly known as the separation of powers case. It was
also said earlier that the famous case Masdar Hossain v Secretary, Ministry of Finance, plays a
vital role for establishing the independence of the judiciary in Bangladesh.45 The case also
reflects the separation of powers among the three organs of the government.46 The theory of
separation of powers was clearly reflected through the 12 directives in the Masdar Hossain case.
In order to meet the constitutional mandate under Article 22 of the Constitution and implement the
directions of Masdar Hossain’s judgment, the then caretaker government took the necessary
 steps to execute the directives of the Masdar case and ensure separation of the judiciary, enacting
four sets of rules and finally on paper the judiciary was separated from the executive on 1st
November 2007:
I. Bangladesh Judicial Service Commission Rules 2007
II. Bangladesh Judicial Service Pay Commission Rules 2007
III. Bangladesh Judicial Service Commission (Constitution of service, appointment on
the service and suspension, removal and dismissal from the service) Rules 2007
IV. Bangladesh Judicial Service (posting, promotion, grant of leave, control discipline
and other condition of service) Rules 2007

Sanjida Alam Anannya

17 Law 013

Importance of Separation of Powers

The doctrine of separation of powers in the strict sense is undesirable and impracticable and there
force, 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. Experience has always demonstrated that he has power in his hand is inclined to abuse it.
Executive, Legislative and Judicial power should not be united in the words of single person or body
of person, for such a combination would destroy liberty.

The most important aspect of the doctrine of separation of power is judicial independence from
administrative discretion. There is no liberty if the judicial power be not separated from the
legislative and executive when three organs are separated the executive, legislative and judiciary are
being free. When all organs are free, any kind of decision taking within a short time. Reducing
interfere with other department members, all organs are effectively and efficiently running

1) Legislative
2) Executive
3) Judiciary

These three organs of the government are closely related to one another because legislature makes
the law, the executive implements them and the judiciary interprets them. All of this are described
below:
Legislature: Legislature is a law making Branch of government. In all, most of the countries,
legislature is available for making laws. In democracy the importance of legislature is still more. For
law making most of the countries have two house of legislature, while few countries have one house.
Legislators can initial and rescind laws and is the only authority able to approve proposed law.
Although the constitution allow persons or agencies of the executive branch to propose law.

1) Lawmaking: Lawmaking is the first and foremost function of a legislature is to legislate to

make law. In ancient times, laws being used to be either derived from customs, traditions and
religious requirements or were issued by the kings as their commands. However, in the
contemporary era of democracy legislature is the chief source of law.
2) Deliberative functions: To deliberate upon matters of national importance, public issues,
problems and needs is an important function of a modern legislature.

3) Control over the executive: In parliamentary system of government, the legislature has the
power to remove the executive by passing a vote of no confidence or by rejecting a policy or
budget or law of executive.

4) Constituent Functions: For this purpose legislature has to pass special laws, called
amendments, in accordance with the procedure laid down in the constitution.

5) Electoral Functions: A legislature usually perform some electoral functions. The houses of
the parliament elect the president all elected MPs.

Influence of Legislature:- Article 115 of the constitution of Bangladesh says, In the judicial service
or as magistrate exercising judicial functions shall be made by president. To control and discipline
the subordinate court, “The article 116 Says, The control and discipline of the persons employed in
the judicial service and magistrate exercise judicial function shall vest in president.

Executive: The functions of the executive are depends on the government. In a dictatorship, the
function of the executive are different from those democracy. Separation of judiciary from the
executive constitutional article 22.

The following are the functions of executive

1) To run the administration: To run the day today administration in accordance with the
policies, laws, rules, regulations and decisions of the government is also the key responsibility
of the bureaucracy.
 2) To perform financial functions: They collect taxes and settled dispute involving recovery
of taxes. They play a vital role in preparing the budget and taxation proposal.

3) To perform democratic functions: The executive appoints diplomatic representatives to

foreign states and receives representative from them treaties and international conventions
are negotiated and concluded by the executive.

Influence of executive:- In Bangladesh, the party who has the majority in the parliament runs the
government and parliament members elects the president.

Judiciary:- Separation of judiciary from the executive constitutional article 22. It is a third important
administration of Organ of government. It mainly award punishment for the violation of the laws,
while the laws are made by the legislature and implemented by executive. The judiciary is essential
for maintaining peace and imparting justice and also for the enjoyment of fundamental rights.
The following are the functions of the judiciary

1) It interprets the laws: A number of cases are brought before the judges in whom the question
of the interpretation of law arises. In these case or matters the judge gives their decisions.

2) Protector of civil rights: People are given many rights by the state through the laws. The
court protect these rights.

3) Decide the cases: Many cases relating to the disputes between the citizens or between the
government and the citizens are brought before courts.

4) Advisory: The judiciary branch act as advisory body. The Supreme Court has given the rights
in the Constitution to render advice on legal matters.
The separation of judiciary in Bangladesh constitutions article 22, the separation
of judiciary from the executive organ but lawmaker of our country reduce the independence
of the judicial system.

Importance of separation of judiciary: The separation of judiciary is truly important for a

democratic country. The idea of separation of judiciary is referred to a situation in which the judicial
government acts as its own body free from interventions and influences from other branches of
government particularly the executive. The separation of the judiciary basically aims at ensuring
independence of judiciary. An independent judiciary is expected to work impartially and not under
any influence from ministers, parliament, political leaders, or any powerful person or association.

Jharna Das

17 Law 014

Separation of Powers in UK:

The doctrine of the separation of powers suggests that the principal institutions of state -
executive, Legislative and judiciary should be divided in person and in function in order to
safeguard liberties and guard against tyranny.
One of the earliest and clearest statements of the separation of powers was given by
Montesquieu in 1748:
When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty…there is no liberty if the power of judging is not
separated from the legislative and executive… there would be an end to everything, if the same
man or the same body… were to exercise those three powers.
In practice, many countries do not aim for a strict separation of powers, but opt for a compromise,
where some functions are shared between the institutions of state. In the UK, the powers of
Parliament, Government and courts are intertwined. In the UK, the major officers and institutions
have evolved to achieve balance between the Crown ( and more recently the Government) and
parliament. The system resembles a balance of powers more than formal separation of the three
branches, or what Walter Bagehot called a “fusion of powers” in the English Constitution.
Because of Parliamentary system of government, there are united legislature and executive for
the sake of expediency.

The institutions of state

In the UK, the executive comprises the Crown and the Government, including the Prime Minister
and Cabinet ministers. The legislature, Parliament, comprises the Crown, the House of
Commons and the House of Lords. The judiciary comprises the judges in the courts of law, those
who hold judicial office in tribunals and the lay Magistrates who staff the magistrate's courts.

1. Executive and Legislative :

The first element of separation is between executive and legislative.

The UK constitution is characterized by the blending of the executive and the legislative. Being a
parliamentary democracy the real executive comes from within the legislature.
 Firstly, the Sovereign who is at the head of the executive and who is a necessary part of
parliament.
Secondly, the Prime Minister and his cabinet members are at the same time members of
one or other House of Parliament.
British Parliament has four functions. Enactment of legislation is the main function. The
other three being the scrutiny of the activities of the executive, the control of finance and the
ventilation and redress of grievances.
Executive does legislative function. Parliament may delegate law making powers to the
executive.
There are checks and balances exercised by the executive and judiciary upon each other where
by law the meeting of parliament is depended on the will of the Sovereign who summons it and
dissolves it.When parliament is in session and a government has been formed, parliament, i.e.
House of Commons ultimately controls the government. At the same time, the executive controls
legislative by its majority.
In order to prevent the executive from controlling Parliament the House of Commons
(Disqualification) Act 1975 created limits on the number of salaried ministers who sit in the
Commons. Additionally, the legislative branch of government retains the formal power to
dismiss executive officers from office.

2. Executive and Judiciary :

The second element of separation is between the executive and the judiciary.
The Sovereign is the head of the executive is nominally involved in the administration of justice
but there is no real involvement.
There are checks and balances exercised by the Executive and Judiciary upon each other where
the judiciary checks the executive by reviewing its action, to decide whether they are lawful or
not.
The Judicial Committee of the Privy Council remains independent court, despite being
organizationally part of the executive. Before 2005, the office of Lord Chancellor was a bridge
between the institutions of the state. He was head of the judiciary with responsibility for the
appointment of judges, a member of the Cabinet and Speaker of the House of Lords. This Act
removed the judicial functions of the Lord Chancellor and now this post is filled by Lord Chief
Justice. He is no longer sits as speaker of the House of Lords.
Before the Constitutional Reform Act -2005, judicial appointments were made on the
recommendation of the Lord Chancellor who was a Government Minister. The legislation
established an independent Judicial Appointments Commission. Now the Commission
recommends candidates to the Lord Chancellor who have a limited power of veto. The Act gives
the Commission a specific statutory duty to encourage diversity in the range of persons available
for selection for appointments.
Until 2009, the Lords of Appeal in Ordinary ( the Law Lords) sat in the legislature as well as acting
as the highest appeal court in the UK. However, the Constitutional Reforms Act created a
separate Supreme Court, separated out the judicial role from the upper House.

3. Legislature and Judiciary :

 The third element of separation is between the legislature and judiciary.
The Sovereign who is a Constituent of parliament is also nominally involved in the administration
of justice but there is no real involvement. In the UK, judges are prohibited from standing for
election to parliament under the House of Commons(Disqualification) Act 1975.
Judges are expected to interpret legislation in line with the intention of parliament. Judges in the
higher courts have life tenure, which protests their independence and a resolution of both Houses
is needed to remove a High Court Judge from office, while judges at the lower levels can only be
removed after disciplinary proceedings.
Constitutionally, judges are subordinate to parliament and may not challenge the validity of
Acts of Parliament. Parliament provides by legislation for the court structure and for judiciary
office holding and so in a sense regulates and may check judiciary.

From this analysis, it can be said that, there is no absolute separation of powers in British
Constitution. Overlaps exit both in terms of the functions of the organs of state and the personnel
operating within them. The UK relies on a system of checks and balances to prevent against
abuse of power. It adopts the concept of Polybius mixed government.

Md.Jubayer Islam Sayem

17 Law 015

"Separation of power of United States of America""

Separation of power is a doctrine of constitutional law under which the three branches of
government :- Executive, Legislative and Judicial, which has separated and independent
powers.This system hepls to ensure that no one branch is more powerful than another.
The Legislative branch which makes the law, the executive branch which enforce the law
and the judicial branch which interprets the law.The United States federal government
and forty states devide their governments into these three branch. The United States form
of separation of power is associated with a system of checks and balances.This is
intended to make them accountable to each other.

#Legislative_Power

In the federal government, Article 1 of the United States Constitution establishes the
Legislative Branch, which consists of Congress.Congress has the sole power to legislate
for the United States. Under the nondelegation doctrine, Congress may not delegate its
lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in
the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item
veto" to the President, by powers vested in the government by the Constitution.
Where Congress does not make great and sweeping delegations 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 23 U.S. (10 Wet.) 1, 42 (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
rules of procedure was a legislative function, he distinguished between "important"
subjects and mere details. Marshall wrote that "a general provision may be made, and
power is 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 Court held a delegation of authority
unconstitutional. In a case involving the creation of the National Recovery Administration
called A.L.A. Schechter Poultry, 295 U.S. 495 (1935), 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_Power

Article 2 of the United States Constitution establishes the Executive Branch, which
consists of the President. The President approves and carries out the laws created by the
Legislative branches.
Executive power is vested, with exceptions and qualifications,[1] in the President. By law
(Section 2.) the president becomes the Commander in Chief of the Army and Navy, Militia
of several states when called into service, has power to make treaties and appointments
to office "with the Advice and Consent of the Senate," receive Ambassadors and Public
Ministers, and "take care that the laws be faithfully executed" (Section 3.) 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. The Constitution
empowers the president to ensure the faithful execution of the laws made by Congress
and approved by the President. Congress may itself terminate such appointments, by
impeachment, and restrict the president. Bodies such as the War Claims Commission
(created by the War Claims Act of 1948), the Interstate Commerce Commission, and the
Federal Trade Commission—all quasi-judicial—often have direct Congressional oversight.
#Judicial_Power

Article 3 of the United States Constitution establishes the Judicial Branch, which consists
of the United States Supreme Court. The Judicial Branch interprets the laws passed by
the Legislative Branch.
Article I and Article III tribunals, Judiciary of the United States, and Jurisdiction stripping
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 during good behavior 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 establish "legislative courts," which do not take the form of 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 Lessee v. Hoboken Land & Improvement
Co. (1856), the Supreme Court held that a legislative court may not decide "a suit at the
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
an individual and political determinations).

Amina
17 Law017
Checks and balances under US Constitution.
Checks and balances, principle of government under which the separate branches are
empowered to prevent actions by other branches and are introduced to share power.
Checks and balances are applied primarily in constitutional governments. They are of
fundamental importance triparty governments, such as that of the United states, which
separate powers among legislature, executive and judicial branches. What is the system
of US Government checks and balances? The constitution created three separate
branches of government: the legislative brance(Congress),the executive
branches(President),and the judicial branch(Supreme court).In order to make sure that
one branch didn’t become too powerful, the constitution has a checks and balances, that
enable each branch to keep others in the line. How does the systen checks and balances
keep power balanced between each branch.
Congress exercising powers over others: The compensation of executive officials and judges is
determined by congress, but congress may not diminish the compensation of a President or judge
during his term in office time, the house of Representative and Senate both have o pass the same
bill before it can become law. Congress can amend the constitution, which means they can
override supreme court decisions. The executive exercising power over others: The president has
the power to grant pardons and reprieves for crimes against the US except in an impeachment.
The president can also make treaties, but only with a two thirds agreement from the
senate.Furthermore,the president can appoint supreme court judges, but the senate must
approve these choice. The judiciary exercising powers over others: The Courts check both
executive and legislative branch through judicial review otherwise supreme court judges have the
power.
Md Razu Ahmed
Roll: 17 law018

Separation of power under the Bangladesh constitution

###Concept of the separation of power:

The concept of separation of power has played a major role in the formation of
constitution. The extent to which powers can be exercised should be separate and
distinct. The essence of the doctrine is that there should be ideally a clear demarcation in
function between the organs. Generally we have seen separation of power is one of the
debating and challenging where there are so many controversial issues against this
doctrine. Some said there must be strict separation of powers in the state, some body
argued no separation, there are fusion of powers. Many support the theory of cheeks and
balances. In general sense every state has the three wings, such as executive, legislature
and judiciary. They are interrelated to each other. Though peoples theoretically believe
there is separation of powers but practically impossible.

On the other hand according to Article 22, 26, 55, 65, 94(4), 107, 109 & 116A of the
Constitution of Bangladesh we can say that the doctrine of separation of power is well
established in Bangladesh constitution. Anchored by the Bangladesh Constitution first
three articles of the country, Legislative, Executive and the Judiciary (judicial) make up
our three branches of government i.e legislative body, executive body and judiciary body.
Now we analyse and evaluate the theory of separation of power in our national context:

##Executive exercising legislative power;

Executive can legislate in certain cases. As for example, Article 62(2) empowers the
president to regulate the raising and maintaining of defense services of Bangladesh and
of their reserves; the grant of commissions therein the appointment of Chiefs of staffs of
the defence services and their salaries and allowances as are not already subject to
existing law. Article 93(1) empowers the president to promulgate Ordinance if he is
satisfied that circumstances exist which render immediate action necessary and
parliament stands dissolved or is not in session. Article 115 authorizes the president to
appoint persons in the judicial service or magistrates exercising judicial functions in
accordance with rules made by him in that behalf. Article 113 makes the president
competent to make rules regulating the appointment and conditions of services of persons
in the service of the Republic until provision in that behalf is made by or under any law.

##Judiciary exercising legislative power:

Judiciary also has got some delegated authority in legislation. As per Article 107(1),
subject to any law made by parliament and with approval of the president, the Supreme
Court may make rules for regulating practice and procedure of each division of it and of
any court subordinate to it.

##Parliament exercising judicial power:

Parliament has some of judicial powers to the extent that it may expel any MP or order a
non-member to leave the precincts of People who obstructs its functioning. In such matter
the jurisdiction of the Court is ousted by Article 78(2). Parliament has also got an inherent
power of punishing its contempt.

###Conclusion:
distributing the essential business of government among three separate but
interdependent branches, the Constitutional Framers ensured that the principal powers of
the government, legislative, executive and judicial, were not concentrated in the hands of
any single branch. Allocating governmental authority among three separate branches also
prevented the formation of too strong a national government capable of overpowering the
individual state governments. The Separation of Powers, by which the executive,
legislative, and judicial branches are to be independent and not infringe upon each other’s
rights and duties, is one of the basic doctrines in the Bangladesh Constitution.

Antara Barai

17 law 019

Checks and balances ; what we have The system of checks and balances is an important part of
the Constitution. With checks and balances, each of the three branches of government can limit
the power of the others. This way, no one branch becomes too powerful. Each branch " checks
the power of the other branches to make sure that the power is balanced between them.

Check and balances under Bangladesh Constitution :

The doctrine of check and balance as it is reflected in our Constitution. The process of
how laws are is a good example of checks and balances in action.
These are--
The Parliament whipping the Executive :-
Parliament can cause the fall of the government as the Prime Minister and his cabinet is
collectively responsible to the Parliament and the Prime Minister holds office during the
pleasure of parliament. Parliament can also impeach or remove the President on grounds
of gross misconduct, physical or mental incapacity. Parliamentary standing committees
can review the enforcement of laws by ministers or investigate or inquire into the activities
of the ministries.

The Executive control over the Judiciary : President appoints the chief Justice and
other Judges of the supreme Court. The President may appoint a chief justice on a
temporary basis if circumstances so require. Article 98 has empowered the president to
appoint Additional Judges. The President is also empowered to remove a Judge of the
Supreme Court upon recommendation of the Supreme Judicial Council. This Supreme
judicial Council is called into action by the president.
As per Articles 114 and 115, the appointment, transfer, leave,terms and conditions etc of
the judicial officers belongs to the executive. However, in Article 116,there is a requirement
of consultation with the Supreme Court.

The Judiciary checking the Executive and legislative :-

Again when there is a constitutional deviation and constitutional arrangements have
been interfered with or altered by the parliament by enacting laws or by the executive by
issuing orders, it is within the jurisdiction of the judiciary to bring the parliament and
Executive back in tract. Even then the court can declare such legislature measures to be
ultra vires, but cannot give a direction to repeal or modify it.

The Executive Checking the parliament :

In many countries practising a parliamentary form of government of the westminster
model, Heads of states are Constituent parts of their respecting Parliaments,British
Parliament, for example, consists of the sovereign, the House of lords and the House of
commons,Parliaments of India and Pakistan are similarly constituted with the president
and two Houses.
There is, however, no express provision in Bangladesh Constitution for making the
president a
constitution part of parliament.
He is, however, invested with parliamentary and legislative functions similar to those
enjoyed by the Heads of states in Britain. Prime minister is the leader of the parliament.
President merely acts upon his advice. Some of parliamentary and legislative powers and
functions of the president are mentioned :

1. Parliament is summoned, prorogued and dissolved by the president in accordance

with the advice of the Prime minister.
2. The president addresses the parliament at the commencement of the first Session each
year.
3. A Bill passed in jatiyo sangshad becomes an Act of parliament only after the
President has assented, or is deemed to have assented, to it.
4. No Money Bill can be introduced in parliament except on recommendations of the
president. 5.The President may, upon the advice of the prime minister authorise
withdrawal from the consolidated fund of the Republic, funds necessary to meet
expenditure for a period up to sixty days in a particular year pending the making of grants
and passing of the law for appropriation from that fund by parliament.
Ananna Halder
17 Law 020

Implementation of Separation of Power in Bangladesh.

1 st November 2007,finally Bangladesh government declared formal separation of
power executive and judicial function separate from each other.It indicate that two
separate magistrates for judicials and executive function operate this two organ of the
government.
The provition of separate of power of Bangladesh constitution provides the independence
of the judiciary under constitution article 22.
In January 2007,government proclaimed a gazette notification for separation of the
subordinate judiciary from the executive.
The November 1 ceremony creat the improves of two new magistrates the district judicial
magistracy and the metropolitan magistracy 218 judicial magistrates where appointed,
while the judicial power of 170 administrative officials was withdrawn.

#Separation of judiciary from the executive under the case of "Masder Hossain
V.Secretary, Ministry of Finance ".
Around 441 judicial officers who were judges in different civil courts filled a writ petition in
1995.The petitioners alleged that:
*Inclusion of judicial service with the name BCS under the Bangladesh civil services
was ultra virrus the constitution.
*Being placed in chapter || of part VI the subordinate judiciary has already been
separated by the constitution.

#The decision of High Count Division.

The High Court Held that:

* Since the subordinate courts are part and parcel of part VI, the judicial offices
cannot be. equated with other services.
*Since Bangladesh civil service has been specifically dealt with in part IX and
judicial services is separately mentioned in articles 115,116 and 116A of the constitution
creation of BCS service is ultra virus.
*The service of the republic is a broad term embracing generally all services in
Bangladesh including the defence service and judicial service that doesn't meant than
judicial or defence service is a part of the civil or administrative service.It is a service of
republic not civil service.
#The decision of the Appellate Division.
Against the judgement of the HCD, government preferred an appeal. The appellate division
examined various provisions of the constitution and gave a number of direction to achieve
separation of judiciary from the executive. Such as:
* The member of the judicial service are in the services of the republic they cannot be
equated with the member of other services of the republic.
* Government must establish a separate judicial pay commission.

* Judicial vacancies should be advertised and recommendation for appointment on merit

should come from that commission.
* The government was to take necessary steps forthwith for the president to make rules
under article 115 to implement its provisions etc
Sojeeb Mia
17 Law 021

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-

1. Abundant number of cases in the subordinate Courts.

2. Absence of specialized Court
3. Defects of procedural law.
4. Luck of dutifulness of the judges.
5. Luck of effective monitoring in the judicial system.
6. 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.
Scarcity logistics to the judges more and more specialized Court like Family Courts,
commercial Court etc. should be set up. The Law Reforms Committee of 1967, headed by
Justice Kemaluddin Hossain also suggested for speculated commercial Courts. Delay is
caused in obtaining certified copies of judgment, decree and order. Till today, in most of
the cases, these documents are produced in hand written. Order XX rule 20CPC may be
amended to supply judgment and decree on the same date of signing of free of cost.
Number of judges should be increased and remuneration of lower court judges should be
increased to attract the competent lawyers to join the bench.

The government can motivate the judges to maintain time schedule. According to Dr. M
Zahir, three factors will help motivation in judges to keep to the time schedule.

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 Institutes. 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.

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.
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 .
Observation of Masder Hossain case:
The independence of judiciary does not mean that the absence of responsibility for the
action of a judge .Judicial independence without judicial accountability may generate both
abuse and misuse and hence Judicial independence involves the concept of judicial
accountability of the judges. Agreeing fully with the views expressed by the Chief Justice
Latifur Rahman in his extra-judicial capacity this author quotes him.
The law commission of Bangladesh Thirteenth Report on ‘’Proposals for speedy Disposal
of suits and cases in sub-ordinate courts in Bangladesh ‘’
 Zahir Dr.M. Delay in Court and Court Management, Bangladesh Institute of Law and
International Affairs, Dhaka, 1988.

The law commission of Bangladesh Thirteenth Report on ‘’Proposals for speedy Disposal
of suits and cases in sub-ordinate courts in Bangladesh ‘’.

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 8th 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.