Taking cognizance and separation of judiciary
The independence of the judiciary was endorsed by the basic principles of UN General Assembly in 1985 and referred by the UN office of the High Commissioner for Human Rights as "The judiciary shall decide matters before them impartially on the basis of the facts and in accordance with the law without any restrictions, improper influences, inducements pressures direct or indirect form any quarter or for any reason." Separation of judiciary from the executive is the precondition for sound and independent judiciary.
Judiciary redresses the displeasure of the people and resolves disputes. The ICCPR was also mentioned in Article 14(1) 'In the determination of any criminal charge against him or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent , independence and impartial tribunal established by law.'
The concept of separation of judiciary from the executive refers a situation in which the judicial branch of the government acts as its own body free from intervention and influence from the other branches of the executive. If the power of taking cognizance is given to executive magistrates under section 190 of the CrPC, it will certainly go against the spirit of separation of judiciary and directives given by the apex court in Masder Hossain case.
Giving this power to executive magistrates will give rise to a very simple question: will it be an executive or administrative power or judicial power. It has been repeatedly held by our apex court in line with consistent decisions in Indian Sub-continent that taking cognizance is a judicial power and any misuse or abuse of such power is to be corrected thorough judicial process.
Usually this is done by filling an application in the High Court Division under section 561A of the CrPC. However, executive power cannot be questioned by 561A application. Thus if the power of taking cognizance is given to executive magistrate, how will the apex court exercise its supervisory power? So the accommodation powers between judicial and executive magistrates will be difficult. Let me give an example, an executive magistrate refuses to take cognizance of a petition or FIR.
What will be the remedy for the petitioner or informant? Where will he file application against the decision of the executive magistrate, given that an executive magistrate is not under the jurisdiction of judicial authorities? As taking cognizance is a judicial proceeding, a revisional application to an upper judiciary organ is always possible but if that power is exercised by an executive magistrate, this will not be possible and the ultimate result will lead to a power clash between two authorities.
Another thing is that, the legislators must remember that CrPC is a general law and the provisions of general laws are always subject to the provisions of special laws. The power of taking cognizance including power of trial are often given to executive or administrative authorities by special laws like Mobile court ordinance 2007, The Pure Food Ordinance, 1959 etc. The parliament may give the power to executive magistrates by special laws like the Special Powers Act if needed in special circumstances but giving a blanket power to take cognizance in a general law like the CrPC will mean dependent dispensation of judicial functions like before.
Furthermore, as the power of taking cognizance is judicial power and the same would be exercised by an executive magistrate, he must be armed with subsequent powers associated with it as laid down in section 200 of the CrPC which will ultimately come into conflict with the historic judgement in Masder Hossain case as there will no longer remain a separate judiciary. This is because the Appellate Division held in Masder Hossain case that 'judicial service is fundamentally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on any account and that it cannot be amalgamated, abolished, replaced, mix up and tied together with the civil executive and administrative services.'
A bragging chorus is in the air that Article 22 is not judicially enforceable, the separation of judiciary as implemented by the two Ordinances amending CrPC by the Caretaker Government is invalid. Those who join this chorus should bear in mind that the Appellate Division while delivering its judgement nowhere mentioned that it was giving directions to government to implement Article 22 although Justice Latifur Rahman referred to this Article in paragraph 78 of the judgement.
The decisions and directions given in Masder Hossain case are based on interpretation of Articles 115, 116, 116A of the Constitution which are not judicially enforceable. They are not judicially enforceable as such but the Constitution itself makes it clear that these directives shall be applied in law making by the Government and parliament; they shall act as guide to the interpretation of the Constitution and laws of the country. Fundamental principles enunciated in the constitution like Article 22 are not empty rhetoric; they are political commitments to the nation and the elected governments are oath bound to implement them on priority basis.
Finally, the parliament is the place for making laws and it is the function of the courts and the judiciary to interpret and apply such law. Judges can make some law (case law) in areas where there are no parliamentary statutes. A statute will supersede any case law and take its place and there can be no conflict. There is a magnificent deal of executive interest at stake in the separation of the judiciary. The apex court's duty is to uphold its vow to preserve, protect and defend the Constitution.
The biggest weapon that the Supreme Court has in its arsenal is the respect that it can command among the citizens and the creation of popular felling that it is working to uphold the laws of the Republic. The stake is very high in this post separation period when unwillingness of the executive to relinquish control on the judiciary is still being felt.
The writer is a student, Department of Law and Human Rights, University of Asia Pacific.