Great article on separation of powers as relating to the circumstances in Bangladesh
. Huda focuses on the judiciary in Bangladesh and how it isn't able to pursue or achieve its constitutional function.
Huda quotes Montesquieu:
Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary in the following manner: "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 power of judging is not separated from the legislative and executive. If it were 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. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man or the same body whether of the nobles or the people, were to exercise those three powers that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."
Throughout history, there has been exhibited a tension between the doctrine of separation of powers and the need for balanced government -- an arrangement depending more on checks and balances within the system than on a formalistic separation of powers.
The ground reality, in Bangladesh, is that the judiciary possesses neither the financial resource nor the power to extract the allegiance of the other organs of the State to the constitution and the implementation of its decision in so far as it relates to the separation of the judiciary from the executive.
As such, in spite of public declarations and commitments to judicial separation from the executive branch, political groups and the administration have maintained the status quo.
Thus the intentions of our constitution have not been carried through. Therefore, although the judiciary is in the process of separation of late, 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 fully and credibly established.
Huda is arguing that the current constitutional problems in Bangladesh are related to the lack of separation of powers between executive and judicature.
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