Separation of Judiciary in Bangladesh-Constitutional Mandates and Masdar Hossain Case’s Directions: A Post Separation Evaluation

In Bangladesh, the separation of the judiciary and its independence are constitutional mandates repeatedly declared in the judicial pronouncements; but no ­effective­steps­were­taken­by­any­governments­before­2007.­In­order­to­fulfill­the­ constitutional mandates and mandatory directions of the judgment of the Masdar Hossain­case,­the­judiciary,­particularly­judicial­magistrate­courts­were­formally­ separated­from­the­executive­on­1st­November­2007.­More­than­12­years­have­ gone­since­the­formal­separation­of­the­judiciary­from­the­executive.­Under­these­ circumstances,­this­paper­has­been­conducted­to­reveal­whether­all­­directions­of­ Masdar Hossain­case­have­been­implemented­and­true­separation­of­the­judiciary­ from­the­­executive­or­the­legislature­was­established.­From­the­analysis­of­the­ study,­the­findings­as­revealed­are­negative;­therefore,­the­barriers­have­also­been­ identified­and­explored­in­the­paper.


Introduction
Separation of the judiciary is an important principle of an effective judiciary, without which the independence of judiciary is not possible to be established in a country and if the judiciary is not independent, then the citizen's rights, it may presume, may be violated; rule of law is impossible to be ensured there. It is observed in Second Judges' case 1 (1998) 7 SCC 739 that "so long as the Judiciary remains truly distinct from both, the legislature and the executive, the general power of the people can never be endangered from the any quarters".
State has three important organs-executive, judiciary and legislative. Among them, the judiciary is very important to ensure citizens' constitutional rights, legal rights if their rights are infringed either by the executive or legislature or by any department or institution of the government or even by an individual or a group of individuals. It is rightly said that "the judiciary stands between the people of the country and the State as a bulwark against Executive pressure, excesses and misuse of power by the Executive 2 ". Therefore, the judiciary of a country must be separate, independent and competent. The concept of separation of the judiciary from other organs of a State refers to a situation in which the judicial branch of government acts as its own body free from intervention and influences from the other branches of government, particularly from the executive and legislature.
In Bangladesh, the separation of the judiciary and its independence are constitutional mandates as they are incorporated in the several articles 3 of the Constitution of the People's Republic of Bangladesh (hereinafter as the Constitution): Article 22 of the Constitution provides that "the State shall ensure the separation of the judiciary 4 from the executive organs of the State" whereas Article 94(4) of the Constitution states that "the chief justice and the other judges of the Supreme Court 5 of Bangladesh shall be independent in the exercise of their judicial functions." The same view is also reflected in article 116A 6 regarding the judges 7 and judicial magistrates 8 of the subordinate courts. Even, in the case of Secretary, Ministry of Finance v. Masdar Hossain and others, 9 (hereinafter as the Masdar Hossain case) it was opined upon the provisions of the independence of the judiciary affirmed in Article 94(4) and Article 116A as one of the basic pillars of the Constitution which could not be abridged, curtailed or diminished in any manner. 10 On the contrary, Article 109 provides that the High Court Division (hereafter as HCD) of the Supreme Court of Bangladesh (hereinafter as SCB) shall have superintendence and control over all courts and tribunals subordinate to it. If the higher judiciary has control and superintendence exclusively upon the subordinate judiciary, it is possible for the independence of the subordinate judiciary to be established. In the Masdar Hossain judgment, the institutional independence of the subordinate judiciary, especially from the legislative and the executive has been treated as third essential condition of judicial independence. 11 Even in the 1972 Constitution, the SCB got priority in controlling and supervising of the subordinate judiciary due to the provisions of original Articles 115 and 116. Article 116 empowered the SCB with control over the subordinate judiciary in the case of postings, promotions, grant of leave and discipline and under Article 115 district judges would be appointed by the President on the Supreme Court's (hereinafter as SC) recommendation, but current articles 115 and 116 empower the President in place of the SC. 12 It was very unfortunate for the nation in spite of having mandatory provisions regarding the separation of the judiciary in the 1972 Constitution, no effective steps were ever taken by the legislature, executive or any government in order to separate the judiciary from other two branches before 2007. And finally, it was officially separated from the executive on the 1 st November 2007 by the then caretaker-government in order to meet such constitutional mandates and the directions of the Appellate Division given in the case of Secretary, Ministry of Finance v. Masdar Hossain and others 13 20 BLD (AD) 141; the underlying purpose is to establish the rule of law and uphold the citizens' rights; in the mentioned case the Appellate Division gave twelve directions, of which five were mandatory and seven were optional.
By the separation declaration on 1 st November 2007, the subordinate judiciary particularly judicial magistrate courts 14 were separated from the executive, but effective separation is yet to be established. Under these circumstances, whether all directions of Masdar Hossain's judgment have been implemented; if they have all been implemented, whether true separation of the judiciary has been established here; or what are the reasons behind the nonestablishment of true separation of the judiciary in Bangladesh?; these are all the research questions of the current paper. By applying an analytical research methodology, this paper has been conducted. A great deal of literature has been written on the separation of power and separation of the judiciary. Literature regarding the separation of the judiciary after 2007 will be considered here, as the research is regarding the post separation period of the judiciary. In Bangladesh targeted literature, particularly research based works upon the post separation of the judiciary are hardly available. Justice Latifur Rahman agreed in a judicial pronouncement for financial independence, for effective and meaningful discharge of the constitutional functions of the judiciary, which might ensure its effective separation. 15 Dr. Zahidul (2012) claimed that the judgment of the Masdar Hossain case remained largely unimplemented until 2006; he determined many inconsistencies with the independence of judiciary in Bangladesh, particularly, controversial appointments to the HCD, appointment of the Chief Justice (hereinafter as CJ), appointment of public prosecutors, arbitrariness in judicial actions, withdrawal of cases on political grounds, the manner of refusal of bail to political leaders and arbitrary presidential pardon etc., for which questions raised among citizens regarding the separation of the judiciary and its independence. 16 M Rafiqul (2014) argued for the absence of due process of law and justice in the activities of the executive giving opportunity to the executive body, putting the separation of the judiciary at stake. 17 He also identified that the maintenance of a dependable judiciary has created a political expedient for the executive, which is also a bar for ensuring the separation of the judiciary. Huda (2017) claimed for effective separation of the administration of justice from the legislative and executive through the preservation of the public liberty, where the appointment of the judges by the executive is a great restraint for effective separation. 18 Shakhawat (2018) claimed that a meaningful and effective judiciary was not possible in 45 years due to the collective failure of the executive, legislature and the judiciary. 19

Separation of Power: Historical Background
Separation of powers, is an idea that became visible at the time of Montesquieu and even before. 20 The concept of separation of powers derived from centuries of political and philosophical development 21 reflected first in Aristotle's book The Politics. 22 In this book, the author focused on three elements or powers of a government, where the first element is the deliberative element pertaining to common dealings like war and peace, enactment of laws, penalty of death, appointment, confiscation and deportation. 23 The second element refers to the number of offices and subject matter of its dealings as well as the tenure of offices. 24 And the third element is the component parts of the judiciary, which denotes the system of court, element of judiciary, appointment procedure of judges and structure of the court. 25 The third element of the government merely touches on the doctrine of separation of powers.
Later on, in 1690, Locke in his Second Treatise of Civil Government focused on the independence of judiciary and the theory of separation of powers saying that, 'it is necessary there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power comes often to be separated'. 26 It is also stated that: 'The executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated and placed at the same time in the hands of distinct persons. The executive and federative power should be placed in persons that might act separately, whereby the force of the public would be under different commands, which would be apt some time or other to cause disorder and ruin.' 27 In 1748, Great French Philosopher Montesquieu formulated the doctrine of separation of powers in his famous book The Spirit of the Laws stating that: 'In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.' 28 Montesquieu explicates that each power of the government's three organs should be exercised by each organ itself, so that no apprehensions of interfering can arise. He thus emphasized upon the separation judiciary: 'When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be legislator. If it were joined to executive power, the judge could have the force of an oppressor.
All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.' 29 25  In 1824, William Paley who is a famous English philosopher and theologian, made observations about the doctrine of separation of powers in his Moral and Political Philosophy as under: The judges of the land become not infrequently the arbitrators between the king and the people, on which account they ought to be independent of either; or, what is the same thing, equally dependent upon both; that is, if they be appointed by one, they should be removable only by the other. 30 However, there are lots of criticisms against the doctrine of separation of powers. Absolute separation of power of each branch is never possible and also not desirable; therefore, the subsequent doctrine of checks and balances was introduced among the three organs. The US is a vivid example for following the principle of checks and balances most rigidly among the three organs, whereas in Bangladesh the principle is not ensured constitutionally and not followed in practice; As a result, in spite of declaring the constitution as the supreme law of the country and ensuring constitutional supremacy, the executive and legislative are working as supreme organs in practice, against which true separation and effective independence are quite impossible.

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 Com-mission, amendment of the criminal procedure and the new rules for the selection and discipline of members of the Judiciary.' 31 In the mentioned case, the AD of the SCB declared and directed the government to implement the 12 directions where they are as under: I. The judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally and structurally distinct and separate service from the executive and administrative services of the Republic. 32 II. The word "appointment" in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre appointment rules etc.  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 1 st  It is apposite to mention here that the traditional judgment reflects the judicial independence of Bangladesh where the Justice Latifur Rahman draws the reference of article 94 (4) of the Constitution which mandates, "Subject to the provisions of this constitution the chief justice and other judges shall be independent in the exercise of their judicial function". He also comments, "An independent judiciary is the conscience -keeper of the State." 53 The leading case also mostly emphasizes articles 115, 116, 116A, 152 (1), 133, 136, 109 and 117, which are directly and indirectly related to the independence of the judiciary. In this perspective, the court declared that article 94(4) and 116A of the Constitution as the basic pillars of the Constitution that cannot be demolished, whittled down, curtailed or diminished in any manner. 54 The said case plays a significant role in making rules for the appointment of judges and Direction No. 4 (Establishment of Judicial Service Commission 55 ), Direction No. 6 (Establishment of Separate Judicial Pay Commission 56 ) and Direction No. 10 are being merely implemented but the rest of the directives of the case are yet to be implemented or are still inactive. In the case of Direction No. 5 (pay, allowance, pension, terms and condition), Direction No. 7 (priority of Supreme Court over executive), and Direction No. 8 (security of tenure, salary and institutional independence), no effective actions have been taken to implement them for the purpose of ensuring the separation of the judiciary and independence of the judiciary.
In addition, after separation some matters have been raised creating restraint in implementing true separation of the judiciary according to Masdar Hossain's Judgment directions, which cannot be ignored and therefore, they are analyzed here as under.

Contrary Provisions of the Constitution
Article 116A of the Constitution provides that all persons employed in the judicial service and even all magistrates, 57 shall be independent in the exercise of their judicial functions. Again, Article 109 of the Constitution states that the SC shall have superintendence and control over all courts subordinate to it. But the current Articles 115 58 and 116 59 of the Constitution have created a real bar to a meaningful and effective separation and independence of the judiciary. These two articles have empowered the President to make appointments of judges and judicial magistrates of the subordinate judiciary and to deal with the posting, promotion and discipline of judicial officers in consultation with the SC. In fact, under these two articles, the  as an integral part of the independence of the judiciary as incorporated in the Constitution, which is not amendable due to the provision of Article 7B inserted by the 15 th Amendment of the Constitution. But the independence of judiciary has been affected by the 16 th Amendment of the Constitution 69 as it empowers the Parliament to remove the judges of the Supreme Court of Bangladesh, which is direct interference of the legislature with the judiciary and contravention of constitutional provisions. Therefore, the independence of the judiciary has been affected and subsequently such amendment was declared as void (illegal) in recent judicial pronouncements 70 of the HCD and AD in the 16 th Amendment Case; now this case is pending before the AD for review. Due to harsh observations 71 in the judgment the relationship among the judiciary, executive, and legislature emerged as the worst in the history of the country and there was high tensions among the judiciary and the government. Consequently, the former chief justice S K Sinha was compelled to resign; Justice Wahab Miah had to act as chief justice-in-charge and later he also resigned, due to appointing another justice as chief justice of the SCB in transgression of the seniority rule. 72 Under these circumstances, it is harsh and challenging for the judges to exercise their judicial functions independently. 65 Supreme Judicial Council consists of 3 members from the judges of the Supreme Court incorporated in the constitution of which one member is chief justice and next two senior judges of the Supreme Court. 66 As per 16 th Amendment of the constitution, Article 96(2) provides "A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehaviour or incapacity." 67 A council of three members inserted in the Constitution under Article 96 by the 5 th Amendment of the Constitution; of which one member is chief justice and next two senior judges of the Supreme Court where Article 96(2) of the Constitution provides that a Judge of the Supreme Court shall not be removed from his office except upon a report submitted to the President by the Supreme Judicial Council on the basis of an inquiry proceeded by it due to the allegation of physical or mental incapacity, gross misconduct or moral turpitude regarding a judge of the Supreme Court. special Courts and Tribunals, Department of Registration, Office of the Attorney-General, Judicial Administration Training Institute, Office of the Administrator General and official Trustee (AGOT), Judicial Service Commission Secretariat, Marriage Registration, Government Pleaders, Public Prosecutors, Notary Public, etc. More specifically the ministry gives advice to all ministers regarding the questions arising on legal and constitutional matters, deals with other countries in judicial matters, takes steps for the administration of justice including appointing, posting, transfer, etc. of all judicial officers, takes fees in courts and tribunals, judicial stamps, court-fees and stamp duties etc. appointing attorney general, deputy attorney general, assistant attorney general and assigning their functions etc. 81 Due to the nature of the functions of 'the ministry of law and justice', there is often interference from the law ministry or government with the affairs and functions of the judiciary for which a ' dual rule' is created in the judiciary, which may make the necessary actions slow in the case of appointment, transfer, promotion or posting of the judges of the lower judiciary which hinders the functions of the judiciary. 82 People believe that this ministry works for government more than the judiciary and interferes for the sake of the executive bodies or for the legislature. In several cases, the news came in daily newspapers regarding the dubious role of this ministry: SC says the President 'misinformed' on rules for the judges of the lower court (subordinate courts) -this news came in The Daily Star, 13 th December 2016, where the SC asked the law ministry to issue a gazette notification on the rules determining the discipline and conduct of subordinate courts' judges. In a survey conducted by the researcher, 71.82% of respondents among 30 judicial officers agreed on the condition of not disclosing their name for the sake of their job security, that there should have a separate and independent secretariat for the judiciary for ensuring the true independence of judiciary. Even the Supreme Court Bar Association (SCBA) demanded a separate secretariat for the judiciary in the light of the Masdar Hossain case verdict, which will help to ensure judicial independence. 83 In reply to the SCBA demand's the law minister Mr. Anisul Haq remarked that it is unrealistic as there is no separate secretariat for the judiciary for any democratic or undemocratic countries in the world. 84 But in an inquiry into these matters revealed that there is the ministry of justice headed by the Secretary of the State for justice in UK, 85 or the minister of justice in Canada 86 who is the minister of the Crown in the Canadian Cabinet, responsible for the Department of Justice, who also serves as chief federal legal advisor and Attorney General of Canada. If here there is a separate ministry for the judiciary rather than a combined ministry (ministry of law and justice), it will work only for the judiciary; the consequences of which include that the independence of the judiciary will be ensured, judicial functions will run more smoothly and justice will be speedier.