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’ case1 (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 Executive2”. 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 articles3 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 judiciary4 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 Court5 of Bangladesh shall be independent in the exercise of their judicial functions.” The same view is also reflected in article 116A6 regarding the judges7 and judicial magistrates8 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 1st 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 others13 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 1st November 2007, the subordinate judiciary particularly judicial magistrate courts14 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 non-establishment 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 development21 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
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 Commission, 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:
- 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
- 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., but Article 115 does not contain any rulemaking authority with regard to other terms and conditions of service and Article 133 and Article 136 of the constitution and the Services (Reorganization and Conditions) Act 1975 have no application to the above matters in respect of judicial functions.33
- The creation of BCS (Judicial) Cadre along with other BCS executive and administrative cadres by Bangladesh Civil Service (Re-organisation) Order 1980 with amendment of 1986 is ultra vires the Constitution, whereas Bangladesh Civil Service Recruitment Rules 1981 are applicable to the judicial service.34
- The nomenclature of the judicial service shall follow the language of the Constitution and shall be designated as the Judicial Service of Bangladesh or Bangladesh Judicial Service. A Judicial Services Commission shall be established forthwith with majority of members from the senior judiciary of the Supreme Court and the subordinate courts for recruitment to the Judicial service on merit, with the objective of achieving equality between men and women in the recruitment.35
- Under Article 133 law or rules relating to posting promotion, grant of leave, discipline (except suspension and removal), pay, allowances, pension (as a matter of right not favour) and other terms and conditions of service, consistent with Articles 116 and 116A shall be enacted separately for the judicial service.36
- It is also directed to establish a separate Judicial Pay Commission forthwith as a part of the Rules to be framed under Article 115 to review the pay, allowances and other privileges of the judicial service. The pay etc. of the judicial service shall follow the recommendations of the Commission.37
- It is declared that in exercising control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under Article 116, the views and opinion of the SC shall have primacy over those of the Executive.38
- The conditions of judicial independence in Article 116A, elaborated in the judgment, namely (1) security of tenure, (2) security of salary, pension and other benefits and (3) institutional independence from the parliament and the executive shall be secured in the law or rules made under Article 133 or in the executive orders having the force of rules.39
- The executive Government shall not require the SCB as to seek their approval to incur any expenditure on any item from the funds allocated to the Supreme Court in the annual budgets.40
- It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal.41
- For the separation of the subordinate judiciary from the executive, parliament can amend the constitution if necessary to make the separation more meaningful, pronounced, effective and complete.42
- It is declared that until the Judicial Pay Commission gives its first recommendation the salary of Judges in the judicial service will continue to be governed by status quo ante.43
Despite the necessary directions being given by the Appellate Division in the Masdar Hossain case to the Government for the separation of the judiciary from the executive and legislature, the 1996 and 2001 governments also made excuses many times and dissipated their tenure.44
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:
- Bangladesh Judicial Service Commission Rules 2007
- Bangladesh Judicial Service Pay Commission Rules 2007
- Bangladesh Judicial Service Commission (Constitution of service, appointment on the service and suspension, removal and dismissal from the service) Rules 2007
- Bangladesh Judicial Service (posting, promotion, grant of leave, control discipline and other condition of service) Rules 2007
Then Mr. Fakruddin Admed’s caretaker government passed four sets of rules to implement the directions of the judgment, but all four sets are not currently operating in practice; only the Bangladesh Judicial Service Commission Rules 2007 are actively working, by which candidates are primarily selected by the Bangladesh Judicial Service Commission through preliminary examination, written examination and viva voce for appointing judges of the subordinate judiciary.
Bangladesh Judicial Service Commission (hereinafter as the Commission) is composed of 11 (eleven) members who are appointed under section 3 of the Bangladesh judicial Service Commission Rules 2007, by the President in consultation with the Chief Justice of the SCB.47 The Commission is constituted with a judge of the AD as its chairman, two judges of the HCD, Attorney General, one member of the Law Commission, the Secretary of the Ministry of Establishment, the Secretary of the Ministry of Finance, the Secretary of the Ministry of Law and Justice, one of the Deans of the Faculty of Law of Dhaka University, Rajshahi University or Chittagong University, Registrar of the Bangladesh Supreme Court and the district judge of Dhaka as members of the Commission. In addition to its regular responsibilities of selecting of candidates for appointment, the Commission is also responsible for giving legal advice on any legal question regarding such appointment or duties of the Commission; the Commission have to perform the duties imposed upon it by the any other rules made under article 115 or 133 of the Constitution of Bangladesh;48 and the Commission has to submit annual reports of its annual activities to the President by 31st March of each year.49 It also has power to enact any rules, which is not inconsistent with the Bangladesh Judicial Service Commission Rules 2007, by official gazette notification in consultation with the President.50
It is apt to state that the appointment, posting and removal system for judges of the subordinate judiciary are not being fulfilled in pursuance of Bangladesh Judicial Service Commission [Constitution of service, appointment of the service and suspension, removal and dismissal from the service] Rules 2007 and Bangladesh Judicial Service [posting, promotion, grant of leave, control discipline and other conditions of service] Rules 2007 consecutively. Rather the removal, promotion, posting and transfer of the judges of subordinate courts are preceded by the executive through the Ministry of Law and Justice in consultation with the SCB, which is deemed as the main bar to establishing true separation of the judiciary.51 Recently, Judicial Service Disciplinary Rules 2017 have been passed, but they also have some loopholes which are contradictory, with the doctrine of separation of power discussed in the barriers section of the paper. On the other hand, the judges of the SC are also appointed by the executive on political consideration in consultation with the SC, for which there is no detailed written rules in spite of directions52 being issued from the SC on the matter.
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 of the subordinate judiciary by the Judicial Service Commission under Bangladesh Judicial Service Commission Rules 2007. Actually, the fact is that the Judicial Service Commission can only make selection and recommendations of suitable candidates for appointing judges of the subordinate judiciary, where the executive exclusively exercises the power of appointment to the service and suspension, removal and dismissal from the service in pursuance of Article 115 of the Constitution.
From the study on the directives of the Masdar Hossain judgment, it is revealed that first four directions, viz., Direction No. 1 (Judicial Service – distinct and separate service from the executive and administrative service), Direction No. 2 (Creating and Establishing Judicial Service including judicial magistracy), Direction No. 3 (Creation of BCS (Judicial) Cadre along with other BCS executive and administrative cadre Ultra Vires the Constitution) and Direction No. 4 (Establishment of Judicial Service Commission55), Direction No. 6 (Establishment of Separate Judicial Pay Commission56) 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 11558 and 11659 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 executive can control and interfere with the lower judiciary regarding the posting, promotion and discipline of judicial officers despite the judiciary being separated from the executive on paper. The President has limitations on the exercise of all his functions, as he has to act according to the directions of the Chief Executive or Prime Minister as per view of Article 48(3),60 which means that the President can exercise all of his functions at the desire of the Prime Minister of the executive head. Under these circumstances, the provisions of Articles 109, 115 and 116 have created a ‘dual rule61’ in the judiciary, which sometimes makes slow the filing of appointments, transfers, postings and promotion of the judges of lower courts at the district level. Under these contrary constitutional provisions, which give space for the executive to interfere with the judiciary people believe that judges who issue orders or decisions against the interests of the government are transferred from their current job station (place of business) to inconvenient working stations62 and consequently judges may give orders or judgments in favour of the government, which is not helpful in any way in establishing individual independence or institutional independence of the judiciary.
Despite the separation of the lower judiciary from the executive, the posting, promotion and discipline of judicial officers is still interfered with by the executive due to the existing constitutional provisions. Therefore, effective separation and real independence either institutionally or individually are not possible. But there were no such provisions in the original Constitution of 1972. Article 116 of the 1972 Constitution, empowered the SC with control over the lower judiciary in the case of postings, promotions, grants of leave and discipline. As per Article 115 of the 1972 Constitution, district judges would be appointed by the President on the Supreme Court’s recommendation. Under this situation, in order to ensure true separation, the legislature should restore the original articles 115 and 116 in in place of current ones.
Tenure and Removal of Judges: State of Job Security
Article 94(4) of the Constitution provides that the Chief Justice and the other judges of the SC shall be independent in the exercise of their judicial functions. The security of tenure of judges, their promotion, posting and transfer are the core characteristics of the independence of the judiciary, as admitted in the Masdar Hossain judgment. In the judgment of the 16th Amendment case63 Dr. Kamal Hossain also opined the security of the judges as one of the essential conditions for ensuring effective independence of the judiciary; the same view was also reflected in the case of Walter Valente v Majesty The Queen and another, (1985) 2 R.C.S. 673 and S.P Gupta and others v President of India and others, 19823 AIR (SC) 149 cited in the same judgment of the 16th Amendment case.64 As per Article 96(1) a judge of the Supreme court shall hold office until he attains the age of 67 years; he/she cannot hold the office for a life time; he/she may be removed from his/her office due to physical or mental incapacity, gross misconduct or moral turpitude if the Supreme Judicial Council65 makes recommendation to the President. But such power of the Council has been taken away by the 16th Amendment of the Constitution and vested in the hands of the parliament members.66 Under these circumstances, Article 96 of the Constitution containing the provisions for removal of the judges of the Supreme Court by the recommendation of the Supreme Judicial Council,67 is held in the 16th Amendment Case68 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 15th Amendment of the Constitution. But the independence of judiciary has been affected by the 16th Amendment of the Constitution69 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 pronouncements70 of the HCD and AD in the 16th Amendment Case; now this case is pending before the AD for review. Due to harsh observations71 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.
The trial by mobile courts held by the executive magistrates raised questions among the citizens regarding the independence of the judiciary in the country and such trials often infringe upon the rights of citizens.7374 It is a direct interference by the executive with the functions of the judiciary, which is also conflicting with citizen’s rights regarding fair trial by the open court, enshrined in Article 35 of the Constitution. Conviction by mobile court on the basis of testimony of witnesses and circumstantial evidence without giving any opportunity for the accused to consult with a lawyer and without his confession is a clear violation of citizens’ fundamental rights enshrined in the Constitution, which is also contrary to the separation of the judiciary and to the judgment of Masdar Hossain.75 “Trial of mobile court by executive magistrate creates double judiciary system in the country as they are not under the control and supervision of the Supreme court of Bangladesh as it having upon other subordinate courts; why it is running in this way”- asked by the then chief Justice Surendra Kumar Sinha in the seminar held at Dhaka University (DU) Senate Bhavan.76 Even this peculiar trial by executive is not found in India and Pakistan.77 In the case of the trial of mobile courts by executive magistrates, “check and balance should be ensured while executive magistrates try through mobile courts, they should come under the supervision of the SC” –admitted by the present law minister- Mr Anisul Haque in an interview taken by Prothom Alo.78 Even the HCD declared the mobile court as unconstitutional in the year (2017) in the judgment of the Mobile Court case, 2017.79 The court also opined that empowering the executive magistrates with judicial powers as “a frontal attack on the independence of the judiciary and overstepping of the theory of the separation of powers”. After such judgment from the HCD, the govt. made three appeal petitions to the AD against the verdict and got permission to run the activities of such courts until the disposal of three leave to appeal petitions.80
Separate Secretariat for Judiciary
Despite the judiciary has been separated from the executive, a distinct or separate ministry or secretariat is yet to be established. The current ‘ministry of law and justice’ is working as secretariat for law and judiciary, the main tasks of ‘the ministry of law and justice’ are exercising administrative control, management and dealings with the sub-ordinate/attached departments or offices, namely, the sub-ordinate judiciary, Administrative tribunals, various other 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, 13th 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 Canada86 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.
Absence of Separate Investigation Cell and Independent Prosecution Service
In the Bangladesh subordinate judiciary particularly judicial magistrate courts have no separate investigation cell. There are no judicial investigation officers under the supervision and control of the judiciary and therefore, the judiciary has to depend on the police personnel, who are under the control of State Ministry, maintaining law and order of the country. However, they are engaged in a myriad of issues showing a dillydally approach and have a casual manner of investigation. In many cases, they are alleged to be inefficient, negligent and biased in discharging their duties.87 These police officers are not so skilled and are not experts in preparing reports and therefore, the accused get discharged due to weak investigation reports and citizens are deprived of justice. Besides, the police are so interested in arresting the criminals and yet are so reluctant to present the witnesses before the courts, the consequence of which is very frustrating and results in the disposal of cases.88
Again, here there is no independent public prosecution service like many other countries of the world. Public prosecutors are appointed here mostly on the basis of political consideration. The ruling party appoints those lawyers who are loyal to them therefore, inexperienced and unskilled lawyers are getting appointment who cannot ensure justice due to their limitations and they are often also engaged in corruption.89 But a prompt and quality investigation and independent prosecution service are required as the basis of a criminal case for ensuring quick and effective criminal justice. In India in 2012 separate investigation and prosecution cadre were proposed for a speedy criminal trial system.90 In Pakistan for the purpose of prosecution, a separate police sub cadre was created where law graduates are being appointed to whom the judiciary has control and supervision.91 In Bangladesh if such a cadre is established, a speedy criminal trial system and effective separation of judiciary will be ensured. Under these circumstances, there is no alternative to a separate investigation cell under the control of the judiciary and independent public prosecutor service.
Absence of Financial Independence
Financial independence is very essential for the effective separation and independence of the judiciary. According to Justice Browne–Wilkinson, the lack of financial support by the government is a threat to the independence of the judiciary. Justice Malcolm stated that ‘the preparation of judicial estimates by anyone not acting under the direction of the judiciary and the exercise of control by the Government over the way in which the courts expend the funds granted to them necessarily poses a potential threat to judicial independence’.92
The financial independence needed for an effective independent judiciary and smooth judicial functions are also recognized by international instruments: Principle 7 of UN Basic Principles on the Independence of the judiciary provides that it is the duty of a State to provide adequate resources to the judiciary to ensure its proper judicial functions;93 again Article 34 of the Draft Universal Declaration on the Independence of Justice states that for ensuring the independence of the judiciary the budget for the judiciary shall be prepared by the proper authority in collaboration with the judiciary regarding the needs and requirements of the judiciary.94 Even in the judgment of the Masdar Hossain case, it is opined that the higher judiciary should get financial independence for the effective and meaningful discharge of judicial functions, especially for constitutional functions.95 Officially the judiciary was separated from the executive in 2007, but the judiciary has no financial independence still today due to having no self-fund. The revenue coming from the court fees are deposited to the govt. fund. The judiciary has to depend on the government and the amount the govt. allocates each year for the judiciary is very inadequate; actually the judiciary gets less than 1% of the total budget of the country.96 In the financial year 2016, only 112 cores were allocated for the judiciary which was very poor for the infrastructure development of the judiciary, but the govt. earns more from court fees. Even the then chief justice also urged for financial independence of the judiciary.97 The current state of financial independence and budget for the judiciary are not improving as in the financial year 2019–2020 only 195 cores are being proposed for the Supreme Court of Bangladesh, where for whole judiciary it is 1650 cores which is only 0.352 percent of the total budget in spite of being one of the three organs of the State, whereas the allocated budget for BTV or Fishing Department is far more.98 Under this poor budget it is quite impossible to work as an effective independent organ to upgrade the rule of law in the country.
Judicial Service Conduct & Discipline Rules 2017
One of the directions of the Masdar Hossain case was to make separate and different rules on the discipline and conduct of judges of the subordinate courts but up until 2017, no gazette notification was issued. On several occasions, the SC expressed dissatisfaction with the government for not finalizing the Conduct Rules. On the 7th May 2016 the Law Ministry proposed rules on the discipline and conduct of the judges for lower courts and sent it to the SC for opinion, which was rejected on 28th August 2016 at the hearing of the Masdar Hossain case by the Supreme Court due to the similarity of the Govt. Employees (Discipline & Appeal) Rules 1985 which were totally contrary to the judgment of the Masdar Hossain case. Under these circumstances, the SC showed its dissatisfaction and gave a draft copy on the Rules to the ‘Ministry of Law and Justice’ to publish it by gazette notification.99 But an embarrassing and surprising matter arose while law ministry issued a notification on the 11th December 2016 stating that the President decided not to issue a separate gazette notification on the conduct rules.100 Finally, after resignation of the former chief justice, SK Sinha, the govt. issued and published the gazette notification for the Judicial Service Conduct & Discipline Rules 2017, but in the Rules old things are found as new ones regarding the final authority relating to the suspension, removal or temporary suspension of judges of the subordinate courts; here in the case of the suspension, removal or temporary suspension of the judges of the subordinate courts, the President (who has to act according to the advice of the head of the executive or prime minister101) is referred to as final authority in the name of appropriate authority and the higher authority refers to the SC and district judge.102 Therefore, it is evident that ultimate power is still in the hands of the executive by the name of the President as titular head of the state. As a result, the spirit of the original 1972 Constitution and the directions of the Masdar Hossain case regarding the separation and independence of the judiciary are not truly reflected and implemented. Interestingly, again, the shadow of the ‘dual rule’ is also reflected under the 2017 Rules, through the name of appropriate authority regarding removal, suspension, or temporary suspension of judges of the lower courts. More interestingly, it is seen that the SC has welcomed the 2017 Rules without raising any questions; they have accepted them. Under these circumstances, a column in the Daily Star103 titled “A collective failure” came out on 9th January 2018, explaining the reasons behind and the responsibility for not establishing effective separation and independence of the judiciary 19 years after Masdar Hossain judgment. However, finally, it can be said that such separate rules for the conduct of judges of the lower judiciary are the old things in the new bottle by the executive, while the executive claims a progressive step though the effective separation of the judiciary it is still today absent in practice.
In Bangladesh ‘the role of each organ of the State is clearly defined and deliberately and carefully kept separate under the constitution to maintain its harmony and integrity and to maximize the effectiveness of the functionality of the organs of the State in their respective spheres’.104 But the judiciary was formally separated in 2007 by the separation of the judicial magistrate courts from the executive accompanying some drawbacks where the appointment of judicial officers of the lower judiciary, their posting, promotion and removal still today depend on the President under current Articles 115 & 116 of the Constitution and under the 2017 Rules; there is no separate secretariat for the judiciary and detailed specified rules for the appointment of judges for the higher judiciary.
In this paper in response to inquiry it is also revealed that some directions of the Masdar Hossain case have been fulfilled and few will not see the light of implementation (see the post-2007 regime section). It is also found that trial by mobile court held by the executive is creating a double judiciary in the country, which is not under the supervision and control of the SC for which the separation of the judiciary is again at stake. In addition to this, the dilemma of the judgment of the 16th amendment case and subsequent consequences (implied confinement of former chief justice, then resignation, chief justice in-charge, infringement of the seniority principle and resignation of the aggrieved judges) have raised questions among the people of the country regarding the separation of the judiciary and therefore, the independence of the judiciary has fallen into a huge challenge.
Apart from these, the financial independence of judiciary is yet to be established due to the lack of a separate investigation cell under the judiciary and absence of an independent prosecution service. The people are deprived of a speedy criminal trial system and as a result they are losing their confidence in the judiciary. With a view to implementing the directions of the Masdar Hossain judgment, a separate code of conduct or discipline rules for the judges of the lower judiciary was passed in 2017 which was deemed as old things in a new bottle, as the ultimate authority being vested in the hand of the executive via the president regarding the removal of judges of the lower judiciary against which the higher judiciary did not raise any questions which was deemed as collective failure of the judiciary, executive and legislature for not ensuring separation of the judiciary and independence of the judiciary.
In order to ensure the true separation of the judiciary, the 12 directives of the Masdar Hossain case need to be implemented and existing barriers in the judiciary identified in this paper are to be removed by the government so far as possible. In this regard, government positive-will should be raised through increasing awareness among the people by judicial authority, mass media and civil society. It is true that a government does not like the true separation of the powers of the three organs of a state due to the excuses of the executive body. But, there is no alternative to the separation of the judiciary from the executive and legislature, as it is the most important component in establishing good governance and enforcing citizens’ rights. It is also opined by the High Court Division in the judgment of the Mobile Court case 2017105 that “if the independence of the judiciary remains truly separate and distinct from the legislature and the executive, the people’s power will never be endangered.”106