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Independence of the judiciary- the Masdar case http://www.thedailystar.net/independence-of-the-judiciary-the-masdar-case14760

Professor M Rafiqul Islam
The Constitution of Bangladesh provides for an impartial and independent judiciary as one of its cornerstones and guardian. In
reality though, the judiciary has been subservient to the all-powerful executive government since independence in 1971. Various
governments made rhetorical promises to separate the judiciary from the executive only to appease popular demand for an
independent judiciary. The domineering culture of executive autocracy over the constitutional imperative of the separation of
power militated against the creation of an independent judiciary. This situation led Masdar Hossain, a lower court judge, to lodge a
writ petition with the Supreme Court (SC) seeking an order for the separation of the judiciary from the executive as required in
Article 22 of the Constitution. The High Court Division (HCD) in May 1999 issued a directive to the government to separate the
judiciary, both higher and lower, from the executive within eight weeks. This ruling prevailed on appeal in November 2000 and
reaffirmed in the revision case in June 2001 in the Appellate Division (AD). The SC ruling worked out 12 directives for the
government to implement the separation without any constitutional amendment, which went unheeded. Despite Articles 102 and
112 of the Constitution making all SC rulings binding for all citizens and authorities, the then government sought 26 extensions of
time to implement the ruling and eventually left the office in October 2006 without separating the judiciary. The interim caretaker
government that assumed office after October 2006 declared the separation in January 2007 and enacted four sets of rules to effect
this separation. These rules, implemented by 1 July 2007, rendered the SC independent and brought the magistrates exercising
judicial functions under the control of the SC, free of executive influence. This reform is yet to be implemented in the lower
judiciary, which remains largely under the control of the executive.
In a hierarchical judiciary, the higher courts usually control subordinate courts to avoid deviations from the higher standard of
judicial behaviour thus preventing damage to public confidence in the judiciary (Hussainara Khatoon v State of Bihar (1979) Cr L
J 1045). The Constitution, in a number of provisions, warrants the separation of the judiciary from the executive as an overriding
goal to ensure judicial independence in a functional sense. It contains explicit provisions for the independence of the lower
judiciary. The HCD is authorised to administer, control, and supervise all subordinate courts (Art. 109). Articles 115 and 116
mandate the President to establish subordinate courts and appoint their judges and magistrates in consultation with the SC and
pursuant to appropriate rules. Article 116A affords independent competence to all subordinate court judges in the exercise of their
judicial functions. All these constitutional provisions purport to establish an orderly system of judicial hierarchy in which
subordinate courts remain accountable to the SC and not to the executive. The lower judiciary has an unequivocal mandate for its
independence under Articles 109, 115, 116 and116A of the Constitution. Yet the President appointed subordinate court judges and
magistrates through the Law and/or Home Ministry without adhering to the constitutional safeguard of consultation with the SC.
The executive asserts absolute control over the lower judiciary, especially the magistracy, which enjoys little independence in
performing judicial functions. The magistrates are an integral part of, and subordinate to, the executive. They serve only during the
pleasure of the executive and have no choice but to carry out executive directives. The public prosecution department has been
highly politicized, which in collusion with the magistracy kept the rule of law and judicial impartiality at bay for many years.
Frequent government interference with lower court proceedings on political grounds and their use as a political weapon through
undue favour in promotions and transfers, adjournment of hearings, release of accused persons, and withdrawal of cases on
political grounds are rampant. The national committee for reviewing and recommending the withdrawal of 'politically motivated'
cases recommended 7,177 such cases since 2009 for withdrawal. Recently, it has selected 170, including 30 murder, cases for
review without following the mandatory due procedure of referral from district committees headed by deputy commissioners
(Daily Star, 6 August 2013). Only competent trial courts, not the executive, should have the authority to order the adjournment of
pending cases and the release of accused persons. Such executive interference subverts justice by undermining the provision for
'public trial by an independent and impartial court' under Article 35(3) of the Constitution and impairs the public image of the
lower judiciary.
By virtue of its authority under Article 109 of the Constitution, the HCD occasionally takes disciplinary actions against judges
upon specific complains. But a great incongruity exists between the extent of actual irregularities and disciplinary actions taken so
far. The reasons for such inaction are attributable to the weakness of the judicial supervisory system and negligence of the Law
Ministry to proceed on complaints lodged. From this viewpoint the supervisory role of the HCD in combating misfeasance and
minimising delays in the adjudication procedure in the lower judiciary is not adequate enough to restore and maintain public
confidence in the administration of justice. An example of this inadequate supervision is the implementation of the Code of
Conduct formulated for the lower judiciary in 1988 by the Law Ministry with the approval of the SC. This brief code sets
acceptable standards for nearly all judicial ethics and morality, personal integrity of judges, impartiality and complete submission
to the constitutional rule of law in the judicial decision-making. The judges are required (a) to observe a very high standard of
personal integrity and the constitutional rule of law (code 2); (b) to provide patient hearing to all parties (code 3); (c) to maintain
impartiality under all circumstances (code 4); (d) to remain above political pressures and ideological influences (codes 9 and 14);
and (e) to avoid unnecessary delay (code 10). The end in view is to serve the interest of justice and portray a credible image of the
lower judiciary in the community (preamble of the Code). In practice though, the code is more often than not ignored for want of

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its strict enforcement. The basic compliance problem is that the current supervision arrangement, particularly the case of
overseeing the activities of the lower judiciary on a case specific basis, is not working satisfactorily. Activities contrary to the code
are rampant in subordinate courts, one of the principal reasons for the erosion of public confidence in the judiciary. One possible
way of monitoring the activities of the lower judiciary and enforcing its compliance with the code may be the creation of a body of
three judges from the HCD with mandate to report all anti-code conducts of the lower court judges and recommend disciplinary
action against them. The publication of codes of conducts through public media would help the litigants to demand just behaviour
from the persons involved in the adjudication procedure of their litigation. The social accountability of judicial conducts may be
enhanced through press freedom. The press could be the best watchdog to effectuate judicial accountability to the public. The
degree of public confidence in the judiciary is contingent upon the public perception of the integrity and transparency of its
decision-making process. Judges must be able to defend and explain the ways in which they exercise their judicial powers. Fair
and ethical press reporting on the prevalent impropriety of the lower judiciary would be of much help to warn its judges to be
honest and sincere, thereby helping restore public confidence. In Australia, all judicial functions are open to public scrutiny. Lord
Denning justified such public accountability: 'In every court in England you will ... find a newspaper reporter. He notes all that
goes on and makes a fair and accurate report of it. He is ... the watchdog of justice. The judges will be careful to see that the trial is
fairly and properly conducted if he realises that any unfairness or impropriety on his part will be noted by those in Court and may
be reported in the press. He will be more anxious to give a correct decision if he knows that his reasons must justify themselves at
the Bar of public opinion (The Road to Justice (1955) p 64). It is imperative that Bangladesh respects the press as an effective
means of public scrutiny of lower judicial conducts. Attempts at strict regulation of the press through the contempt proceedings
under dubious circumstances have already caused public concern. The judiciary need not be obsessed with the contempt actions in
an attempt to insulate itself from constructive press criticisms. Continuous practice of judicial immunity from criticisms through
contempt proceedings considerably diminishes public confidence in the judiciary. Good governance calls for a balanced judiciary,
which is both independent and accountable in exercising its judicial powers. Public criticisms are not to be seen inimical to judicial
independence. Greater judicial independence calls for specific measures to promote it. Judicial accountability to maintain and
enhance public trust in the judiciary comes foremost among these measures. Judicial independence and accountability are mutually
complementary in that the former consolidates and endures when the latter strengthens and enforces.
The appointments of judges in the lower judiciary should be made by the Judicial Service Commission (JSC) on the basis of merits
and experience. There should be specific criteria for the promotion of judges, not merely on the basis of their seniority. In addition
to the length of service, activity reports especially on how many cases he/she disposed of on yearly basis and how many of them
were reversed on appeal or revision should be taken into account. Publications in professional journals may also be counted in
order to ensure that judges acquire the cutting-edge knowledge by familiarising themselves with the judgments of other
jurisdictions and juristic writings. The time and cost effective management of cases to reduce the chronic delay in the disposal of
cases and to render the justice system available to all is especially crucial in the context of the Bangladesh. These inclusive criteria
for promotion, if followed routinely, would make the judges self-regulatory and help them remain on the right track.
The high cost of litigation, frequent shifting of hearing dates and adjournments, harassment by lawyers, and the complicated
process are quite intimidating for the common people generally and vulnerable and marginalised (poor, women, and minorities)
particularly in accessing justice in lower courts. Difficulties in accessing National Legal Aid and Services Organisation are almost
insurmountable. Of the cases brought to trial, conviction rate is extremely low (about 10%) often due to corruption, which remains
the leading cause of denial of justice in lower courts (NHRC Survey in Daily Star 24 December 2011, p 27). It is imperative for the
lower judiciary to address these problems of access to justice and for its judges to remain above any corrupt conducts. A mandatory
system of periodic review of the financial, moveable and immovable assets of a judge from the beginning of his/her tenure may be
put in place. Any noticeable disparity between the valid sourced incomes and undue enrichment could be a ground for triggering an
inquiry to be conducted by the proposed body of the HCD judges. Disciplinary action has to be initiated based on the finding of the
investigation after giving the judge an opportunity for self-defence, if any ex facie irregularity is found. Concurrently, he/she
should be tried in the ordinary court of criminal law. Historically, adherence to the due process of law and justice in the
performance of executive functions is almost non-existent in Bangladesh. There is a great deal of executive interest at stake in the
separation of the judiciary. The maintenance of a dependent judiciary has been politically expedient for the executive. It is
therefore unlikely that the initiative would come from any executive government. It is indeed the judiciary itself that has been
instrumental in forcing the executive to formally proclaim the separation of the judiciary in the aftermath of the Masdar Hossain
case. There appears to be no palatable alternative other than further higher judicial tenacity and activism in contriving ways to
ensure the constitutionally entrenched separation and independence of the lower judiciary. Shagging-off this popular expectation
and constitutional requirement may fuel a public confidence crisis in the judiciary and might be paradoxical to its status as the
guardian of the Constitution.
The High Court Division held in favor of Masdar Hossain and the other judges, and
after the Government appealed this decision and lost, the Appellate Division affirmed
the High Courts judgment. In this judgment, the Appellate Division affirmed that a
separate Judicial Service should be established, distinct from the Executive and
Administrative Cadres of the Bangladesh Civil Service. It also noted that this separate
Judicial Service should include both persons in judicial service and magistrates
exercising judicial functions. It stated that these two categories formed a class distinct

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from other services of the Republic, and that they could not be treated alike or merged
or amalgamated with any other service, except a service of an allied nature. In
consequence, the Court held that the Governments inclusion of judicial officers within
the Bangladesh Civil Service (Reorganization) Order 1980 as the Bangladesh Civil
Service (Judicial) was beyond the terms of the Constitution.
The judgment contains twelve specific directions on the Government for measures to ensure separation of the judiciary, by creating
a new Judicial Service to include the magistracy. These directions, among others, required the Government:

to set up two separate bodies, the Judicial Service Commission (JSC) (to recruit persons in judicial service, including
judicial magistrates), and the Judicial Pay Commission (JPC) (to fix pay scales for members of the judicial service),
specifying the nature of their composition, powers and functions.

to frame and bring into force four sets of rules relating to the establishment of the JSC (for recruitment of members of the
Judicial Service), establishment of the JPC (for fixation of their pay and benefits), for ensuring the manner of the
Constitution, composition, recruitment and suspension of members of the service, and for ensuring matters relating to
posting, promotion, and other service conditions.

for the purpose of incorporating magistrates within the judicial service, to frame amendments to the Code of Criminal
Procedure and other laws that empower Magistrates to try criminal cases, so that all references to Magistrate in existing
laws would be replaced by the term Judicial Magistrate.

The twelve Masdar Hossain directions

1. It is declared that the judicial service is a service of the Republic within the meaning of Art. 152(1) of the Constitution,
but is a functionally and structurally distinct and separate service from civil executive and administrative services of the
Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated,
abolished, replaced, mixed up and tied together with civil executive and administrative services.
2. It is declared that the word appointments in Art. 115 means that it is the President can create and establish a judicial
service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that
behalf, make rules regulating their suspension and dismissal under Art. 115 but Art. 115 does not contain any rule-making
authority with regard to other terms and conditions of service and that Art. 133 of the Constitution and the Services
(Reorganizations and Conditions) Act, 1975 have no application on the above matters in respect of judicial functions.
3. It is declared that the creation of BCS (Judicial) cadre along with the other BCS executive and administrative cadres by
the Bangladesh Civil Service (Reorganization) Order, 1980 with amendment of 1981 is ultra vires the Constitution. It is
also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service.
4. The appellant and other respondents to writ petition are directed that necessary steps should be taken forthwith for the
President to make Rules under Art. 115 to implement its provisions which are a constitutional mandate and not a mere
enabling power. It is directed that 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. They are further directed
that either by legislation or by framing Rules under Art. 115 or by executive order having the force of Rules, a Judicial
Services Commission should be established forthwith with majority of members from higher judiciary of the Supreme
Court and subordinate courts for recruitment to the Judicial Service on merit with the objective of achieving equality
between men and women in the recruitment.
5. It is directed that under Art. 133 law or rules or executive orders having the force of Rules relating to posting, promotion,
grant of leave, discipline (except suspension and removal), allowances, pension (as a matter of right, not favor) and other
terms and conditions of service, consistent with Arts. 116 and 116A, as interpreted by us, be enacted or framed or made
separately for the judicial service and magistrates exercising judicial functions keeping in view of the constitutional status
of the said service.
6. The impugned orders in the writ petition dated 28 Februay 1994 and 2 November 1995 are declared to be ultra vires the
Constitution for the reasons stated in the judgment. The appellant and the other respondents to the writ petition are
directed to establish a separate Judicial Pay Commission forthwith as a part of the Rules to be framed under Art. 115 to
review the pay, allowances and other privileges of the judicial service which shall convene at stated intervals to keep the
process of review a continued one. The judicial service shall follow the recommendations of the Commission.

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7. It is declared that in exercising control and discipline of persons employed in judicial services and magistrates exercising
judicial functions under Art. 116, views and opinion of the Supreme Court shall have primacy over those of executives.
8. The essential conditions of judicial independence in Art. 116A, elaborated in the judgment, namely, (1) security of tenure,
(2) security of salary and other benefits and pension and (3) institutional independence from the Parliament and the
Executive shall be secured in the law or rules made under Art. 133 or in executive orders having the force of Rules.
9. It is declared that the executive Government shall not require the Supreme Court of Bangladesh to seek their approval to
incur any expenditure on any item from the funds allocated to the Supreme Court in annual budgets, provided the
expenditure incurred falls within the limit of sanctioned budgets, as more fully explained in the body of the judgment.
Necessary administrative instructions and financial delegations to ensure compliance with this direction shall be issued by
the Government to all concerned including the appellant and other respondents to the writ petition by 31 May 2000.
10. It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal. The
declaration of the High Court Division to the opposite effect is set aside.
11. The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further
constitutional amendment is necessary is set aside. If the Parliament wishes so, it can amend the Constitution to make the
separation more meaningful, pronounced and effective.
12. 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] as on 8 January 1994 vide paragraph 3 of the order of the same
date and also by the further directions of the High Court Division in respect of Assistant Judges and Senior Assistant
Judges. If pay increases are affected in respect of other services of the Republic before the Judicial Pay Commission gives
its first recommendation, the members of judicial services will get increases in pay etc. commensurate with their special
status in the Constitution and in conformity with the pay etc. that they are presently receiving.
The writer is Professor of Law, Macquarie University, Sydney, Australia.
Separation of powers: Concept and reality
The concept of separation of powers has played a major role in the formation of constitutions. The extent to which powers can be
and should be separate and distinct was a central feature in formulating, for example, both the American and French revolutionary
constitutions. In any state, three essential bodies exist: the executive, the legislature and the judiciary. It is the relationship between
these bodies which must be evaluated against the backcloth of the principle. The essence of the doctrine is that there should be,
ideally, a clear demarcation in function between the legislature, executive and judiciary in order that none should have excessive
power and that there should be in place a system of checks and balances between the institutions.
In The Politics, Aristotle proclaimed that: "There are three elements in each constitution in respect of which every serious lawgiver
must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the
differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the
deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element."
The constitutional seeds of the doctrine were thus sown early, reflecting the need for government according to and under the law, a
requirement encouraged by some degree of a separation of functions between the institutions of the state.
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.
Political thinkers did not mean that the legislature and the executive should have no influence over the other but rather that neither
should exercise the power of the other. It was considered that the executive and the legislature should be sufficiently separate to

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avoid 'tyranny', and that their total separation may potentially lead to the domination of the executive by the legislature. It was
opined that partial separation of powers was required to achieve a mixed and balanced constitutional structure. It was thought that
constitutional arrangements characterised by powers and personnel being largely -- but not totally -- separated with checks and
balances in the system to prevent abuse, that is, mixed government and weak separation of powers would be desirable.
The executive may be defined as that branch of the state which formulates policy and is responsible for its execution. In formal
terms, the sovereign is the head of the executive. The judiciary is that branch of the state which adjudicates upon conflicts between
state institutions and individuals. The judiciary is independent of both parliament and the executive. It is this feature of judicial
independence which is of prime importance both in relation to government according to law and in the protection of liberty of the
citizen against the executive.
Bangladesh scenario: "The Constitution of Bangladesh exhibited a very impressive, pragmatic and sound system of governance of
which the Supreme Court was a valiant guardian. A testimony to this is the case of Secretary of Finance vs. Masdar Hossain
(20BLD[2000] [AD] 141) where the Supreme Court painstakingly laid down twelve directions to give meaning, shape and thrust
to the requirements of the Constitution in the matter of separating the judiciary from the executive."
The historic twelve directions
(1) It is declared that the judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it
is functionally 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 par on any account and that it cannot be amalgamated, abolished, replaced,
mixed up and tied together with the civil executive and administrative services.
(2) It is declared that the word "appointments" 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 in that behalf, make rules regulating their suspension and dismissal but Article 115 does not contain any rule-making
authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the Constitution and the
Services (Reorganisation and Conditions) Act, 1975 have no application to the above matters in respect of the judicial service and
magistrates exercising judicial functions.
(4) The appellant and the other respondents to the writ petition are directed that necessary steps be taken forthwith for the President
to make Rules under Article 115 to implement its provisions which is a constitutional mandate and not a mere enabling power. It is
directed that the nomenclature of the judicial service shall follow language of the Constitution and shall be designated as the
Judicial Service of Bangladesh or Bangladesh Judicial Service. They are further directed that either by legislation or by framing
Rules under Article 115 or by executive order having the force of Rules a Judicial Services Commission 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.
(5) It is directed that under Article 133 law or rules or executive orders having the force of 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 as interpreted by us, be enacted or framed or made
separately for the judicial service and magistrates exercising judicial functions keeping in view constitutional status of the said
service.
(6) The impugned orders in the writ petition dated 28. 02.94 and 2.11.95 are declared to be ultra vires of the Constitution for the
reasons stated in the judgment. The appellant and the other respondents to the writ petition are 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 which shall convene at stated intervals to keep the process of review a continued one. The pay etc.
of the judicial service shall follow the recommendations of the Commission.
(7) 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 Supreme Court shall have primacy over those of the Executive.
(8) The essential conditions of judicial independence in Article 116A, elaborated in the judgment, namely, (1) security of tenure,
(2) security of salary and other benefits and pension 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.
(9) It is declared that the executive government shall not require the Supreme Court of Bangladesh to seek their approval to incur
any expenditure on any item from the funds allocated to the Supreme Court in the annual budgets, provided the expenditure
incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment. Necessary

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administrative instructions and financial delegations to ensure compliance with this direction shall be issued by the government to
all concerned including the appellant and other respondents to the writ petition by 31.05.2000.
(10) It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal. The declaration
of the High Court division to the opposite effect is set aside.
(11) The declaration by the High Court Division that for separation of the Subordinate Judiciary from the executive no further
constitutional amendment is necessary is set aside. If the Parliament so wishes it can amend the Constitution to make the
separation more meaningful, pronounced, effective and complete.
(12) 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 as on 8.1.94 vide paragraph 3 of the order the same date and also by the further
directions of the High Court Division in respect of Assistant Judges and Senior Assistant Judges. If pay increases are affected in
respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation, the members of the
judicial service will get increases in pay etc. commensurate with their special status in the Constitution and in conformity with the
pay etc. that they are presently receiving.
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.
Muhammad Nurul Huda is a former Secretary and IGP.