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Masdar Hossain Case

Independence of the judiciary (also judicial independence) is the principle that the judiciary should be politically insulated from the legislative and the executive power is subsumed under the Article 14 of the International Covenant on Civil an Political Rights. The constitutional provision of a judicial branch of government, and the formal assurance that it is separate and independent of the other branches, represents the main way by which most states seek to comply with the principles contained in the Constitution.

The landmark decision of Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82 was determined on the issue that to what extent the Constitution of the Republic of Bangladesh has actually ensured the separation of judiciary from the executive organs of the State. In essence, the case was decided on the issue of how far the independence of judiciary is guaranteed by our Constitution and whether the provisions of the Constitution have been followed in practice.

In 1995 by a writ petition number 2424 Masder Hossain along with 441 judicial officers who were judges in different civil court? Alleged inter alia that:

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. Subordinate Judiciary forms chapter II of the PART VI (THE JUDICIARY) of Constitution and thereby the Subordinate Judiciary has already been separated by the Constitution. Only the rules under Article 115 of the Constitution and/or enactments, if necessary, are required to be made for giving full effect to this separation of judiciary.

iii. Judges of the subordinate Judiciary being the presiding judges of the courts cannot be subordinate to any tribunal and as such. The judicial officers are not subject to the jurisdiction of the Administrative Tribunal.

The court delivered it’s historic judgment with 12 directive points on 7th May 1997 ( reported in 18 BLD 558) . The Government preferred an appeal by leave (Civil Appeal No. 79/1999) and the Appellate Division partly reversed the decision of the High Court Division by its judgment delivered on 2nd December 1999 (reported in 52 DLR 82) .In the said land mark ruling in 1999 what is popularly known as the Masdar Hossain case, 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 Supreme court. 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.

On an extensive examination of constitutional provisions relating to subordinate courts (article 114-116A) and services of Bangladesh (article 133-136), the Appellate Division held that “judicial service is fundamentally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.” (Para 76).

It also directed the government for making separate rules relating to posting, promotion, grant of leave, discipline, pay, allowance, pension and other terms and condition of the service consistent with article 116 and 116A of the constitution.

However, in delivering judgment, the court made an attempt to differentiate between the terms 'independence' and 'impartiality' and said obiter that they would subscribe to the view of a leading decision of Supreme Court of Canada in Walter Valente v Her Majesty the Queen (1985) 2 SCR 673, on protection of judicial independence under section ii (a) of the Canadian Charter of Rights and Freedoms.

Walter Valente held that "the concepts of 'independence' and 'impartiality', although obviously related, are separate distinct values or requirements.’Impartiality' refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. 'Independence' reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status or relationship to others … particularly to the executive branch of government …"

As a matter of fact, the independence of judiciary and the impartial judicial practice are related concepts, one cannot sustain without the other. What is the point of having a judiciary, which is though independent but fails to appreciate the notion of impartiality or vice versa, can judiciary practise impartiality if it is dependent on other bodies of the government? In both the situation, the end-result is bound to be the same - miscarriage of justice.

 Bangladesh Supreme Court Bar Association played a significant role to implement this landmark judgment.

The last Caretaker Government taking a positive stance to separate the judiciary from the executive based on the constitutional directive principles and Appellate Division's judgment in the Masder Hossain's Case. Accordingly 4 service rules namely

(a) Bangladesh Judicial Service Commission Rules, 2007,
(b) Bangladesh Judicial Service (Pay Commission) Rules 2007,
(c) Bangladesh Judicial Service Commission (Construction of Service, Appointments in the Service and Suspension, Removal & Dismissal from the Service) Rules, 2007 and
(d) Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Discipline and other Condition of Service) Rules, 2007 have been enacted and changes were bought in the existing Code of Criminal Procedure 1898 by Ordinance No II and No. IV of 2007. This is considered to be a major change paving the way for dispensation of Criminal Justice at the level of magistracy by the officers belonging to Bangladesh Judicial Service and thereby removing all impediments in the separation of Judiciary from the executive control. Finally the throughout a virtual journey the judiciary is separated from the executive. And started functioning from 01, November 2007 independently.

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