Separation of Judiciary

Judicial Separation
Of Bangladesh
Written By Md. Mahbubul Karim
Student of LL.B
Stamford University, Bangladesh
E-mail: statesman_mahbu@yahoo.com
Introduction
In a democratic state, the power rests on three separate organs,

namely the executive, the legislature and the judiciary. The
constitution of Bangladesh vests the executive power in the executive
and the legislative power in parliament. Though there is no specific
vesting of judicial power, it is vested in the judiciary; the judiciary
comprises all courts and tribunals, which performs the delicate task of
ensuring rule of law in the society. A social structure remains coherent
and cohesive with the aid of a sound judicial system. Judiciary
redresses the grievances of the people and resolves disputes. The
dysfunction of judiciary impacts more severely than that of any other
institution as it removes from the mind of people the sense of
attachment with the society. In Bangladesh the Judicial norms and
practice have been derogating for years. Recently a number of
allegations have mounted surrounding judiciary.
Independence of Judiciary
Independence of judiciary means a fair and neutral judicial system of a
country,
This can afford to take its decisions without any interference of
executive or legislative branch of government. Taking into
consideration some of the recent discussions made in the Beijing
Statement of Independence of the Judiciary (a statement resulting from
the cumulated views of thirty-two Asian and Pacific Chief Justices)
Judicial independence is defined, in this report as a Judiciary
uninhibited by outside influences which may jeopardize. The neutrality
of jurisdiction, which may include, but is not limited to, influence from
another organ of the government (functional and collective
independence), from the media (personal independence), or from the
superior officers (internal independence).
Independence of judiciary truly means that the judges are in a position

to render justice in accordance with their oath of office and only in
accordance with their own sense of justice without submitting to any
Separation of Judiciary In Bangladesh

kind of pressure or influence be it from executive or legislative or from
the parties themselves or from the superiors and colleagues. The
concept of judicial independence as recent international efforts to this
field suggests, comprises
Following four meaning of judicial independence:
1. Substantive Independence of the Judges: It referred to as functional or decisional

independence meaning the independence of judges to arrive at their decisions without
submitting to any inside or outside pressure;
2. Personal independence: That means the judges are not dependent on government in
any way in which might influence them in reaching at decisions in particular cases;
3. Collective Independence: That means institutional administrative

and financial independence of the judiciary as a whole vis-à-vis
other branches of the government namely the executive and the
legislative; and
4. Internal Independence: That means independence of judges from

their judicial superiors and colleagues. It refers to, in other words,
independence of a judges or a judicial officer from any kind of order,
indication or pressure from his judicial superiors and colleagues in
deciding cases
Independence of judiciary depends on some certain conditions like

mode of appointment of the judges, security of their tenure in the
office and adequate remuneration and privileges. Satisfactory
implementation of these conditions enables the judiciary to perform its
due role in the society thus inviting public confidence in it.
“Independence of the judiciary”, it is maintained, “lends prestige to the
office of a judge and inspires confidence in the general public”.

Separation of the Judiciary
Separation of the judiciary has been argued both as a cause and a

guardian of
Formal judicial independence. The concept of separation of the
judiciary from the executive refers to a situation in which the judicial
branch of government acts as its own body frees from intervention and
influences from the other branches of government particularly the
executive. Influence may originate in the structure of the government
system where parts or all of the judiciary are integrated into another
body (in the case of Bangladesh: the executive). For example, in
Bangladesh the president in consultation with the Supreme Court
according to the constitution, appoints judicial officers other
circumstances include functional aspects of the judicial system when
the administration of justice is in some way, affected by executive
orders or actions.Executive abuse of this constitutional order result in
biased appointment of judges, and other officers of the judicial cadre,
favoring individuals who support the governing political party. Dr.
Kamal Hossain, a respected advocate of the Supreme Court, explains
the concept of separation of the judiciary through the idea of double
standards. An executive officer follows plans, which are of a vertical
nature, with the higher offices guiding the decisions of the lower
officers, who look for the best possible ways to further
The plans established by those higher in the pecking order. Executive

decisions are made in lines of policy; law is not a policy. Judges or
magistrates performing judicial functions must examine what evidence
is given and find a way to best apply it to the law; there is less room for
an individual’s perceptions in judicial decisions.
Complete separation is relatively unheard or outside of theory,

meaning no judiciary is completely severed from the administrative
and legislative bodies because this reduces the potency of checks and
balances and creates inefficient communication between organs of the

state. A high degree of separation, however, can be a strong guardian
of judicial independence, as this paper will attempt to prove.
The constitution of Bangladesh is the first defense of judicial

independence, presiding over all the “Republic’s affairs and framing
the organization and administration of the government. While
constitutional flows exist, regarding separation of the judiciary, there
are adequate provisions for formal judicial independence.
Judicial Independence in the Constitution
Part VI of the constitution deals with the judiciary. Art. 7 provide that all
powers in the Republic shall be effective only under and by authority of
the constitution. The responsibility of seeing that no functionary of the
state oversteps the limit of his power is a necessity, on the judiciary.
Art. 35(3) of the constitution provide “Every person accused of a

criminal offence shall have right to a speedy and public trial by an
independent and impartial court or tribunal established by the law.
Article 116A provides for independence in the subordinate judiciary

while Article 94(4) demands independence of the Supreme Court
Judges. Article 116A, while requiring judicial independence, was part of
the detrimental changes to the constitution made in 1974 and 1975
discussed later in the paper: Subject to the provisions of the
constitution, all persons employed in the judicial service and all
magistrates shall be independent in the exercise of their judicial
functions.
Separation of the Judiciary in the Constitution

The judicial independence of all judicial officers is unconditional
according to the constitution of Bangladesh. This ideal is protected
primarily through the concept of separation of the judiciary from the

other organs of government. Article 22 states directly and
unquestionably: The state shall ensure the separation of the judiciary
from the executive organs of state. Article 95(1) addressed the method
of appointment for the Supreme Court: the president shall appoint The
Chief Justice and other Judges. The appointment and control of judges
in the subordinate judiciary (judicial service) are described in Articles
115 and 116 stating respectively: Appointment of persons to offices in
the judicial service or as magistrates exercising judicial be made by the
President with the rules made by him in that behalf. The control
(including the power of posting, promotion and grant of leave) and
discipline of persons employed in the judicial service and magistrates
exercising judicial functions shall vest in the President and shall be
exercised by him in consultation with the Supreme Court. It is
principally through the above articles that the executive branch has
been able to gradually intrude upon and influence the judiciary in
Bangladesh, creating enormous problems regarding the quality of
jurisdiction and the extent of judicial independence. Recently,
separation of the judiciary from the executive has been argued as a
necessity based on the unconstitutionality of the present organization
and while this may well be true, it appears to be he consequential
improved functional independence of the judiciary that is the
fundamental reason for separation with unconstitutionality being only
an argument to ensure its enactment.
Why Need Separated Judiciary
In order to promote accountability of government, hinder corruption

and protect the fundamental freedoms of citizens from the will of the
government of the day, it is essential to keep separate the Parliament’s
power to make laws, from the Executive’s power to administer laws,
and from the Judiciary’s power to hear and determine disputes
according to the law. This separation is designed to protect the people
from a concentration of power, and the ability of individuals or groups
to manipulate government for personal gain and to ignore the will of
the people

A true separation of government powers is essential to ensure the
accountability of government, hinder corruption and protect the
fundamental freedoms of citizens against the will of the government.
Each branch of government must be, and be seen to be, free to act as
a check and balance on the other without fear or interference.
There are three distinct activities in every government through which

the will of the people are expressed. These are the legislative,
executive and judicial functions of the government. Corresponding to
these three activities are three organs of the government, namely the
legislature, the executive and the judiciary. The legislative organ of the
state makes laws, the executive enforces them and the judiciary
applies them to the specific cases arising out of the breach of law. Each
organ while performing its activities tends to interfere in the sphere of
working of another functionary because a strict demarcation of
functions is not possible in their dealings with the general public. Thus,
even when acting in ambit of their own power, overlapping functions
tend to appear amongst these organs.
The question which assumes significance over here is that what should
be the relation among these three organs of the state. Whether there
should be complete separation of powers or there should be co-
ordination among them.
An analysis into these three organs and the relations between them is
to be done with the experience in different countries along with India
which will give a clear idea about this doctrine and its importance in
different Constitutions.
Today all the systems might not be opting for the strict separation of
powers because that is undesirable and impracticable but implications
of this concept can be seen in almost all the countries in its diluted
form.
It is widely accepted that for a political system to be stable, the holders

of power need to be balanced off against each other. The principle of
separation of powers deals with the mutual relations among the three

organs of the government, namely legislature, executive and judiciary.
This doctrine tries to bring exclusiveness in the functioning of the three
organs and hence a strict demarcation of power is the aim sought to be
achieved by this principle. This doctrine signifies the fact that one
person or body of persons should not exercise all the three powers of
the government.
Steps for Separation of Judiciary

The first attempt was taken after the division of the sub-continent in
1947,
Pakistan government enacted East Pakistan (then Bangladesh was
under Pakistan government) Act No. XXIII of 1957, which provided for
separation of judiciary from the executive. The law was still hanging for
a simple gazette notification. As regards independence and separation
of judiciary, our constitution of 1972 is fairly developed. But the
framers of Supreme Law of the land made an unfortunate insertion in
article 115 and 116 as ‘Magistrates exercising judicial functions’, which
still. Remain unattended. Art 22 in unequivocal term states that ‘the
state shall ensure the separation of the judiciary from the executive
organs of the state’ as one of the fundamental principles of state
policy. It is not readily judicially enforceable. Nevertheless the state
cannot ignore it for long. There was under current of demand of
implementation of constitutional obligation from the very inception of
Bangladesh. But the Fourth Amendment undermined the
constitutionalism itself, which obviously destroyed the independence of
judiciary. The subsequent upheavals of politics rather by passed it. In
1976 law commission recommended that subordinate judiciary on the
criminal side should be separated from the executive.
In the mean time, we witnessed two extra-constitutional processes. In

1987, initiatives were taken to separate the magistracy by amending
code of Criminal Procedure, 1898. For unknown reason the Bill could
not placed before the Parliament. After the fall of autocratic rule in
1990, exception was high to ensure separation of judiciary. But the
next two governments of 1991 & 1996 did nothing in this regard
except spoiling its tenure. In 1999, the Supreme Court issued 12-point
directives in famous Mazdar Hossain case to ensure separation of
judiciary from the executive. The successive governments have taken

time again and again to delay the process. It may be recalled that the
caretaker government (2001) has all measures to ensure separation
but stop at their quest of AL and BNP two major parties of the country.
The BNP leaded coalition government is working very slowly towards
separation of judiciary. It is a pleasure that Judicial Service Commission
and Judicial Pay Commission have been created various rules and
amendment in the relevant sections of code of Criminal Procedures
1898 are under consideration of parliament of late the law. Just and
Parliamentary Affairs Minister announced that it would take additional
six years (!) to ensure separation of judiciary the
Daily Star 20.6.2004 this statement is reflective of how indifferent the
Government is about separation of judiciary. The demand separation of
the judiciary from the executive is universal to ensure the
independence of judiciary and safeguard the rights of the people. It is
quite unfortunate that the Government is moving towards at shail’s
pace.
Judiciary from the executive at all levels in 1973 and 1974 (in West
Bengal in 1970) respectively. Ensuring justice and independence of
judiciary will remain a far very until lower judiciary is separated from
the executive. It is mandatory and constitutional obligation of the
Government to ensure separation of the judiciary from the executive.
Five years have been clasped since the Supreme Court gives it
directives in Masdar Hossain case. Law Minister is seeking for
additional six years in this regard we can fairly questions how long will
it take to ensure separation of judiciary from the executive?
We may mention here some draft procedure to separation of judiciary

by the government at a glance:
1. The formation of Bangladesh Judicial Service, establishment of pay

commission, appointment in service and the procedures of
temporary dismiss and remove, 2001.
2. Bangladesh judicial service (ascertainment of field of service, giving
promotion, system of control and discipline including grant of
vacation and the term of service) procedures, 2001.
3. Judicial Service Commission Procedures, 2001.
4. The Code of Criminal Procedures, 1898 (Amendment) Ordinance,
2001

The Problems and Obstruction of Separation of
Judiciary from the Executive in
Bangladesh
The question of separation of the judiciary from the executive organ of

the state is not new for our judicial system. So far many erudite articles
written by highly intellectual persons of the relevant fields were
published in the leading newspapers of our country. But those
intellectual exercises have gone unheeded so far. There were of course
commitments of the political parties every time before the elections
were held (Rahman, 2004). We must seek the reasons why this very
important organ of the state has so far not been given the shape as
enunciated in the sacred constitution where the nation has solemnly

affirmed for an independent judicial system. I have point out here
some common problems.
Lack of Consciousness
Of the total people constituting the electorate of our country, I am
sure more than 10% voters do not know what actually is mean by the
separation of the judiciary and for that matter what is the bright side of
the proposed separated judicial system. To address these questions we
should have at least an average knowledge of our present judicial
system. Lack of consciousness people’s has no strong movement for
this reasonable and demandful wants.
Lack of Political Will

Any kind of meaningful changed, political will is mandatory because
our democratic polity deals by various political parties. And
Government formed by citizen’s mandate with their representatives.
So, if the political parties (both government and opposition) have no
interest to separate the judiciary from the executive it would be
impossible. Though most of the political parties have commitment to
separation of judiciary but after formation of government they
technically avoid the matters. That’s why the process of separation of
judiciary is going on endlessly.
Lack of Interaction with Other Courts

Lack of interaction of the judges in Bangladesh with their counterparts
in other countries is a possible factor for their insular understanding of
law. Of course, the courts’ scarce resources limit the opportunities for
such interaction. And, the very limited judicial interaction with foreign
courts, when it does occur is arranged in hierarchical order. This means
that older judges, who are usually less amenable to fresh ideas and
have less time left on the bench, undertake such interactions most
often, receiving the most limited results possible .
Lack of Strong Civil Society

Civil society now days play a very important role for any positive
change or form of a country. The civil society of Bangladesh is not so

strong that’s why they also failed to compel the government to
separate the judiciary from the executive.
Lack of Democratic Culture

We have reached upon 34th years of our independence from the
dictatorial and autocratic rule of Pakistan. In 1991 we claim to have set
up a democratic government. But we have so far made little progress
in practicing parliamentary culture. Our leadership instead of guiding
the nation toward setting up a strong parliamentary democracy has so
long been engaged in the politics of mutual hatred and vengeance.
Tolerance and respect for opposition party is now foreign in our politics.
Such intolerance and enmity between political parties have adversely
affected the nation as a whole and virtually has divided the nation into
some group antagonistic to each other. This inimical attitude of our
political parties has not only polluted the politics of our nation but has
created groupings among public servants in general and bureaucrats in
particular. Of late the highest judiciary has reportedly been politicized.
Executive Dominated Judiciary

Article 115 of the constitution: Appointments of persons in the judicial
service or as magistrates exercising judicial functions shall be made by
the President in accordance with rules made by him in that behalf. It is
noticeable in this article that the President with exercising this power is
not required to consult the Chief Justice of Bangladesh. We know that
the President cannot exercise his powers whatever, without the advice
of the Prime Minister, accept of course his power to appoint the Prime
Minister. This is how the executive organ of our state is controlling the
judiciary. Their appointments, postings, transfers, promotions,
punishments etc. are at the hands of the President or for that matter,
the government.
Lack of Popular Access to Justice
Unlike neighboring India, where legal aid, access to justice and
alternative dispute resolution were largely judge-pioneered initiatives,
the situation is completely different in Bangladesh. The very wide
powers of the highest court to deliver justice have been under-utilized.
Less than a dozen-suo moto case during the last ten years has
succeeded, perhaps reflecting judicial conservatism.
Overlapping Competencies

Often, executive branch ministries to work as their legal officers recruit
judges from the subordinate judiciary. Generally ministries do not have
legal officers of their own, and the public prosecution service is an
adhoc arrangement. Arguably, judicial independence is compromised
when a person acts as both a prosecutor and a judge. Law officers
have to defend government positions while judges might rule against
the government. A directive of the Masdar Hossain Judgment calls for
the roles of judges and prosecutor to be separated. Unfortunately, so
far this directive has not been carried out.
Corrupted lawmakers
The air of separation of judiciary is entering; side by side it has also
bad smell. Maximum judges and lawmakers are corrupted. The takes
bribe spontaneously and make the case diverted. It is a very common
phenomenon in our country. So if the independent judiciary is vested
upon the dishonest lawmakers, there must be disorders in law and
order situation of Bangladesh. Recently Transparency International of
Bangladesh (TIB) exposed the corruption of the lawmakers.
Government Negligence
The High Court Division of the Supreme Court of Bangladesh in a
judgment directed the government to take steps for separation of
judiciary from the executive organ quite a few years back. But the
government has so long remained headless and negligent to the High
Court Division’s directives. When the government itself does not honor
the highest court of the country, how can the people in general confide
in the judicial system and such underhand practice?
However, the government has sought, and the Appellate Division has
granted, a number of extensions in time (25 times) for the
implementation of the Supreme Court’s directives. Formally land
officially the government is committed to implementing these
directives, which would also include some changes in the criminal
procedural laws. However these repeated extensions suggest
continuing challenges to the ultimate implementation of University of
Rajshahi, Rajshahi the directives. It is strongly felt everywhere that

immediate steps are taken for separation of the judiciary from the
executive organ of the state.
Masder Hossain Case and A brief History of the

Separation of Judiciary in
Bangladesh
British Period

During the British rule there was a demand for separation of judiciary
form the executive. The British administration did not make this
separation thinking that separation might go against their colonial
interest. In 1919 the matter of separation of judiciary was raised in the
House of Commons but it was not discussed on the contention that it
was a matter within the jurisdiction of provincial government. In 1921 a
resolution regarding separation of judiciary was passed in the Bengal
Legislative Assembly which was followed by formation of a committee.
The committee reported that there was no practical problem in
separation. However, nothing more was done.
Pakistan Period
After separation and interdependence in 1947 no step was taken in
East Pakistan. The United Front includes the idea of separation in its 21
points formula in 1954. The firs6t Constitution in independent Pakistan
was adopted in 1956. Unlike the Government of India Act 1935 (Ss 253,
254, 255 & 156) and the Constitution of India (Art 233 to 237 in
chapter vı) this Pakistan Constitution of 1956 did not provide for any
provision regarding “subordinate courts” or “magistracy”; these were
to be regulating by the code of the CPC
& the CrPC. In 1957 the East Pakistan Provincial Assembly passed the
CrPC (East Pakistan Amendment) Act 1957 (No. 36) which dealt with
separation. However, this Act was never given effective. In 1958 the
Pakistan Law Commission recommended to bring the judicial
magistrates under the control of The High Court. In 1967 the Law
Commission again recommended to give effect to the CrPC Act 1957
(No. 36) though nothing was done until 1972. In the CrPC (East
Pakistan Amendment) Act 1957 (Act No .36 of 1957) an overhauling
amendment was made in the CrPC with a view to separating the
judicial and executive functions of the magistrate. A full discussion of
that amendment is beyond the scope of this work.
Bangladeshi Period
In 1972 after independence of Bangladesh the Constitution of the

People’s Republic of Bangladesh was adopted. Provision was made in
Art 22 in the Fundamental Principle of State Policy that the state shall

ensure the separation of the judiciary from the executive organ of the
state.
In 1976 a Law Committee headed by Justice Kemaluddin reported to
implement separation of lower judiciary in three stage which as
follows:
First Stage
The government may by notification appoint some particular
Magistrate at each station exclusively for judicial work. This can be
given effect without any additional expenses or administrative
difficulties.
Second Stage
This should be the nature of separation of judicial function form
executive as envisaged in the CrPC (East Pakistan Amendment) Act
1957 (Act No. 36).
Final Stage
The final stage would be not only complete separation of judicial

function form executive but also constitution of a separate integrated
judicial service under the control of the High Court Division for Civil and
Criminal work right up to the level of the District & session judge. The
committee also recommended that for creation of an integrated
judicial service. , it would be necessary to enact new legalization.
In 1987 by an amendment to the CrPC President Ershad prepared a bill
for separation of judiciary. However, the bill did not see the light of the
day. In Pakistan separation was done in 1973 and India in 1974 by an
amendment to the CrPC in 1990 the issue of separation of judiciary
was put into the manifesto of the Three- Party Alliance movement
against Ershad regime. In every election after 1990 both the BNP and
AL had avowed commitment un their manifesto that going to power
they would separate judiciary form the executive.
In 1991 a private member’s Bill by Mr. Salauddin Yusuf namely the

Constitution (14th amendment) Bill 1991 was introduced for further
amendment of Art 95, 98, ii5and 116 of the Constitution. The Bill was
sent to a select committee which had about 13 meeting to consider it.
The Bill tried to reinstate the provision of the 1972 original Constitution
envisaged by the constitution makers. The revised bill was submitted

in parliament in 1994. The comparison of the original bill and the
revised bill reveals that “the BNP has come out as the champion for the
4th amendment of the Constitution though it is the BNP which never
misses any opportunity to condemn AL for the 4th amendment of the
Constitution; however, nothing was done to pass the Bill. The Bill,
however, did not deal with anything about the separation of
subordinate judiciary. The government side did not accept any
proposal for amendment of Art 115 & 116 of the constitution. ‘By not
agreeing to restore the original provisions of Art 115 & 116 the
government has unmistakably demonstrated that they are opposed to
the separation of subordinate judiciary from the executive. Shekh
Hasina as the Prime Minister in the 7th parliament kept echoing her
commitment that she would do all for separation of judiciary. A
committee was formed headed by the secretary of Law and
Parliamentary Affairs Motin Khasru, the Law Minister stated t5hat a bill
for separation of judiciary from the executive was under way but
nothing more was done.
Masder Hossain's case

It has been more than five years since the historic judgment in Masder
Hossain's case, popularly known as 'separation of judiciary' was
pronounced in December 2, 1999 by the Appellate Division of the
Supreme Court. The Court directed the Government to implement its
12-point directives to separate judiciary from the clutches of the
executive. In this long period three governments- respectively have
sought extensions of times on one pretext or other as many as 18
times to implement the directives. Back in November 2004 the
Government sought for four months time, which was allowed by the
Court. However, on November 29, 2004 the Appellate Division had to
issue a show cause notice to nine Government officials to explain why
they would not be prosecuted for contempt of court for distorting the
judgment of the court and the rules approved by the court for
separation of judiciary. On 16th April, 2005 the matter came up once
again for the court to see the progress of the government with regard
to the implementation and to hear the contempt of those nine officials.
The Government asked for another four months extension. However,

the court extended time again till 17th October. But the question is
how long will this tactics of time extension continue? How long will be a
judgment of the Supreme Court matter of pull and haul at the hand of
government? Apart from this delaying tactics, in very recent past a
statement from governmental level pointed out that the separation of
judiciary was not a popular demand and the government may go for a
referendum on this issue. When such a statement is posed from the
Governmental level the legitimacy of the judgment of the apex court
itself comes under attack. What could be the reason behind such
delaying tactics and policy statement?
The reason lies, as I wrote back in 1998, with some provisions in the
original constitution of Bangladesh regarding the dependency
syndrome of the subordinate judiciary which has left the idea of
separation of judiciary largely a policy matter rather than judicial
determination. Under the express wording in article 112 of the
constitution all authorities, executive and judicial, in the Republic shall
act in aid of the Supreme Court. But when the Government states that
separation of judiciary is largely a policy matter; again it reiterates that
it will implement the judgment today or tomorrow what can the apex
court do? How long the arms of the apex court could go to catch the
wrongdoer or someone who is not obeying the judgment of the court or
undergoing delaying tactics? True it is that the Supreme Court of a
country cannot modify the course of history; neither can it catch hold
of and throttle someone who is disobeying its decision; it can only
pronounce judgments and refer to the other departments of the
government to execute it; if the executive disobeys its decision, it can
at best contempt someone but it does lack any real stick to beat the
executive. The machineries of democracy are not supposed to run in
that hostile manner; they are built on the concept of check and
balance and this balance is provided for in article 112 of the
constitution as far as the implementation of the Supreme Court's
decision is concerned which the executive must bear in mind. If the
executive flouts the decision of the apex court so will do the
beneficiaries of political parties leading the country into a land of
politico-legal anarchy. The judgment in Masder Hossain case by the
Supreme Court to direct the government to separate judiciary is not
something like a bolt from the blue. Since independence almost every
mainstream political party made pre-election pledge that if voted to
power, they would separate judiciary from the executive but every

government has betrayed with their pledge to this effect. It is pledged
in article 22 of the constitution that State shall ensure the separation
of the judiciary from the executive. Every Prime Minister and Minister
takes their oath of office that they will preserve, protect and defend
the constitution though the irony is that they quickly forget their
pledge leaving behind the poor litigants in an endless suffering. How
long will the people have to wait see the judiciary separate? In line with
the spirit in the part of the 'Directive Principles' of the constitution both
India and Pakistan have completed the task of separation of the
judiciary long ago compared to us. 33 years have passed since we
achieved our independence. If we still vaunt in a colonial mastery to
ourselves- "what will the court do if we do not separate the judiciary?",
will there be any merciful mystery angel to complete the task for us?
Lower judiciary: An acute dependency syndrome in Magistrates' Courts
Let me get back to the concept of dependency syndrome of the

subordinate judiciary particularly the magistrates' courts, which is the
main problem in ensuring independence and separation of the lower
judiciary.
Three tiers of Magistrates' Courts, i.e. 3rd Class, 2nd Class and 1st
Class Magistrates' Courts- all these are the courts of first instance for
criminal cases. Given that criminal cases filed in a year are far greater
in number compared to the number of civil cases, these criminal courts
have a great potential in shaping the base of our legal system.
However, unfortunately for reasons, principally, of some legal
shortcomings these courts are playing negative role at a greater extent
frustrating the very purpose of criminal justice. The shortcomings are
as follows:
i) All magistrates are linked with the executive functionaries.

Magistrates are discharging dual functions- judicial and executive. They
are controlled by the Ministry of Establishment, the Ministry of Home
Affairs and also the Ministry of Law, Justice and Parliamentary Affairs.
In discharging their judicial functions they are very often dictated and
influenced by the executive. As a result, they cannot independently
discharge their judicial functions. It is impossible for a judge to take a
wholly independent view of the case he is trying, if he feels himself to
any extent interested in or responsible for the success of one side or
the other. It is equally impossible for him to take an independent view

of the case before him if he knows that his posting, promotion and
prospects generally depend on his pleasing the executive hand.
ii) Magistrates who discharge judicial functions are never appointed

from persons with legal background. It is sometimes impossible to
expect justice from a person who has no institutional legal education.
Being administrative first class officers magistrates sometimes do not
care abusing their power. This is mostly the case because, firstly, they
are taking the opportunity of illiteracy and ignorance of law of mass
litigants and secondly, there is inherent lack of administrative check
and balance in magistracy and thirdly, they are not under any
administrative control of the Supreme Court.
iii) In almost all magistrates' courts bribes are now-a-days openly

claimed as a matter of right? Anyone defaulting has to pay a price at
his cost. In magistrates' courts bail depends not on law but on the
amount of bribes.
The main crux of the problem of separation of judiciary lies in the

magistrates' courts. Ensuring justice and independence of judiciary will
remain a far cry until magistrates' courts are separated from the
executive. The dual function of magistrates and also the dependency
of the lower judiciary upon the executive is a legacy of the British rule.
During the very British days there was a demand for the separation of
judiciary from the executive. The British administration did not make
this separation thinking that separation might go against their colonial
interest. After independence in 1947 though some positive steps were
taken, eventually they were not implemented.
In our new constitution adopted in 1972 it was provided in article 22

that "the state shall ensure the separation of judiciary from the
executive organ". In article 116 the term "magistrates exercising
judicial functions" have been used. Dr. Kamal Hossain the chairman of
the Constitution drafting committee stated that by the term
'magistrates exercising judicial function' the constitution makers
wanted to mean judicial type of magistrates and after the constitution
was given effect everybody took this term for judicial type of
magistrates but the government did not separate them. Ultimately the
matter of judiciary separation came as a judicial determining factor
before the Supreme Court in much-talked Masder Hossain case.

Conclusion:
In the Masder Hossain case as mentioned above the executive has
been ordered to undertake the task of overhauling the whole lower
judiciary with two big commissions- Judicial Service Commission and
Judicial Pay Commission which is certainly a matter of policy rather
than a dispute. However, there are strong evidences to show that our
Supreme Court has dealt with policy matter under the paradigm of
'judicial review' or the doctrine of 'basic structure' of the constitution
as we saw it in the celebrated 8th Amendment Case and this is not
something unsupported by the constitutional arrangement. It is true
that except appointing the Prime Minister and the Chief Justice the
President has to exercise every function in consultation with the Prime
Minister. However, a harmonious construction of articles 114, 115, 116
and 116A of the Constitution will give a necessary idea that in the
matter of subordinate judiciary the policy matter has not been left to
the sweet will of the parliament or the president alone; the executive
has to exercise its power in consultation with the Supreme Court in this
sphere. Under article 115 appointments in the subordinate judiciary are
to be made as per rules made by the President; article 116 envisages
that control and discipline of the subordinate judiciary have to be
exercised in consultation with the Supreme Court; and article 116A
envisages the independence of the judicial officials and magistrates.
Given this integrated scheme as designated in these articles if the
parliament or the President attempts to make law to separate judiciary
without involvement of the Supreme Court, which law will certainly
come under judicial attack? The task of separation of lower judiciary is
thus a shared responsibility of the executive, legislative and judiciary
as envisaged in articles 114 - 116A of the constitution and therefore
the government cannot claim it as a sole executive or legislative policy
prerogative. The best course for the government therefore would be to
implement the judgment of the Masder Hossain case without resorting
to any delaying tactics on the ground of policy matter or public
demand.
Supreme Court order on judiciary separation

Feb 19. 2007
The Supreme Court will pass its order on the separation of the judiciary
from the executive on February 19 after examining the Code of
Criminal Procedure (Amendment) Ordinance, which was promulgated
on February 11.
The attorney general, Fida M Kamal, on Wednesday placed a copy of
the ordinance before the full court of the Appellate Division.
After a four-minute hearing, the chief justice, Syed JR Mudassir Husain,
said the next order would be passed on February 19 upon scrutiny of
the ordinance.
The court also adjourned till February 19 the hearing of the contempt-
of-court proceedings against 13 bureaucrats, including four top-ranking
officials, for procrastination in the implementation of the 12-point
directive and for distorting the court's orders on the separation of the
judiciary.
The petitioner's counsel, M Amirul Islam, submitted an application to
the court, saying the sets of rules framed by the government on
judicial service and the ordinance still had some deviations from the
12-point directive and they should be corrected.
The interim government promulgated the Code of Criminal Procedure
(Amendment) Ordinance on February, making provisions for separate
judicial and executive magistracy.
Earlier on January 16, the government framed four sets of rules on
judicial service, taking the penultimate step for the separation of the
judiciary.
The ordinance and the four sets of rules will, however, come into effect
on the date the Appellate Division fixes.
The Appellate Division on December 2, 1999 issued the 12-point
directive, which will eventually separate the judiciary from the
executive, in its verdict on the government's appeal in Masder
Hossain's case, popularly known as 'separation of the judiciary case'.
Independence of judiciary
A dream comes true

The basic principles of the independence of the judiciary was endorsed
by UN General Assembly in 1985 and referred by the UN Office of the
High Commissioner for Human Rights as -- “The judiciary shall decide
matters before them impartially on the basis of the facts and in
accordance with the law, without any restrictions, improper influences,
inducements, pressures, threats or interferences, direct or indirect
from any quarter or for any reason”. Separation of judiciary from the
executive is the precondition for sound and independent judiciary.
Judiciary redresses the grievances of the people and resolves disputes.
The International Covenant on Civil and Political Rights (ICCPR), 1966
was also mentioned in Article 14(1) “In the determination of any
criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law”.
The judiciary has been defined as the last resort of the common
people. It is the sector that actually protects and harmonizes the
varying interest of the members of the society. The judiciary has been
the major recourse of the human rights community in the enforcement
of human rights. Litigation has been identified as one of the key means
of protecting and enforcing the rights of the individual. No other
institution of the state is bestowed with the duty but the courts and
other ancillary institutions. Most of the monumental achievements of
the human rights community the world ever have been through the
courts. The judiciary comprises of all institutions established there
under for the administration of justice to protect, vindicate and enforce
the rights of the people. The judiciary is charged with the responsibility
of dispensing justice and safeguarding the rule of law. In any civilized
society, judiciary is the last resort for the people to seek shelter and
get relief against the offenders and wrong doers.
Independence of judiciary means a fair and neutral judicial system

which can afford to take its decision without any interference of
executive or legislative organ of the government. Independence of
judiciary truly means that the judges are in a position to render justice
in accordance with their oath of office and only in accordance with
their own sense of justice without submitting to any kind of pressure or
influence be it from the executive or legislative or from the parties
themselves or from the superiors and colleagues. Independence of

judiciary depends on some certain conditions like mode of appointment
of the judges, security of their tenure in the office and adequate
remuneration and privileges.
The concept of separation of judiciary from the executive refers to a

situation in which the judicial branch of the government acts as its own
body free from intervention and influence from the other branches of
the government particularly the executive. Principle of separation of
powers is one of the vital elements of democracy. If the same
individual assumes the functions of both executive and judiciary the
necessary check and balance disappears and rights of the citizen are
not adequately protected. Separation of judiciary from the executive
universally ensures the independence of judiciary and safeguards the
rights of the people. It is impossible to ensure the rule of law, upon
which other human rights depend, without providing independent
courts and tribunals to resolve disputes independently. The complete
independence of judiciary is the first major step in the process of its
development. Without completing this, progress of work in other areas
is not likely to deliver the intended full benefits.
While the Westminster system had largely developed because of the

doctrine of separation of powers, our present system of government is
largely based on the Westminster. This doctrine of separation of
powers proposes that the three institutions of government, the
legislature, the executive and the judiciary should be exercised as
separate and independent branches. It is this doctrine that stresses the
need for the independence of the judiciary from the other two
government institutions in order to protect the freedom of individuals.
It is under this doctrine that no person can be a member of parliament
and a judge at the same time. The doctrine of separation of powers
offers several advantages: it proposes separate, specialized and
efficient branches of government and it also reduces the abuse of
government power by dividing it.
The constitution is the supreme law of the country and for Bangladesh,
the form of government has been spelled out in the constitution that it
will be a Republic. The constitution lays down specific functions of
different organs of the government. The judicial system in Bangladesh
has been a legacy of the judicial system as introduced by the British
during the colonial days. The parliament is supreme and the lawmakers
alone bring about any change by amending the constitution as and

when necessary. The Supreme Court has been authorized to interpret
the provision of the constitution as and when required. Judiciary helps
the government to carry out one of the functions of the state and in
doing so it should be able to function independently with no
interference from any quarter or under any influence of fear or favor
(Article 116A of the Constitution of Bangladesh).
The question of separation of judiciary from executive is not new in our

country. In fact, demand for separation of judiciary from executive had
been a part of the movement for democracy itself and its
implementation was part of the election pledges of both the major
political parties. With same origin like us, both Pakistan and India
separated their judiciary from the executive in 1973 and 1974,
respectively. We earned our independence in 1971. But we have set up
our democracy in 1991, after 20 years of independence. So far we
could do little progress as far as the implementation of separation of
judiciary is concerned. Article 22 of our constitution says, “The state
shall ensure the separation of the Judiciary from the Executive organ of
the state”. Separation of judiciary is included in Part II of our
Constitution, i.e. the fundamental principles of the state policy; and
Part V of the Constitution deals with the judiciary.
But unfortunately no government since 1972 when the constitution

was framed ever took steps to effect the separation. Finally in 1999
while delivering historic judgment in the famous 'Masder Hossain's
case', popularly known as 'separation of judiciary' the Appellate
Division of Supreme Court asked the government to take steps for
separation as per Article 22 of the Constitution. The Appellate Division
also gave 12 points directive or road map on how the separation
should be given effect to. The Caretaker Government (CG) of 2001 took
all measures to ensure the separation of judiciary, but stopped at the
request of both the major political parties, who expressed their desire
to implement once came to power. But unfortunately, it is not ensured
by the winning party within their full tenure. It has been more than six
years since the judgment was pronounced, but in this long period three
consecutive governments respectively have only sought 22 extensions
of time.
A full bench of the Appellate Division of the Supreme Court on January

10, 2007 ordered the present CG to publish various rules on separation
of the judiciary through gazette notification within a week and remove

major hurdles for the separation. The four rules are Judicial Service
Commission Rule 2002, Bangladesh Judicial Service Pay Commission
Rule 2002, Bangladesh Judicial Service (Service Constitution,
Composition, Recruitment Suspension, Dismissal and Removal) Rules
2002 and Bangladesh Judicial Service (Posting, Promotion, Leave,
Control, Discipline and other Service Condition) Rules 2001. The
government has been given as many as 22 deadlines to implement the
12-point directives of the Supreme Court on the matter, beginning from
1999.
Finally the present CG in a landmark move on January 16, 2007

published the gazette notifications of four rules relevant to separating
the judiciary from the executive. The Chief Adviser of the CG and finally
the President of the Republic have also endorsed their consent to the
documents of those rules. The whole process was done in a hasty
move with the Supreme Court deadline of publishing the gazette
notifications.
The much expected separation of the judiciary now requires only an

amendment of CrPC as per 12-point directives of the Supreme Court
given in 1999. With the implementation of those rules, the magistrates
working under the executive branch of the government will come
under the authority of the Supreme Court, and the lower court will also
be free of government control.
Now, it is expected that the complete separation will take place during
the present CG by implementing the amended the CrPC in order to
fulfill the expectation of the people.

Caretaker Government completes
process
The long-awaited separation of the judiciary from the executive now

only requires declaration of an ordinance on necessary amendments to
the Criminal Procedure Code (CrPC), the gazette notification of which is
currently being printed.
If the ordinance were put into effect, the judiciary would be separated
from the executive and the magistrates, who are currently under the
control of the executive, will then come under the authority of the
higher court and be known as judicial magistrates.
When contacted for comments on the promulgation of the ordinance,

Law Secretary Alauddin Sarder, however, was not willing to make any.
Additional Attorney-General Abdur Rezzak Khan confirmed that, the

president has already given his consent to promulgate the ordinance.
The gazette notification is currently being published.
Rezzak said, “We cannot say yet the ordinance has been promulgated
since it is still in the press for being printed. But as soon as the gazette
notification is printed and published, the ordinance will be in effect.”
All actions related to the separation of the judiciary will be then taken
under the amendment.
The CrPC amendment is generally passed through a bill placed before

parliament. But since there is no parliament now, the president has
had to amend the CrPC through an ordinance.
According to the constitution, an ordinance will have to be laid before

parliament at its first meeting following the promulgation of the
ordinance.
Meanwhile, the government published a gazette notification of four

rules relevant to the separation of the judiciary.

The rules are Judicial Service Commission Rule 2002, Bangladesh
Judicial Service Pay Commission Rule 2002, Bangladesh Judicial Service
(Service Constitution, Composition, Recruitment, Suspension, Dismissal
and Removal) Rules 2002, and Bangladesh Judicial Service (Posting,
Promotion, Leave, Control, Discipline and other Service Condition)
Rules 2001.
The gazette notification for Bangladesh Judicial Service Pay

Commission Rule 2002 was placed before the court during yesterday’s
hearing of the judiciary separation case at the Appellate Division of the
Supreme Court.
Attorney General (AG) AJ Mohammad Ali told the court that the three
other rules are being printed in the press for publication and that he
will receive them soon.
When asked by the court about the CrPC amendment, the AG sought
for another 10 days for the task, but the court did not respond to his
request.
The seven-member full bench of the Appellate Division headed by

Chief Justice JR Syed Mudassir Hosain directed the AG to place the
gazette notifications of the rules by next Sunday through an affidavit.
The bench also asked him to inform the court of the progress on the
CrPC amendment.
Counsel for the judiciary separation case Barrister Amir-Ul Islam, who
was present in the court, later, told reporters, “We will come to know
how much deviation has taken place from the Supreme Court
guidelines once all the four rules and the CrPC amendment are placed
before the court.”
Nine bureaucrats who have been facing contempt charges for

distorting the SC directives also appeared before the court.
The SC directed them to appear before the court at the next hearing on
Sunday.
The caretaker government, taking the final legislative step towards

separation of the judiciary from the executive, promulgated the Code

of Criminal Procedures (Amendment) Ordinance on Sunday, making
provisions for separate judicial and executive magistracy.
The draft bill of the ordinance, approved by the council of advisers on
Feb 12-2007, was sent to Bangabhaban last evening for the final
consent of the president for the promulgation.
According to sources in the law ministry, concerned officials of the
ministry were kept standing by at Bangabahaban, and after the
presidential approval they sent the ordinance to the BG press, the
official printing press of the government, for publication.
The sources, however, could not confirm whether it would be possible
for them to submit the printed copy of the ordinance to the Appellate
Division of the Supreme Court this morning, when the court resumes
the hearing of the proceedings of the contempt cases against 13
bureaucrats, including four top-ranking officials, for procrastination in
the implementation of the 12-point directive and for distorting the
court’s orders on separation of the judiciary from the executive.
The court on February 2 ordered the caretaker government to submit
the amended CrPC to the court by February 12.
The ordinance will, however, come into effect on the date when the
rules will be made effective. The rules will be made effective by a
gazette notification on a date fixed by the Supreme Court.
The enforcement of the ordinance, which proposes 100 amendments to
the Code of Criminal Procedure 1898, will strip the executive
magistrates, including deputy commissioners, of judicial powers and
functions. But it will not make the judiciary completely independent of
the executive, as the officers of the administrative service will continue
to perform judicial powers and functions under an interim arrangement
until a sufficient number of officers are appointed to judicial service.
They will, however, be transferred to judicial service on deputation for
the interim period.
On completion of the interim period, the executive officers will be
allowed to choose either to return to administrative service or stay
back.
Once the ordinance makes provisions for establishment of separate
judicial and executive magistracy and separate criminal courts —
courts of sessions and courts of magistrates — the judiciary will
become independent of the executive, and the executive magistrates,
including deputy commissioners, will be stripped of judicial powers and
functions.
The cases pending with the court of the district magistrate or

additional district magistrate will be transferred to the court of the
sessions judge of the district, and the cases pending with the court of
executive magistrate will be transferred to the chief judicial magistrate
of the district, says the ordinance.
According to the ordinance, there will be separate judicial and
executive magistrates.The officers of the administrative service, who
will be appointed as administrative magistrates, will not lose the
executive powers and functions they currently have, including the
power to command law-enforcers to disperse any unlawful assembly,
to endorse a warrant or order for removal of an accused person
arrested under warrant, to enable search by postal and telegraph
authorities for documents and to detain them, to issue search
warrants, to require security to keep peace or for good behavior, to
make orders as to local nuisance, to require security for good behavior
in case of sedition, to cancel bonds for keeping the peace and to
impose Section 144 of the Code of Criminal Procedure.
Earlier, on January 16, the caretaker government framed four sets of
rules on judicial service, taking the penultimate step for separation of
the judiciary.
Judiciary separation comes

into force form
Nov 1, 2007
The judiciary becomes independent of the executive form Nov 1, 2007
with 218 judicial magistrates, 224 courtrooms, 1,043 staff members
and four lakh criminal cases pending with the magistrate courts. The
chief adviser, Fakhruddin Ahmed, will inaugurate the Dhaka Judicial
Magistracy and Dhaka Metropolitan Judicial Magistracy in a
ceremony Nov 1 morning at the Bangladesh-China Friendship
Conference Centre. The chief justice, M Ruhul Amin, will also address
the occasion as special guest. Briefing newsmen at his office on
Wednesday, the Supreme Court registrar, Ikteder Ahmed, said 218
magistrates — 202 from the judiciary and 16 from the administrative
cadre service who opted in to judicial service — would start running

the judicial magistracy. ‘Everything is set. Courtrooms, manpower and
other logistic supports are in place,’ he said. Six hundred and fifty-five
posts of judicial magistrates have been created to meet the demands
of the courts in districts.
The remaining 453 magistrates will be recruited in three months by
the Judicial Service Commission, said Ikteder. Once the judicial
magistracy starts functioning, 218 judicial magistrates will need to deal
with more than four lakh criminal cases, now pending with the courts
run by 635 magistrates across the country. According to the report
submitted by the government to the Appellate Division of the Supreme
Court, 4, 84,832 cases, as of February 28, were pending with the courts
of magistrates across the country and at least 890 magistrates were
required to deal with them. The judiciary becomes separate from the
executive following the 12-point directive issued by the Appellate
Division on December 2, 1999 in its landmark judgment in the
government appeal against the High Court verdict in Masdar Hossain’s
case, popularly known as the separation of judiciary case. The court
also ordered the government to report back on the compliance of the
directives by May 31, 2000. All the subsequent governments took
repeated extensions of the time limit to implement the directives,
which are being implemented today. The Awami League government,
however, implemented only one of the directives giving financial
independence to the Supreme Court in 2001.
The caretaker government in 2001 prepared sets of draft rules on

judicial service and a draft ordinance to amend the Code of Criminal
Procedure to implement the directives. The legal instruments were,
however, kept pending by the caretaker government at the request of
then prime minister elect Khaleda Zia. The BNP-led alliance
government on January 28, 2004 formed the Judicial Service
Commission after framing the Judicial Service Commission Rules. The
Supreme Court issued a rule on nine bureaucrats on November 29,
2004 to explain why they would not be punished for contempt of court
for distorting its orders on the separation of judiciary. It also issued a
rule on four top secretaries, including then principal secretary Kamal
Uddin Siddiqui, on April 3, 2006 to explain why they would not be
prosecuted for contempt of court for their procrastination in
implementing the directive.
In the face of the contempt rule, the BNP government framed the
Judicial Service (Pay Commission) Rules on May 28, 2006, and two sets

of rules on judicialserviceonJune12, 2006.The court on January 10,
2007 declared the rules and the draft bill for the amendment to the
Code of Criminal Procedure contrary to its directives and ordered the
government to make fresh rules and ordinance the amendment to the
code. The interim government accordingly framed fresh rules on
January 16 and promulgated the CrPC (Amendment) Ordinance on
February13.
The full court meeting of the Supreme Court, attended by all the
Supreme Court judges chaired by the chief justice, M Ruhul Amin, on
September 27 decided that the Code of Criminal Procedure
(Amendment) Ordinance, which amended the Code of Criminal
Procedure on February 11 in accordance with the directives of the
Supreme Court, will come into effect on November 1, 2007. The rules
were given effect in keeping with the Supreme Court advice. The full-
court reference (meeting) of the Supreme Court of May 10 decided to
put in force the two sets of rules on the judicial service on July 1. Once
the amended Code of Criminal Procedure comes into effect, the judicial
service, including judicial magistracy, will come under the direct
supervision and control of the Supreme Court. The president will need
to exercise his duties regarding the appointment, posting, control and
discipline of the service in consultation with the Supreme Court.
According to the rules, from now on, the president will need to exercise
his powers regarding appointment, promotion, posting and control and
supervision of the judicial service, including judicial magistracy, in
consultation with the Supreme Court. In the case of any difference of
opinion between the president and the Supreme Court, the Supreme
Court’s opinion will prevail, the rules said. According to the rules and
the amended Code of Criminal Procedure, the country will have from
Nov 1,2007 two sets of magistrates — judicial and executive — to deal
with different functions .The country will also have separate criminal
courts — courts of sessions and of magistrates — and all of them will
be run by judicial officers.
The 12-point directive

The lower judiciary comes under the Supreme Court as the judiciary
becomes independent of the executive today as a result of the 12-point
directive of the Supreme Court.
The Appellate Division of the Supreme Court on December 2, 1999

detailed the directives for the separation of the judiciary in its
judgment in the government appeal against the High Court
Verdict in the Masdar Hossain case:

Masdar Hossain and 217 other judges of the lower judiciary filed a writ
petition on November 19, 1995 seeking redress of their financial
discrimination in relation to other services of the government.
The case came to be known as the separation of the judiciary case as
the High Court on May 7, 1997 delivered the verdict in the case
directing the government to separate the judicial services from other
services of the republic.
The finance ministry preferred an appeal against the verdict and the
Appellate Division on December 2 finally pronounced its judgment
detailing the 12-point directive.
The directives are:
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 a 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.
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 (Reorganization and Conditions) Act, 1975 have no application
to the above matters in respect of the judicial service and magistrates
exercising judicial functions.
The creation of BCS (judicial) cadre along with other BCS executive and
administrative cadres by Bangladesh Civil Service (Reorganization)
Order, 1980 with amendment of 1986 is ultra vires of the constitution.
It is also declared that Bangladesh Civil Service Recruitment Rules,
1981 are inapplicable to the judicial service.
The appellant and the other respondents (government) 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 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 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.
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 favor) 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 the
constitutional status of the said service.
The impugned orders in the writ petition dated 28.2.94 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.
In exercising control and discipline of persons employed in the judicial
service and magistrate exercising judicial functions under Article 116
the views and opinion of the Supreme Court shall have primacy over
those of the executive.
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.
the executive government shall not require the Supreme Court of

Bangladesh to seek their approval to incur any expenditure or 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 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 31.5.2000. 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. 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. Until the Judicial Pay Commission
gives its first recommendation the salary of judges in the judicial
service will continue to be governed by status gulp ante as on 8.1.94
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 the Judicial Pay Commission 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.
Judiciary begins new journey after separation

from .
Executive
The judiciary on Nov 1, 2007 began its new journey through its
separation from the executive control in a bid to fulfill the people’s

long-cherished dream for quick and unfettered dispensation of justice.
Chief Advisor Fakhruddin Ahmed formally inaugurated the Dhaka
District Judicial Magistracy and the Dhaka District Metropolitan
Magistracy Nov 1, 2007 morning at the Bangladesh-China Friendship
Conference Centre. Chief Justice M Ruhul Amin attended the function
as special guest. Law Advisor Barrister Mainul Hosein was in the chair.
Nov 1, 2007 is the historic and memorable day of the country. After
200 years of colonial rule and 36 years since the nation’s
independence, the judiciary has been finally separated from the
executive," Chief Advisor Fakhruddin Ahmed said asking all officials
and employees of the Republic to give all support and cooperation in
proper functioning of an independent judiciary, as enshrined in the
constitution of the country.
"The government wants to see the officials and employees of the
Republic to discharge their duties from their respective positions as per
rules and regulations. In view of the changing situation, I call upon all
officials of the executive department to work sincerely and honestly,
side by side with the judicial department," he said.
He said that according to the Supreme Court’s decision led by the Chief
Justice, the Code of Criminal Procedure (Amendment) Ordinance has
come into force from November 1.
"Following the separation of the judiciary from the executive, a new
journey of two different types of magistrates, judicial magistrates and
executive magistrates, has begun. November 1 is a memorable day in
our national life" the Chief Adviser added.
He said the judiciary will discharge their duties and responsibilities in
order to fulfill the people’s expectations and uphold the Constitution.
"So in a democratic country like Bangladesh, as per the Constitution,
the judges have been given independence to protect the basic rights of
citizens and uphold the supremacy of the judiciary," Fakhruddin said.
He said it is impossible to establish the rule of law without an
independent
judiciary."As per aspirations of people from all walks of life and the
Constitution’s mandate, the judiciary has been separated with the
objective to establish good governance and the rule of law in the
country," the Chief Adviser said. Fakhruddin said the government will
ensure necessary legal powers and give support for the executive
magistrates so that they can discharge their administrative
responsibilities smoothly.
Meanwhile, all political parties, lawyers’ associations and civil society

leaders have cautiously welcomed the new journey of the judiciary with
high hopes that people will get justice timely without any influence or
intervention from any quarters whatsoever.
Former Chief Justices Mostafa Kamal, M Habibur Rahman, Latifur
Rahman, Mahmudul Amin Chowdhury, KM Hasan and Syed JR Mudassir
Husain were present at the function, organized by the Ministry of Law.
Advisers of the caretaker government, sitting and former judges of the
Supreme Court, noted jurists, diplomats, high dignitaries, distinguished
personalities and senior civil and military officials were also present on
the occasion.
End

Separation of Judiciary

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Separation of Judiciary

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Judicial Separation

In a democratic state, the power rests on three separate organs,

Independence of judiciary truly means that the judges are in a position

Separation of Judiciary In Bangladesh

Following four meaning of judicial independence:

1. Substantive Independence of the Judges: It referred to as functional or decisional

3. Collective Independence: That means institutional administrative

4. Internal Independence: That means independence of judges from

Independence of judiciary depends on some certain conditions like

Separation of Judiciary In Bangladesh

Separation of the judiciary has been argued both as a cause and a

The plans established by those higher in the pecking order. Executive

Complete separation is relatively unheard or outside of theory,

Separation of Judiciary In Bangladesh

The constitution of Bangladesh is the first defense of judicial

Art. 35(3) of the constitution provide “Every person accused of a

Article 116A provides for independence in the subordinate judiciary

Separation of the Judiciary in the Constitution

Separation of Judiciary In Bangladesh

Why Need Separated Judiciary

In order to promote accountability of government, hinder corruption

Separation of Judiciary In Bangladesh

There are three distinct activities in every government through which

It is widely accepted that for a political system to be stable, the holders

Separation of Judiciary In Bangladesh

Steps for Separation of Judiciary

In the mean time, we witnessed two extra-constitutional processes. In

Separation of Judiciary In Bangladesh

We may mention here some draft procedure to separation of judiciary

1. The formation of Bangladesh Judicial Service, establishment of pay

Separation of Judiciary In Bangladesh

The question of separation of the judiciary from the executive organ of

Separation of Judiciary In Bangladesh

Lack of Political Will

Lack of Interaction with Other Courts

Lack of Strong Civil Society

Separation of Judiciary In Bangladesh

Lack of Democratic Culture

Executive Dominated Judiciary

Separation of Judiciary In Bangladesh

Separation of Judiciary In Bangladesh

Masder Hossain Case and A brief History of the

Separation of Judiciary In Bangladesh

In 1972 after independence of Bangladesh the Constitution of the

Separation of Judiciary In Bangladesh

The final stage would be not only complete separation of judicial

In 1991 a private member’s Bill by Mr. Salauddin Yusuf namely the

Separation of Judiciary In Bangladesh

Masder Hossain's case

Separation of Judiciary In Bangladesh

Separation of Judiciary In Bangladesh

Lower judiciary: An acute dependency syndrome in Magistrates' Courts

Let me get back to the concept of dependency syndrome of the

i) All magistrates are linked with the executive functionaries.

Separation of Judiciary In Bangladesh

ii) Magistrates who discharge judicial functions are never appointed

iii) In almost all magistrates' courts bribes are now-a-days openly

The main crux of the problem of separation of judiciary lies in the

In our new constitution adopted in 1972 it was provided in article 22

Separation of Judiciary In Bangladesh

Supreme Court order on judiciary separation

Separation of Judiciary In Bangladesh

Separation of Judiciary In Bangladesh

Independence of judiciary means a fair and neutral judicial system