Secretary, Ministry of Finance vs. Masdar Hossain 52 DLR (AD) 82 (1999) [Masdar Hossain Case]

 

Introduction

This is one of the landmark cases in Bangladesh. This case deals with the separation of powers in Bangladesh. This case has four judges bench they are Chief Justice Mustafa Kamal, Justice Latifur Rahman, Justice Bimalendu Bikash Roy Choudhury, Justice Mahmudul Amin Choudhury.

 

Lawyers Involved:

For the Appellant:

Mahmudul Islam, Attorney-General, instructed by Sharifuddin Chaklader, Advocate-on-Record.

For the Respondent:

Dr. Kamal Hossain, Syed Ishtiaq Ahmed and Amir-ul-islam, Senior Advocates, instructed by Md. Aftab Hossain, Advocate-on-Record.

Fact

The government decrease the salary of the judge’s day by day at time judges were aggrieved for that. Some judges not drawing their salary for protest and they show pen protest but after in 1995, Masdar Hossain who was a district judge along with 441 judicial officer who was either district judges, additional district judges or other judges of the subordinate courts filed a writ petition to the high court division. The petitioners filed a petition including:

 

1. The amendments of the Bangladesh civil service order, 1980 which included the judicial service which is known as BJS within the BCS (Bangladesh civil services).

 

2. The necessary amendments of article 115 and 116 of the constitution which give power to the President to appoint judges of the subordinate courts.

3. The separation of the subordinate judges from the jurisdiction of the administrative tribunal of the executive.

 

4. The challenge against the annexure F and F (1) as being violate of the fundamental rights contained in 27 and 29 of the constitution.

 

An appeal was filed against the judgement of HCD in the Supreme Court of Bangladesh by the Secretary, Ministry of Finance.

Major arguments of the appellant’s lawyer

Some important grounds submitted by the Attorney General for Bangladesh on behalf of the appellant have been summarized as the following:

1. Firstly, the Judicial Officers and other officers in the civil service are very well-divided into different categories. All will be members of the Republic of Bangladesh which includes Parliamentary, Executive and Judiciary. There is no discrimination Judiciary Officers and other officers in the civil service.

2. The High Court Division is seeking discrimination among the Judicial Officers without examining the provisions of Annexure F&F (1) but there is no discrimination among them.

3. The Government is free to change the conditions of the services of the Republic. But the conditions imposed by the High Court Division on Judicial Officers were wrong.

4. The High Court was wrong to include the Judiciary Officers in the Bangladesh Civil Service (Re-organization) Order, 1980 is ultra vires the Constitution.

5. Judicial Officers are not outside from the Part XI of the constitution and Article 133 and 136 are not applicable in this case.

6. The High Court Division has failed to distinguish between the Court and its presiding officers. They have led the High Court Division towards the wrong view of the Articles 109 and 117 of the constitution. And Judicial Officers are flexible to the Administrative Tribunal.

7. The High Court Division was wrong in holding that control, supervision and Management of judicial officers would be vested only in the Supreme Court.

8. Ignoring the clear provision of the constitution, the High Court Division was wrong and directed against the provisions of the constitution by creating the Judiciary of Bangladesh under the direct control and supervision of the Supreme Court. 

9. The High Court Division is in violation of the Constitutional principle of separation of powers by directing legal action.

10. Interpretation of the constitution is necessary for this case, as it involves important question of law.

11. He referred a text book “Government of Modern States” by Willoughby at pages 4 and 26, and “Administrative Law” by Bradley and Ewing, 12th edition, and submits That the word “Government” in the definition “the service of the Republic” has been in a generic sense including the Parliament, Executive and Judiciary.

12. The learned Attorney General argued that the judiciary could not direct parliament to take legal action or direct the president to enact rules under the provisions of Article 133 of the constitution and he rightly relied on this courts specific decision to support his argument.

Major arguments of the respondent’s lawyer

Three well-known lawyers – Dr. Kamal Hosssain, Syed Ishtiaq Ahmed and Amir-ul-Islam were involved in the case. Notable reasons submitted by the respondent’s counsel on behalf of the respondent are as follows:

Significant arguments of Dr. Kamal Hossain

1. First he referred to the eighth amendment case (Anwar Hossain vs. Bangladesh, BLD 1980 Special Issue 1) and submits that the independence of the judiciary has been accepted by this Court to be a basic structure of the constitution.

2. He also referred to take into consideration the contemporaneous concepts on the independence of the judiciary relies upon page 558 of the “Constitutional Law of Bangladesh” by Mahmudul Islam

3. Then he referred the case of Chandra Mohan vs. State of Uttar Pradesh 1966(SC) 1987 and the history of the Provincial Civil Services (Judicial Branch) is described from paragraph 20.

4. He then referred the case of Chandramouleshwar Prasad vs. The Patna High Court, AIR 1970 (SC) 370, and insisted on the meaning of “consultation” given in that decision while commenting on Article 116.

5. The functions of the executive service and the judicial service are significantly different. To support this argument, he cites Herbert Morrison’s book “Government and Parliament” and Harold J. Laski’s “Grammar of Politics”.

 

Significant arguments of Amir-ul-Islam

1. Amir-ul-Islam further argued that the tenure of judges is based on the principle of good conduct but if they are part of the executive branch, they will remain in office during the President’s pleasure. It hurts the independence of the judiciary.

2. According to Section 152(2) of the constitution, Power to appoint means carries the power to suspend or dismiss. It has been argued on behalf of Amir-ul-Islam that the President also has the power to make rules on suspension or dismissal in the exercise of power under Article 115.

3. Service of the Republic means any service related to the Government of Bangladesh. The Government of Bangladesh deals with executive administrative functions. Judicial Officers cannot be called government employees as they are not an executive body.

4. Amir-ul-Islam argued on behalf of the respondents that the word “Control” in Article 116, read with Article 115, includes not only will this President make rules with the help of the Supreme Court in appointments, but he will also make rules with all the terms and conditions of the Judicial Service and Magistrates in exercising judicial functions.

5. The views and opinions of the Supreme Court under Article 116 of the constitution shall prevail over the views and opinions of the executive.

 

Significant arguments of Syed Ishtiaq Ahmed

1. The term “Control” in Article 109 includes not only courts and tribunals but also their presiding officers.

2. Under Article 48(3) and Article 116 of the constitution, the President wishes to act on the advice of the Prime Minister in all his dealings. Control has been given to the President but in reality it is in the hands of the Prime Minister. Such as Articles 116 and 116(a) of the constitution mocking the independence of the subordinate judiciary.

Judgement

Secretary, Ministry of Finance vs. Masdar Hossain case holds great importance in the separation of judiciary from the executive. It is a revolutionary incident in the constitutional history of Bangladesh. In 1995, Masdar Hossain along with other 441 judicial officers brought a writ petition in the High Court division. The hearing on this case started from 13th June 1996 and continued for a long time. After a long term hearing High Court Division gave its judgement on the 7th May of 1997. But the Government of Bangladesh appealed against the judgement. The Appellate Division then reviewed the case and gave its judgement on the 2nd December of 1999. The judgement was given by Chief Justice Mustafa Kamal along with Justice Latifur Rahman, Justice Bimalendu Bikash Roy Chowdhury and Justice Mahmudul Amin Chowdhury. On this landmark judgement the appellate Division gave 12 directions to the Government in order to separate the judiciary from the executive. The 12 directions are stated below:

1. Judicial service is the service of the republic which is functionally and structurally different and detached from the executive and administrative services. It cannot be attached, replaced, extinct, handled together.

2. The President can create or establish judicial service or magistrate performing judicial service or make requirements on this circumstance. But the President will not be able to make the terms and condition of the service.

3. The Civil Service Recruitment Rules,1981 will not be applicable to the judicial service.

4. The nomenclature of the judicial service will follow the Constitution of Bangladesh and it will have designated as the judicial service of Bangladesh. A judicial service commission has to be established consisting of majority of member from the higher judiciary of supreme court and sub-ordinate courts. They will recruit persons for judicial service on the basis of merit and they will follow equality between men and women.

5. The rules and orders relating to posting, promotion, grant of leave, discipline, allowances, pension and other terms and conditions of service will be enacted or made separately for judicial service or the magistrate performing judicial functions.

6. The appellant and other respondents to the writ petition has to establish a separate judicial pay commission to review the pay, allowances and other privileges of the judicial service. The judicial service has to follow the recommendations of the commission.

7. Views and opinion of the Supreme court will have primacy in exercising control and discipline of persons employed in judicial services and magistrate exercising judicial functions.

8. Security of tenure, security of salary and other benefits and pension and institutional independence from the parliament has to be ensured.

9.To incur any expenditure on any item from the funds allocated to the Supreme Court of Bangladesh in annual budget which falls within the limit in sanctioned budgets, the executive will not have to need the approval of the Supreme Court of Bangladesh.

10. The members of the judicial service will be within the jurisdiction of administrative tribunal.

11. No further constitutional amendment is needed to separate the subordinate judiciary from the executive.

12. The salary of judges in the judicial service will continue be governed by status and paragraph 3 of the order of 8th January,1994 and also by the further direction of the High Court Division till the judicial commission gives its first recommendation. If any increase is made in the payment of the persons doing other services in the republic before the judicial commission gives its first recommendation, then the members of the judicial service will also get a pay rise.

                    

The judgement didn’t get implemented till year of 2000. In 2001. The government made drafts of 3 Acts and Rules. But it didn’t come into force also. As a judgement of the highest court of Bangladesh the judgment should be implemented in time, but it didn’t implement within due time. The Supreme Court put pressure on the government time after time and as a result the government made 4 Rules in 2004 which was reissued in 2007. The four rules are:

 Bangladesh Judicial Service Commission Rules, 2007

 Bangladesh Judicial Service Pay Commission Rules, 2007

 Bangladesh Judicial Service Commission (constitution of service, appointment on the service and suspension, removal and dismissal from the service) Rules, 2007

 Bangladesh Judicial Service (posting, promotion, grant of leave, control discipline and other condition of service) Rules,2007

 

After issuing the Rules, to change structure of judiciary for the separation of judiciary the Code of Criminal Procedure (Amendment) Ordinance,2007 was issued in the February month of 2007. By this Ordinance, the fundamental criminal procedure was changed. The Criminal Court was reconstructed and by this reconstruction the steps of separating the judiciary from the executive took action. Afterwards, in 2009, in accordance of the Ordinance, the the Code of Criminal Procedure (Amendment) Act,2009 was passed. By enforcing the Code of Criminal Procedure (Amendment) Act,2009, the judgement of the Secretary, Ministry of Finance v Masdar Hossain case was implemented.

Conclusion

Though this case ensures the separation of judiciary literally but the reality it not stand properly. The effect of the executive power still exists in the judicial area. 

[This Case Summary is written by Al-Amin, Sadia Afrin Ankita, Jannatul Ferdous Tama, Md. Shamim Chowdhury, Jannatul Ferdaus Laboni, Kazi Sajid Ahmed, Anup Modal, Tofayal Ahmed Rakib, Suhrid Barua and Oahid Ferdous]

“All the writers are the students of Department of Land Management and Law, Jagannath University”