In a democratic state, the power rests on three organs, namely the executive, the legislature and the judiciary.

The constitution of Bangladesh vests the executive power in the executive, the legislative power in the parliament and the judicial power in the judiciary. The judiciary comprises all courts and tribunals, which performs the delicate task of ensuring rule of law in the state. Separation of judiciary from the executive is the precondition of the sound and independent judiciary. Since the beginning of the British colonial rule, the separation of judiciary from the executive was an expectation of justice awaiting people. The judiciary of Bangladesh has been separate from the executive. The event of Separation of judiciary of Bangladesh is an epoch -making decision of Bangladesh Supreme Court in the history of rule of Law. The historical decision was given by the Supreme Court in the landmark decision of Secretary, Ministry of Finance, Government of Bangladesh Vs Mr. Md. Masdar Hossain & others1 with 12-point directives, 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.

 Separation of Judiciary & our Constitution

The concept of separation of judiciary from the executive refers to a situation in which the judicial branch of government acts as its own body frees from interventions and influences from the other branch es of government particularly the executive. Influence may originate in structure of the government system where parts or all of the judiciary are integrated into another body.2 For instance, in Bangladesh the president in consultation with Supreme Court appoints judicial officers when the administration of justice is some way affected by executive orders or actions.
1. (1999) 52 DLR (AD) 82 2. In case of Bangladesh the executive

Executive may abuse of this constitutional order result in biased appointment of judges, and other officers of the judicial cadre, favoring individuals who supports government political party. The constitution of Bangladesh is the first defense of judicial independence. The constitution directly and unconditionally says about separation of judiciary from the executive that, The State shall ensure the separation of the judiciary from the executive organs of the State . 3 The constitution addressed the method of appointment for the Supreme Court clearly.4 The appointment, control and discipline of judges in the subordinate judiciary are also described in the constitution. The appointment and control of judges in the judicial service or as magistrates exercising judicial duties be made by the president. He controls (including the power of posting, promotion grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions in consultation with the Supreme Court.5 Article 115 of the constitution provides a direct, primary and plenary power of the president to make rules with regard to appointments of persons to offices in the judicial service or as magistrates exercising judicial functions. 6

 Our Constitution about Judicial Independence

Independence of judiciary means 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 pressur e or influence, influence can be from executive or legislative or from the parties themselves or from superior sand colleagues. Part five of the constitution deals with the judiciary. The constitution says that, all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.7
3. Article 22 4. Article 95 5. Article 115 & 116 6. Mustafa Kamal, C.J 7. Article 7(1)

So every legal step of the Republic should be according to the constitution. The Constitution also says that, Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law . 8 It also provides for independence in the subordinate judiciary and demands independence of the Supreme Court Judges. 9 The constitution has guaranteed the independence of the judges of the Supreme Court in exercise of their judicial functions by making some provisions in the constitution.10 Article 115, Article 133 or Article 136 does not give either the Parliament or the president to curtail or diminish the independence of the subordinate judiciary by recourse to subordinate legislation or rules.11 Article 135 of constitution deals with dismissal, removal or reduction in rank of a person who holds a civil post. The members of judicial service and magistrates exercising judicial functions are no doubt holding civil posts and public officers as they get emolument and render service to the republic.12

The concept of judicial independence comprises following four meaning of judicial independence: i. ii. Substantive Independence: it refers to as functional or decisional independence of judges to arrive at their decisions; Personal Independence: that means judges are not dependent on government in any way in which government may influence upon them in reaching at decisions; Collective Independence: the meaning of that is institutional, administrative and financial independence of judiciary as a whole a nd independence from legislative and executive; and Internal Independence: that means independence from their superiors and colleagues .

iii.

iv.

8. Article 35(3) 9. Article 116A, 94(4) 10. Mustafa Kamal, C.J (Para 26) 11. Ibid

11. Ibid 12. Latifur Rahman, J (Para 82)

 Walk to separation and Masdar Hossain case: at a glance

After the division of the sub-continent in 1947, the first attempt was taken. Our constitution of 1972 is fairly developed towards the separation and independence of judiciary. Fourth amendment of the constitution was destroyed the independence of judiciary. In 1987 initiatives were taken to separate magistracy by amending Code of Criminal Procedure, 1898. But bill could not be placed before the Parliament for unknown reason. After the autocratic rule in 1990 expectation was high to separate the judiciary. Bangladesh Nationalist Party (BNP) and Awami League first included separation of the judiciary in their agenda during anti -Ershad movement. Two governments of 1991 and 1996 were silent about it. 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:

 Inclusion of judicial service in the name of BCS (Judicial) under the Bangladesh Civil Services (Re-organization) Order, 1980 is ultra vires the constitution;  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.  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 its 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
4

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 courts13 and services of Bangladesh14 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. 15 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. As a matter of fact, the independence of judiciary and the impartial judicial practice are related concepts, one cannot sustain without the other. The successive government was taken time to delay the process. The care taker government of 2001 was tried to separate judiciary, but was stopped by request of two big political parties Awami League and BNP . Elected government of 2001 BNP leaded coalition was working slowly towards the separation. Finally, Caretaker government officially announced separation of judiciary on November 1, 2007. The demand separation of judiciary from the executive is universal to ensure the independence of the judiciary. Separation of judiciary of Bangladesh will open the expected horizon by giving justice in implementing Rule of Law.
13. Article 114-116A) 14. Article 133-136), 15. Para 76

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