In what context did you file the case regarding the separation of the judiciary? What was your role and responsibility at that time?
Md Masdar Hossain: In 1994, we approached the relevant ministers of the government at the time to discuss certain service-related problems of members of the judiciary. When the previous pay structure and working conditions were suddenly downgraded, the executive committee members of the BCS Judicial Association met with the then law minister, Mirza Ghulam Hafiz. During that discussion, he said he could do nothing about it.
A few days before that, the sub-judge at the time, Sheikh Jahangir Hossain, had appealed to the president regarding the pay disparity and the unfavorable working conditions, as the judicial pay scale had been downgraded by one tier. That effort, however, did not go far.
The association then sat for discussions on these issues and collectively decided to pursue their rights through legal means. Based on the opinions of all members, the case (Writ Petition No. 2424 of 1995) was filed in the High Court in 1995. At that time, I was the general secretary of the association and the third sub-judge of Dhaka.
The case was not merely about the pay structure. The key issue was the status of our service. The judiciary did not have the independent position it should have had as a separate organ of the state. We had to appeal to the administration for everything, including infrastructural matters.
What was the political and administrative backdrop at the time that you filed the case? What was its legal and constitutional significance?
Md Masdar Hossain: The political circumstances were not really in our favour. The law minister said that not everything was in their hands and there were also some legal aspects involved. What he said had some validity, though we were disappointed by his statement. The general secretary of the judicial association, along with 218 judges from the BCS (judicial) cadre (later rising to 441), filed the writ petition. The judiciary is one of the three organs of the state. Yet the BCS (judicial) cadre had been placed alongside the 29 administrative cadres under the executive branch. This arrangement erased the independent identity of judges. That is why the law itself was challenged, because the judiciary is a separate organ of the state and should remain under the authority of the Chief Justice.
Prothom Alo :
The High Court delivered its verdict in the case regarding the separation of the judiciary from the executive on 7 May 1997, followed by the Appellate Division’s ruling in 1999 with 12 directives. In your view, which directive was the most important?
Md Masdar Hossain: All 12 directives were landmark in nature. Among them, the eighth directive is the most important. According to that directive, a prerequisite for judicial independence and separation is that the judiciary must be kept free from the control of the legislature and the executive.
Prothom Alo :
Prothom Alo: It has been 26 years since the Appellate Division’s verdict in 1999. To what extent have its directives been implemented?
Md Masdar Hossain: The directives stated that the supervision and control of the subordinate courts would rest entirely with the Supreme Court. In neighboring countries like India and Japan, the judiciary is governed by the judiciary itself. Several directives of the verdict on judicial separation have indeed been implemented. However, the eighth directive still remains unimplemented. Certain functions of the subordinate judiciary that were once under the control of the administration, that is, the law ministry, continue to remain so even now. I would say that the actual work of separating the judiciary has not yet been done.
How would you assess the role of successive governments in implementing the verdict on judicial separation?
Md Masdar Hossain: Every government has claimed to support judicial independence and separation. During the caretaker government’s tenure, as part of implementing the verdict, the Criminal Procedure Code (Amendment) Ordinance and the Judicial Service Rules were promulgated in 2007, and the Awami League government later validated those measures. The Awami League government also worked on infrastructural development, such as buildings and vehicles, for the judiciary. However, an invisible shadow and force have always operated to prevent the judiciary from exercising its full authority. Since the departure of the British, there have been 136 attempts to separate the judiciary. Regrettably, none of them bore fruit.
Prothom Alo :
When you refer to an “invisible shadow and force,” what do you mean, or whom are you referring to? How would you compare the judiciary before and after the verdict?
Md Masdar Hossain: A separate secretariat for the judiciary has still not been established. It has not happened precisely because of the forces to which I referred. They do not want to relinquish this power. This power has long been used to keep judges under control. That mindset has persisted for 54 years. I can say unequivocally that in the judiciary of earlier days, before the 1990s, no minister, member of parliament, or authority ever dared to even telephone a munsif or assistant judge, the lowest-ranking officials of the judiciary.
Why do you think judicial independence is necessary?
Md Masdar Hossain: Without an independent judiciary, no civilised nation can ensure the welfare of its people. Be it the right to vote, democracy, the rule of law, or administrative authority, all must serve public welfare. If the judiciary is not independent, a democratic environment cannot be guaranteed, nor can the rule of law be effectively upheld.
Prothom Alo :
To what extent is the judiciary now able to function independently and free from influence?
Md Masdar Hossain: The situation has improved somewhat. However, it has been 54 years since independence. One must ask who is responsible for the judiciary’s present weakness? Whatever may have happened in the past concerning judicial appointments, the recent appointments of judges have, under the current law, been based on merit and competence.
Prothom Alo :
What challenges do you think still stand in the way of achieving full judicial independence?
Md Masdar Hossain: The Supreme Court of India has stated that judicial independence also implies financial independence, so that judges can apply the law impartially against injustice. Judges must be ensured proper pay, benefits, and an influence-free, dignified working environment.
Prothom Alo :
On 2 September, the High Court ruled that a separate secretariat for the Supreme Court must be established within three months. This ruling has reinstated Article 116 of the 1972 Constitution. How do you view this High Court ruling following the Supreme Court’s decision in the case?
Md Masdar Hossain: One ruling complements another. The context of the Supreme Court’s verdict is clearly reflected in the High Court’s decision. The High Court has reinstated Article 116 of the Constitution, meaning that the control over judicial officers, including postings, promotions, leave approvals, and disciplinary matters, will now rest with the Supreme Court. The High Court has issued a certificate for appeal, so I hope the matter will be finalised through the Supreme Court’s verdict.
Prothom Alo :
Why has a separate secretariat for the Supreme Court still not been established? What do you think has been the major obstacle?
Md Masdar Hossain: To ensure judicial independence and separation, it is essential to follow the eighth directive of the verdict and free the judiciary from the control of the government and the law ministry by establishing a separate secretariat and administrative structure. Without a separate secretariat, it is impossible to guarantee the judiciary’s separation and independence.
Why do you think it is essential for the judiciary to be fully separated from the executive?
Md Masdar Hossain: There is a constitutional obligation to separate the judiciary from the executive. Article 22 of the Constitution states that the state must ensure the separation of the judiciary from the executive organs of the state. That is why full separation of the judiciary is essential. Unless it is separated from the administration and executive, the judiciary can never truly become independent.
Prothom Alo :
What does the structure of a separate secretariat look like in other countries?
Md Masdar Hossain: Different countries have different structures, but the essence is that the judiciary itself controls its courts and judges. The High Court in West Bengal, India, has a separate secretariat that handles administrative and other court-related functions. In Japan, the judiciary manages its own affairs independently.
Prothom Alo :
If a separate secretariat is established, how will it benefit the litigants?
Md Masdar Hossain: From my own experience, I have seen a judge enroll his child in school, and after only 13 days of classes, he was transferred elsewhere. According to the usual policy, a judge should remain at a posting for at least three years. If there is any allegation of misconduct, he can be transferred with proper justification. For example, a judge sets a date for delivering a judgment tomorrow, but today he is transferred. He cannot deliver the judgment, and the new judge has to hear the case from scratch, which wastes more time. This harms the public, the judge, and causes financial loss too. Therefore, a peaceful working environment, assurance of service or posting, and control over abrupt transfers should fall under the High Court’s authority. With a separate secretariat, these benefits would be available both to judges and to litigants.
Prothom Alo: Those in power often try to politicise the judiciary. What needs to be done to prevent such allegations against the judiciary in the future?
Md Masdar Hossain: There is no magic wand to completely prevent such allegations. Complaints may arise. Every department has its good and bad aspects, and the bad must be controlled. I regret to say that this issue persists in our society, and it has deep roots. Measures must ensure that no one, inside or outside, can interfere with or attack the independence of the judiciary.
Prothom Alo :
A colleague of yours at the Judicial Reform Commission commented last April that the experience is not very encouraging, and even small initiatives are not being implemented. To what extent have your reform proposals been implemented, and what has been the main obstacle?
Md Masdar Hossain: The Reform Commission has made recommendations on various issues, including legal reforms, amendments, alternative dispute resolution, and procedural changes such as the issuance of summons in civil cases. Following the Commission’s recommendations on the law for Supreme Court judge appointments, judges have been appointed according to the law. However, most of the Commission’s recommendations have yet to see the light of day. The main obstacle to implementation is the prevailing mindset.
Two prominent lawyers recently stated that many judges “are under direct or indirect pressure” and that “fear exists both inside and outside the judicial system.” What do you think has caused this situation?
Md Masdar Hossain: I completely agree. There are rumours that more judges will be removed. There is a public perception that 12 judges were “dismissed over tea,” although the general public does not have the correct explanation. If there are specific complaints, action should be taken, but lists should not be made before any allegations are officially raised.
Prothom Alo :
As a student of law, what kind of judiciary would you like to see? What steps would be necessary to achieve that?
Md Masdar Hossain: As a law student, the judiciary I have dreamed of still lacks a truly separate working environment, even though it has been formally separated. The judiciary is still not free from administrative control. There is only one precondition for building a neutral and independent judiciary: the judiciary must be under the control of the Supreme Court.
Prothom Alo :
Thank you for your time.
Thank you as well.