Secretary, Ministry of Finance Vs. Md. Masdar Hossain and Others' Case(1999) 52 DLR (AD) 82. 20 BLD (AD) 104.

Ministry of Finance Vs. Md. Masdar Hossain and Others' Case(1999)

The government appealed to the Appellate Division of the Supreme Court. Civil appeal. Civil Appeal No.79 of 1999 arising out of the judgment and order dated 07.05.1997 passed by the High Court Division in Writ Petition No. 2424 of 1995. (Appeal December 2, 1999).

Background of the Appeal: In 1995, a writ petition was filed by Masdar Hossain, a district judge, on behalf of 441 other civil court judges. The petition put forward the following points:-

■ Including the judicial service under the executive branch's orders was ultra vires.

■ Chapter II of Part VI of the constitution ensured lower courts were separate from the executive.

Judges of lower courts could not be subject to an Administrative Tribunal of the executive. The Dhaka High Court ruled in favor of the petition with a 12-point directive in 1997. The government appealed to the Appellate Division of the Supreme Court. The High Court Division made the Rule absolute and the Appellate Division unanimously allowed the Appeal in part. The Appellate Division held that the impugned Orders flagrantly violated the concept of independence of the judiciary and the theory of separation of power incorporated under Article 22 of the Constitution.

Issues: The central issue revolved around the separation of powers in Bangladesh and the independence of the subordinate judiciary.

Judgment: Secretary, Ministry of Finance vs. Masdar Hossain case holds great importance in the separation of judiciary from the executive.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.

In 1999, the Supreme Court reversed parts of the High Court ruling, but upheld the 12-point directive. It issued a further 12-point directive. The Supreme Court called for the formation of an independent judicial commission to select members of the judiciary, deal with matters of judicial salaries, and manage discipline. The Supreme Court ruled that the Constitution provided a framework for judicial independence.

Comments: The Supreme Court of Bangladesh delivered its judgment in the case of Secretary, Ministry of Finance Vs. Md. Masdar Hossain and Others on December 2, 1999. The Supreme Court also ruled that the Constitution provided a framework for judicial independence. The 1st day of November 2007 is taken to be the day when the Judiciary was formally separated from the Executive. The verdict led to the formation of the Bangladesh Judicial Service Commission. It was implemented by Chief Advisor Fakhruddin Ahmed during the caretaker administration in 2007. This landmark case significantly contributed to ensuring the independence of the subordinate judiciary in Bangladesh. Following this Judgment, the Judicial Service Commission for the appointment of judicial officers and a separate payroll structure has been established. However, the disciplinary rules of the judicial officers were still controlled by the Executive. Following the forceful resignation of the then Chief Justice, the then Appellate Division approved the disciplinary rules with the control of the Ministry of Law and thereby finally compromised the meaningful separation of the Judiciary from the Executive.