TEN YEARS OF SEPARATION OF JUDICIARY and the state of judicial independence

Law Desk (LD): How did you get involved in Masder Hossain Case? What was the context?

Md. Masder Hossain (MMH): I started my career as an Assistant Judge (then Munsif) in Shonatola Upazilla of Bogra. At that time we were delegated with the powers and functions of First Class Magistracy. Even though we are a separate organ of the State and are delegated with one of the most significant responsibilities of the State, we were grossly neglected. In this backdrop, a group of like-minded judicial officers from North Bengal drafted a resolution and sent the same to the Bangladesh Judicial Services Association (BJSA) with an aim to bring about a change in the status-quo. This was basically the context. After a period of time, I assumed the post of Secretary General of BJSA and tried to convince the judges across the country to come forward. In the meantime another important thing happened. The pay scale for the Administration Cadre was increased in 1989 (vide an Official Gazette Notification of 12.07.1989).

However, the pay scale for the judicial officers remained unchanged. Similarly in 1991, the pay scale for the Additional District Judges was decreased in comparison to that of other officers of the identical rank. Thus, the judicial officers were discriminated in respect of their pay scale. One of the judges posted in Khulna, as an expression of protest, stopped drawing his salary for consecutive 18 months. He was the first person moving the High Court Division (HCD) with a writ petition. Upon recurrent applications sent to the Secretary of the Ministry of Public Administration, a committee was formed in order to revisit the discrimination alleged by us. That committee submitted a recommendation and thereupon, on 8 January 1994, the pay scale for several judicial posts was reassessed. However on 28 February 1994, vide another Gazette Notification, the pay scale for only the judicial officers was again changed and brought back to its previous position (by annulling the notification of 1994). A financial advantage once given cannot be taken away without any gross illegality, involved therein. And hence the third Gazette Notification was against rules and laws.

We again tried to draw the attention of the Ministries of Law, Finance and Public Administration. They didn't pay any heed to our demands and we embarked upon a new journey of protesting in a peaceful way. We wore black badges and declared an hour long Kolom Biroti (not performing official duties out of protest) for two consecutive days. Unfortunately our black gowns and black badges complemented each other so well that we failed to draw mass attention. Moreover, the media as well wasn't as vigilant as we see it today. It was BJSA which finally decided to file a writ petition.

LD: Do you think that the control and management of the subordinate courts vested upon the President under Article 116 of the Constitution contradicts with independence of the judiciary?

MMH: To understand the issue of control, Articles 116 and 109 have to be read together. Under Article 109, superintendence and control of all subordinate courts and tribunals vest in the HCD. However, Article 116 determines the area of 'control' and goes on to say that 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. In my opinion, this provision, as it stands, doesn't contradict with the idea of independence. We have to remember that the appointing authority is the President and not the Chief Justice. The one who appoints, should be vested with the power to do other things ancillary to the appointment. Asking the Supreme Court to decide on its own is not wise at all. The President is not the head of the Government in power. He holds de jure importance as the head of all three organs of the State. The power is not exercised by the President alone. Consultation with the Supreme Court is mandatory under Article 116. Since there is a provision of such consultation, I don't find it contradictory with independence of the judiciary.

LD: How do you assess the significance of 'consultation with the Supreme Court' as mentioned in Article 116?

MMH: As I have already said that consultation is mandatory. So, it has constitutional significance. In this context, however, the Supreme Court should not be equated with the Chief Justice. What I mean is that consultation must be taken place with the Supreme Court. Now the question is 'how'. Upon taking decision regarding posting, promotion, grant of leave and discipline, the President sends a note through the Law Ministry to the Supreme Court asking for its opinion thereon. The Supreme Court through the General Administration (GA) Committee sends its opinion either negating or affirming the decision or opinion to any other effect. The final decision however is taken by the appointing authority, i.e. the President. 

LD: Does the judiciary, while working independently, have any accountability?

MMH: There is a misconception that independence is equal to going beyond accountability. The judges themselves are not above law. Neither are they there without accountability nor is this what we advocated for, when we talk about independence. There are a number of institutional checks for doing justice by changing decisions of the judges. The concept of accountability of the judges is different. A person, aggrieved by the decision of a judge sitting in the lower tier, can go for an appeal or revision of the same. This too is one sort of accountability. The judges sitting at different tiers of the judiciary have accountability to themselves and also to the common people asking for justice. If illegality, gross negligence or bias is found by the higher tier, necessary order shall follow. The matter shall be recorded in the Annual Confidential Report (ACR) and the judges with bad or undesirable ACRs may rarely be considered for promotion. Within this existing framework, the idea of complete absence of accountability is a myth and the same is not at all desirable.

LD: After a decade of separation of the judiciary, how do you see the state of judicial independence in the post Masder Hossain context?

MMH: Article 22 of our Constitution can be traced back to the 21-Point Programme objectives incorporated in the election manifesto of the United Front in 1954. Among the 21-point demands, separation of the judiciary from the executive was the 15th. However, the State only ensured the insertion of that objective in the Constitution but did nothing to implement the same. In the words of Justice Md. Hasan Amin who decided Masder Hossain Case in the HCD, the judges are not employees; they exercise the sovereign judicial power of the State. We are separated without certainty of tenure and other conditions in their strictest sense. And this indeed is not enough. The concepts of independence and impartiality of the judiciary are interdependent. None can sustain without the other. Impartiality is a state of mind and independence of the judiciary is both a state of mind and a particular status. The Government in power has indeed worked in favour of judicial service through the creation of posts and increase of pay scales. Still one judge in the subordinate court shares his Ejlash (court room) with three other judges. Independence doesn't only mean separation. It implies the ability to adjudicate disputes without any interference or fear, it implies certainty of tenure and economic independence.

LD: Thank you for your time.

MMH: You are welcome.