The Supreme Court decided to create a separate secretariat on September 6, 2012
A name plaque of a separate secretariat for the judiciary was inaugurated seven years ago. But it has been lost in with time.
According to the landmark Masdar Hossain case, the supervision, disciplinary control, transfer and promotion of the lower court officials ought to be in the hand of the High Court Division. Hence there is a need for a separate secretariat.
The verdict in the Masdar Hossain case, filed by 441 judges of the lower court in 1995, instructed the formation of an independent judicial service commission.
The law ministry did the secretarial work for the judiciary before the establishment of a separate secretariat. But currently the ministry is in control of everything related to the judicial officials.
The situation has raised questions about the independence of the judiciary, which was separated from the executive in 2007.
The Supreme Court decided to create a separate secretariat on September 6, 2012.
A letter was issued to the Prime Minister's Office on September 19 that year to fix a date for the inauguration of the activities of the secretariat by the prime minister. But the Supreme Court got no reply to that letter from the Prime Minister's Office.
On November 23, the then Chief Justice Muzammel Hussain unveiled a name plaque of the secretariat after selecting two buildings at the Sarak Bhaban.
AKM Shamsul Islam, then registrar of the Supreme Court, told The Business Standard that there were several extra multi-storey buildings on the Sarak Bhaban compound. A decision was made to use the third and the fourth buildings to conduct the activities of the secretariat.
He said it was expected that the prime minister would inaugurate the secretariat.
According to Supreme Court sources, the name plaque was there for a long time but was then demolished in early 2018.
On November 1, 2007, the then caretaker government separated the judiciary from the Appellate Division.
Barrister Mainul Hosein, who was the law adviser to the caretaker government, said the separation of the judiciary was a highly challenging task back in 2007.
"There was a decision to establish a separate secretariat for the judiciary at that time. But it was not actualised for a lack of time. The next government did not try to establish a separate secretariat," said barrister Mainul.
"The control of the political government over the judiciary will decline if they create a separate secretariat. In that case, the government will not be able to influence the judiciary. The government is reluctant to create a separate secretariat because of this fear," he said.
"There is supposed to be no role of the law ministry in the affairs of judicial officials because it was decided that there would be a separate secretariat for the judiciary," he added.
The legal battle for separation of judiciary
HM Ershad came to power though unconstitutional means and, like other military dictators, did not care about the judiciary.
He also cared little about the efficiency of the judiciary because what he needed was bureaucrats and the army to remain in power. He was generous in giving pay rises to those working in the administration. Thus, lower court judges were neglected and faced discrimination.
Ershad set up martial law tribunals. These courts, which were superior to other courts, followed the martial law to hold trials.
Some judicial officers in the country's northern districts wrote to the Bangladesh Judicial Services Association between 1988 and 1989, hoping that changes would be brought about. However, their move was in vain.
Under a new pay scale in 1989, the government raised the salaries of administrative cadre officials, but the pay of judicial officers remained unchanged.
This continued even after Ershad had been deposed in December 1990. The following year, the pay of additional district judges was still less compared to that of other officers of the same rank.
A Khulna judge protested by refusing to accept his salary for 18 months in a row. A committee was set up to look into the discrimination after the secretary of the then establishment ministry had received several complaints.
The pay scale of several judicial posts was reassessed on January 8, 1994 following the committee's recommendations. However, on February 28, 1994, the pay scale of only the judicial officers was reverted to the previous level.
Even though judicial officers made another attempt to draw the attention of several ministries, including the ministries of Law, Finance, and Establishment, it fell on deaf ears. The authorities paid no heed to their demand.
Lower court judges then began protests but in a peaceful way. They wore black badges and declared an hour-long work abstention for two consecutive days.
However, this did not work either.
Eventually, in 1995, they filed a writ petition with the High Court which is known as Masder Hossain case. Masder Hossain was the then secretary general of the Bangladesh Judicial Services Association.
In a landmark verdict in 1997, the High Court declared the pay discrimination illegal and void. It also issued directives for separating the lower judiciary from the executive in accordance with the constitutional provision.
No government since the independence of the country had addressed the issue. So, the High Court had to do so.
The then Awami League government challenged the verdict and lodged an appeal with the Appellate Division of the Supreme Court.
In December 1999, the Appellate Division in its ruling upheld the High Court verdict. It also issued a 12-point directive to the government to separate the judiciary.
The directives included formation of a separate judicial service commission to take care of the appointment, promotion and transfer of members of the judiciary in consultation with the Supreme Court and a separate judicial service pay commission, amendment to the Code of Criminal Procedure and new rules for the selection and discipline of judiciary members.
The government chose to delay the implementation of the verdict until its tenure came to an end in October 2001.
Then the BNP came to power and did the same.
From 1999 to 2006, both the Awami League and the BNP governments took extension of time more than two dozen times to implement the verdict. This reflect their unwillingness to implement the apex court's verdict.
Finally, the army-backed caretaker government of 2007-08 took effective steps to separate the judiciary. In November 2007, it officially separated the judiciary from the executive based on the constitutional directive principles and the Supreme Court verdict in the Masder Hossain case.
Some rules were also made but the process was not completed. Complexities prevailed over issuing a gazette notification on the rules determining the discipline and code of conduct for lower court judges.
Barrister M Amir-Ul Islam, the chief lawyer of the Masdar Hossain case, told The Business Standard, "According to Article 109 of the constitution, the High Court Division shall have superintendence and control over all courts (and tribunals) subordinate to it."
He said according to this article and the verdict in the Masder Hossain case, it is essential to have a separate secretariat for the judiciary.
"The government thinks that a separate secretariat will diminish its authority over the judiciary," said barrister Amir.
"But a separate secretariat will benefit the people of the country. The secretariat will be able to perform independently all the necessary tasks concerning the transfer and promotion of the justices. The secretariat will also be able to develop their skills. It will smoothen the judicial process," he added.
Law Minister Anisul Huq told The Business Standard that the concept of a separate secretariat for the judiciary is groundless. The government does all the tasks for the judiciary on advice of the Supreme Court according to the constitution.
"No development work of the judiciary has been stuck because of the absence of a separate secretariat. Right now, the government has no plan to create a separate secretariat," said the minister.
Barrister Shafique Ahmed, a former law minister, however, thinks that a separate secretariat is very necessary.
"The Supreme Court must take the initiative. The government must be sincere on this, too," he said.