An Analysis of Rule of Law and the Separation of Judiciary in Bangladesh in light of the 8th Amendment Case and Masdar Hossain Case

* This paper was written in August 2014 as an assignment in an undergraduate course on Administrative Law.

Introduction:

Rule of law and the separation of powers, specifically the judiciary have been the inherent features of the Constitution since its adoption right after the independence of Bangladesh. The cases; Anwar Hossain Chowdhury v. Bangladesh[1] (hereinafter referred to as the 8th Amendment case) and Secretary, Ministry of Finance v. Masdar Hossain[2] (hereinafter referred to as the Masdar Hossain case) have had great implications on the two aforementioned principles and brought about significant changes in the interpretation and implementation of these two principles in the Constitution and also on the Legislative and Executive branches of the State.

The 8th Amendment Case:

Six permanent benches of the High Court Division were set up in the various Divisions outside Dhaka through the Constitution (Eighth Amendment) Act, 1988 (hereafter referred to as the Amendment) by the amendment of Article 100 of the Constitution. The Amendment was challenged on the basis of its constitutionality in two writ petitions which were summarily dismissed by the High Court Division; however, on appeal the Appellate Division declared the Amendment ultra vires to the Constitution on the fundamental ground that Article 7; ensuring the supremacy of the Constitution is a basic structure and thus an unalterable feature of the Constitution, thus, the power to amend the Constitution under Article 142 is not unlimited. The impugned Amendment because of its attempt to alter a basic feature of the Constitution was declared to be ultra vires. The majority was formed by Justice Badrul Haider Chowdhury, Justice Shahabuddin Ahmed and Justice M.H. Rahman; while Justice A.T.M. Afzal dissented.

Justice Badrul Haider Chowdhury enumerated 21 features of the Constitution of which some are part of the basic structure and hence, cannot be amended. He held that the impugned Amendment contravened with Articles 102 (Powers of High Court Division to issue certain orders and directions, etc.) and Article 44 (Enforcement of fundamental rights) of the Constitution. He opined that the People are the solitary holders of powers, the Executive, Legislative and the Judiciary function as per their will. He makes the following observations as to the meaning and interpretation of Article 7:

“58. On analysis the Article reveals the following:

(a) All powers in the Republic belong to the people. This is the concept of Sovereignty of the people. This echoes the words of the proclamation “by the mandate given to us by the people of Bangladesh whose will is supreme;

(b) Their exercise on behalf of the people, shall be effected only under, and by the authority of this Constitution. Limited government with three organs performing designated functions is envisaged. In the Proclamation it was said the President “shall exercise all the Executive and Legislative powers of the Republic” “till such time as Constitution is framed” and who will do all other things that may be necessary to give to the people of Bangladesh an orderly and just Government.

Hence separation of powers emerge as a necessary corollary of designated functions;

(c) Supreme Law of the Republic. That points to supremacy of the Constitution because;

(d) any law is void to the extent of inconsistency with the Supreme Law (i.e. the Constitution) which therefore contemplates judiciary;

(e)Supreme Court with plenary judicial power for maintenance of the supremacy of the Constitution.”[3]

Therefore, Justice Chowdhury clearly states that the principles of rule of law and separation of powers are envisaged in Article 7, along with the plenary judicial power of the Supreme Court as the guardian of the Constitution. He holds that the Constitution is the supreme law of the Republic and further states that, as per Article 7 itself any law that is inconsistent with the Constitution is void to the extent of its inconsistency.[4] He also held that even though the fundamental principles are not enforceable they are still an essential element of the Constitution by stating that:

“Though the directive principles are not enforceable by any court, the principles therein laid down are nevertheless fundamental in the Governance of the country and it shall be the duty of the state to apply these principles in making laws. It is a protected Article [8] in our Constitution and the legislature cannot amend this Article without a referendum. This alone shows that the executive cannot flout the directive principles. The endeavour of the Government must be to realise these aims and not to whittle them down.”[5]

Justice Shahabuddin Ahmed in concurrence with Justice Chowdhury held that the parliament only has a derivative constituent power and hence, the exercise of this derived power can be subject to judicial scrutiny. He held that the impugned Amendment contravened with Chapter I of Part VI of the Constitution as it was in direct conflict with the unanimity of the Supreme Court thereby rendering it dysfunctional and contravening the basic structure of the Constitution with regard to the supremacy of the Constitution and the separation and independence of the Judiciary. Justice Ahmed enumerated 8 fundamental aspects of the Constitution with formed its basic structure such as the supremacy of the Constitution, democracy, separation of powers, independence of Judiciary, etc. With regard to the structure of the Supreme Court, he held that:

“Like the permanent seats of the other two organs, namely the Executive and the Legislature, the seat of the Supreme Court is the capital of the Republic. This integrated Supreme Court is a part of the basic structure of the Constitution; it cannot be damaged directly or indirectly. Separation of the High Court Division from the Supreme Court is not permissible because it is an integral part of the Supreme Court, nor is it permissible to create a separate High Court under the Supreme Court as it will run counter to the unitary character of the State opening a door for ultimate disintegration of the State.”[6]

Justice Ahmed goes on to further elaborate the structural and functional problems that have arisen due to the impugned Amendment with regard to the functions of the newly created divisional benches and the power of Justices of the High Court Division.

Justice M.H. Rahman opined that Articles 27, 22, 31, 32, 44(1) and 102 of the Constitution provided for the furtherance of rule of law in the form of fundamental rights and also provided recourse in case they were arbitrarily intervened upon.[7] He further states that the impugned Amendment contradicted the provisions for the furtherance of rule of law by holding that:

“…the fundamental aims of our society is to secure the rule of Law for all citizens and in furtherance of that aim, Part VI and other provisions were incorporated in the Constitution. Now by the Impugned amendment that structure of the rule of law has been badly impaired, and as a result, the High Court Division has fallen into sixes and sevens; six at the scats of the permanent Benches and the seven at the permanent seat of the Supreme Court.”[8]

Therefore, Justice Rahman strongly opined that the rule of law as a basic pillar of the Constitution can never be disputed or disrupted even through constitutional amendments.

Justice A.T.M. Afzal, in his dissenting opinion, rejected the notion of a ‘basic structure’ and stated that the limitation on the power of amendment is an inherent part of Article 7 of the Constitution, it functions as the benchmark and all Articles of the Constitution can be amended. He opined that the impugned Amendment did not interfere with the jurisdiction of the High Court Division and has not rendered the Constitution ineffectual. He also held that the Supreme Court as the guardians of the Constitution has the duty to safeguard the Constitution through the exercise of its power of judicial review at the instance of aggrieved persons with great restraint and after weighing the entailing consequences.[9]

The Masdar Hossain Case:

The case of Secretary Ministry of Finance v. Masdar Hossain intrinsically held that the separation of judiciary as a Fundamental Principle of State Policy as elaborated in Article 22 of the Constitution must be applied during legislative and policy-making organs of the State and the fundamental principles are not meant to be treated as ornaments, but implemented through an organic process.[10] It was a writ petition filed by the members of the judiciary to enforce the principle of separation of the judiciary in order to ensure separate pay scales and recruitment of judicial service members. The honourable Appellate Division of the Supreme Court held that:

“Parliament cannot by law abolish the judicial service altogether and cannot amalgamate or unify the judicial service with other civil administrative service cadres or place them on par in respect of their conditions of service, salary and other benefits. That will be doing violence to the separation of powers as contained in the constitution.”[11]

The independence of the Judiciary is one of the basic pillars of the Constitution as enunciated by Articles 94(4) and 116A, and thus cannot be in any way be interfered with or curtailed.[12] The Appellate Division further held that in order to ensure proper furtherance of the provisions for the implementation of rule of law, the Supreme Court must exercise control and administer the judicial service and magistracy, and the opinion of the Supreme Court should hold priority over that of the Executive.[13] The Appellate Division went on to enumerate 12 directives for the implementation and enforcement of the basic feature of independence of the judiciary.[14] The first of the 12 Directives states the following:

“It is declared that the judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally 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]

The honourable Court stressed the Direction for the creation of a separate Judicial Pay Commission for the assessment and review of the pay scale of the judicial service members, such form of financial independence would go a long way to ensure the independence and unilateral functioning of the judiciary.[16] Furthermore, the honourable Court also directed the creation of a Judicial Service Commission which would have the independent and sole authority to recruit new members for the judicial service. Summarily, it brunt of the honourable Courts ratio decidendi can be stated as:

“Members of the judicial service wield the judicial powers of the Republic. They cannot be placed on par with the civil administrative executive services in any manner. Their nomenclature of service must follow the language employed by the Constitution. Formation and composition of the judicial service and recruitment and appointment rules of the judicial service are to be made under Article 115 by the President. Service rules regarding posting. promotion, grant of leave, salary, remuneration and other privileges shall be made separately in each case from the civil administrative executive service Cadre rules under Article 133 or when applicable, under Article 136, and those separate rules shall, be consistent with Articles 116 and 116A.”[17]

Therefore, the Appellate Division held that the constitutional basis of the recruitment, pay, posting and management of the Judiciary is separate from that of the Executive and hence, one unilateral body cannot perform the above-mentioned functions for the both the Executive and the Judiciary. More importantly, principally the Appellate Division held that for the unbiased and fair functioning of the Judiciary it is essential that the Judiciary is not the chained to the Executive through various administrative links.

Conclusion:

The aforementioned cases have drastically changed the constitutional landscape of Bangladesh. The 8th Amendment case not only enforced the supremacy of the Constitution but also provided fundamental outlines towards the interpretation of the constitution and the enforcement of its provisions. It held that the legislature does not have unfettered power to amend and alter the Constitution, thereby ensuring the furtherance of rule of law by enforcing the inherent check and balance mechanism that is aimed through the separation of powers. The Masdar Hossain Case goes a step further by providing policy directions to the government to ensure the independence of the judiciary and uphold the basic features of the Constitution, and also further the aims and objectives enunciated as the Fundamental Principles of State Policy.

Reference:

[1] Anwar Hossain Chowdhury v. Bangladesh (1989) 41 DLR (AD) 165.

[2] Secretary Ministry of Finance v. Masdar Hossain (2000) BLD (AD) 104.

[3] Anwar Hossain Chowdhury v. Bangladesh (1989) 41 DLR (AD) 165, para. 58.

[4] Ibid, para. 166.

[5] Ibid, para. 53.

[6] Ibid, para. 400.

[7] Ibid, para. 429.

[8] Ibid, para. 496.

[9] Ibid, para. 526.

[10] Secretary Ministry of Finance v. Masdar Hossain (2000) BLD (AD) 104, para. 4.

[11] Ibid, para. 65.

[12] Ibid, para. 57.

[13] Ibid, para. 76.

[14] Ibid, para. 76.

[15] Ibid, para. 76(1).

[16] Ibid, para. 70.

[17] Ibid, para. 51.