Is separate secretariat sufficient to pave way for independent judiciary?

The independence of the judiciary means the ability to conduct justice independently, free from interference from the legislative and executive branches. The Constitution of Bangladesh also mentions the establishment of an independent and impartial judiciary. The judiciary has not been able to become independent even in the last 26 years since the verdict in the Masdar Hossain case. Finally on November 30, the Supreme Court issued a Secretariat Ordinance for the complete independence of the judiciary. However, legal experts have expressed doubts about whether this separate secretariat will be sufficient for the complete independence of the judiciary.

Independence of the judiciary means conducting justice independently and impartially, free from interference or influence from the executive and legislative branches of the government. This means that the judiciary will work according to the constitution and law without being subject to any political or external pressure and will protect the rights of the people. To this end, the High Court in 1997 and the Appellate Division of the Supreme Court in 1999 gave final judgments in the Masder Hossain case regarding the separation of the judiciary from the executive branch. In that judgment, 12-point instructions were asked to be implemented.

The 12-point directives are
1. According to Article 152 (1) of the Constitution, the work of all state departments will fall within the Service of the Republic. However, the work and structure of the judiciary are very different from that of the civil service of the republic. The judiciary cannot be merged with other civil services.

2. Judicial magistrates must be separated from the executive branch and magistrates of the executive branch cannot perform judicial work. According to Article 115 of the Constitution, the President can make rules for the creation of posts, appointment procedures, appointment and transfer of judicial magistrates and other functions.

3. According to the Civil Service Order 1980, all magistrates are appointed together through the BCS examination under the PSC. Appointment together is unconstitutional.

4. After receiving this judgment, the Judicial Service Commission rules and commission must be formed as soon as possible. This commission will have a majority of the Supreme Court. There will be no discrimination on the basis of men and women in this commission.

5. According to Article 113 of the Constitution, the President shall formulate the service rules (recruitment, posting, transfer, promotion and leave, etc.) of all members of the judiciary.

6. According to Article 115 of the Constitution, the President shall formulate the Judicial Service Pay-Commission Rules.

7. According to Article 116 of the Constitution, the Supreme Court shall have the power to control judicial magistrates.

8. The judiciary shall not be under the National Assembly or the Executive Branch and all judges, including judicial magistrates, shall work independently.

9. The Executive Branch shall have no influence on the formulation of the annual budget of the judiciary (lower courts). This budget shall be formulated and allocated by the Supreme Court.

10. The members of the Judicial Service shall be under the jurisdiction of the Administrative Court.

11. According to this judgment, no amendment to the Constitution is required for the separation of the judiciary. However, if an amendment to the Constitution is required to make the separation more meaningful, it can be done. and

12. Judicial Pay Commission: Until the Judicial Pay Commission recommends to the President to increase the salaries and other benefits of the members of the judiciary, they will enjoy all its facilities according to the current structure.

The implementation of these instructions has not been seen much in the last 26 years. However, on November 30, the Supreme Court Secretariat Ordinance, 2025 was issued. Through this, the judiciary has been completely separated from the executive branch. But legal experts are skeptical about whether the judiciary will be completely independent through this.

In this regard, constitutional expert Dr. Shahdeen Malik told Views Bangladesh: "The independence of the judiciary is a challenging issue and to ensure this, the vigilant eyes of the citizens, political will and an effective constitutional framework are needed. To keep the judiciary independent, it must be ensured that the judges can conduct judicial work impartially without interference from any other department of the government."

"The 12-point instructions of the Masdar Hossain case for an independent judiciary have not yet been properly implemented. Now there is a separate secretariat for the judiciary. But even then, the judiciary will not be independent if the government does not have the will. It is just a separate secretariat, which will be controlled by the Chief Justice. But if the government interferes there too, will they be able to work independently?" he added.

Senior Supreme Court lawyer Ahsanul Karim told Views Bangladesh: "Setting up a separate secretariat for the judiciary is a good news. But the 12-point directives of the Masdar Hossain case have to be implemented. For this, the government has to be liberal. The government can show its power in all areas, including appointment of judges, transfers, promotions, or the activities of the Supreme Judicial Council. It can be in different ways. Because no one is outside the government. Therefore, there is doubt whether the judiciary will be completely independent even if it is separate."

Senior Supreme Court lawyer Advocate Manzil Murshid told Views Bangladesh: "Even after 26 years of the final verdict to separate the judiciary from the executive, except for one of the 12-point directives of that verdict, the rest have not been implemented. It is disappointing. Therefore, it is difficult to say to what extent the Supreme Court Secretariat can actually keep the judiciary free and independent from government interference. Besides, an independent judiciary means ensuring justice for all - this issue must also be established."

However, Attorney General Md. Asaduzzaman said: "The Supreme Court ruled in 1999 to make the judiciary independent. But those who were in power in the last 26 years have not implemented that order. The current interim government has created a separate secretariat for the judiciary. Now we have to take initiatives to ensure the independence of the judiciary. It will be implemented later or later. I hope the judiciary will now be truly independent."