by Ali Mashraf
Center for Legal Dialogue (CLD), a newly found student organization consisting of students of Department of Law, University of Dhaka (DU) organized its first event, titled ‘Masdar Hossain Case: A New Dimension to the Independence of Judiciary’ at the DUCSU Building of DU on February 19, 2018. Mr. Abdur Rahman Mazumder and Mr. Asadullahil Galib, two final year law students of DU were the speakers at the event while Mr. Mohammad Golam Sarwar, Lecturer of Law, DU adorned the event as the chief guest. Several students from various departments of DU attended the discussion.
At the onset, Abdur Rahman Mazumder divided the discussion into two parts, stating that the background of the filing of the case would be dealt by him while Asadullahil Galib would talk on the Masdar Hossain case and its aftermath. He propounded that the idea of an independent judiciary was a relatively modern one as influenced by Montesquieu’s theory of separation of powers. Furthermore, he explained the entire concept of separation of the judiciary from the clutches of the executive and the need for an independent judiciary.
As the discussion progressed, Mr. Mazumder went on to describe the components of an independent judiciary and the situation of our judiciary from the British period up to the independence of Bangladesh. Citing the Constitutional provisions provided in Articles 114, 115, 116 and 116A in the 1972 Constitution as well as the provisions in those Articles after various amendments, he explained how the amendments gradually led to the landmark Masdar Hossain case. He concluded by saying that the existing practice of the executive trying to have some form of control over the judiciary is not the fault of the executive itself, rather it had become a part of the system.
Afterwards, Asadullahil Galib spoke at length on the Masdar Hossain case, the core issues of the case and the aftermath of the judgments of the apex court. He pointed out that the case itself was not filed with the aim of separating the lower judiciary from the executive rather that was a by-product of the case. He analyzed the judgments of both divisions of the Supreme Court and the issues that were dealt with by the courts. Moreover, he elaborately talked about the differences between judicial service and civil service with regard to the different parts each of these have been placed in our Constitution despite both being service of the republic.
Mr. Galib cited the 12 point directives given in the Madar Hossain case and how each of the directives has been implemented so far after the verdict. While discussing the aftermath of this case, he referred to the fact that it was the caretaker government of 2007 that actually implemented the Masdar Hossain verdict which finally led to the independence of the lower judiciary from the executive on November 1, 2007. At the end, he observed that while the judiciary has been separated from the executive as contemplated in Article 22 of our Constitution, it is yet to be a fully independent organ of the state.
Mr. Mohammad Golam Sarwar then addressed the audience and lauded the effort of CLD in organizing such an event. He extended his help and guidance to the organization and noted that such initiative by the students is the ideal way of exchanging views and sharing knowledge among their peers. He wished all the success to CLD for its upcoming ventures.
Ali Mashraf is a Special Correspondent for The FutureLaw Initiative