Financial Independence Of Bangladesh Judiciary - Evaluating Masdar Hossain Case After Two Decades
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FINANCIAL INDEPENDENCE OF BANGLADESH
JUDICIARY: EVALUATING MASDAR HOSSAIN CASE
AFTER TWO DECADES
Md. Mohiuddin Khaled, Professor, Department of Law, University of Chittagong
ABSTRACT
The separation of the judiciary and its independence Has been ensured in the constitution of Bangladesh, but such independence was established only a few years back in 2007 through the famous Masdar Hossain case. Financial independence of the judiciary is not only a requirement but also a must for any state to ensure equity, justice and human rights. As the judiciary is considered the third pillar of the state in Bangladesh, a low financial Capacity would result in hindrances in the functional and administrative independence of the judiciary. This paper critically evaluates budgetary allocation for the judiciary, which has been consistently low for years. The paper also aims to argue the background, context and effects of not implementing the Masdar Hossain Case even after two decades of its pronouncement by the Appellate Division.
Keywords: Judicial Independence, Financial Autonomy, Separation of Judiciary, Masdar Hossain Case, Constitution.
1. Introduction:
The foundational principle of judicial independence is indispensable in democratic societies,1 epitomising the essence of a legal system as the ultimate arbiter for citizens in pursuit of justice. Rooted in the separation of powers, the judiciary's autonomy from the executive branch becomes paramount. Within the intricate constitutional framework of Bangladesh, constitutional provisions safeguarding judicial independence undergo persistent scrutiny. This paper endeavours to meticulously examine the historical trajectory and pragmatic manifestation of the financial aspects of judicial independence in Bangladesh, concentrating discerningly on the financial facets that substantially influence the judiciary's capacity to effectively discharge its constitutional duties.
Beyond the conventional understanding of the separation of powers, judicial independence encapsulates financial independence as an intrinsic component, endowing the judiciary with the authority to adjudicate based on legal principles sans external pressures. This financial autonomy is the sine qua non for the judiciary's unimpeded functioning, free from undue interference from other governmental branches. This legal research critically scrutinises the constitutional framework, parsing through provisions germane to financial matters and meticulously evaluating the scope of control wielded by the Ministry of Law, Justice, and Parliamentary Affairs over the judiciary. This legal research dissects past trends in budgetary allocations for the judiciary, unveiling a consistent pattern of meagre allocations that substantially impede financial independence.
The analysis probes into the practical instantiation of constitutional mandates, engaging with the scholarly discourse surrounding the nuanced contours of financial autonomy within Bangladesh's legal landscape. Persistent challenges in establishing financial independence have marked the legal historiography of Bangladesh's judiciary. Landmark jurisprudential milestones, such as Secretary, Ministry of Finance v Masdar Hossain (1999)2, have underscored the pivotal 1 Roger K. Warren, 'The Importance of Judicial Independence and Accountability' (January 2003) National Center for State Courts, p 1 https://www. ncsc. org/docs/default-source/ncsc/judicial-independence-accountability. pdf accessed 11 Jan 2024.
2 52 DLR (AD) 82
importance of financial independence for the judiciary. Commonly referred to as the Masdar Hossain Case, this adjudication traversed various facets, including the financial independence of the judiciary. This paper reiterates the case's pronouncements, emphasising that funds allocated to the judiciary in annual budgets should be disbursed sans executive interference, underscoring the judiciary's competence in fiscal selfgovernance. The concept of financial independence was directly mentioned in the Masdar Hossain Case which has not been ensured till today. However, the trajectory from legal pronouncements to actualised financial independence has been gradual and fraught with impediments. Implementing decisions, especially those about financial autonomy, grapples with challenges and delays.
An indepth historical analysis of budgetary allocations unveils that, in fiscal years 1999- 2000, 2007-08, 2015-16, and 2018-19, allocations for the judiciary represented a fractional portion of the overall budget. This chronic pattern underscores the persistent challenges in actualising financial independence within the context of Bangladesh's legal milieu.
2. The Notion of Judicial Independence:
The judiciary is considered the people's last hope in any jurisdiction.3 In a democratic and welfare state, a true separation of the judiciary is very much needed for the autonomous execution of its functions, constituting the primary objective of the judicial system. Independence of the judiciary refers to being separated from the executive power and real sense. The buzzword refers to the ability of the courts to make any decision without any influence on it, including other state organs.4 The ability to make any independent decision by the courts and tribunals is limited to regular judicial activities within or beyond the courtroom and includes the capacity to reach any desirable decision on its own.5 To develop such capacity of the judiciary, it needs fullfledged support from the other state organs, including infrastructural, monetary,6
3 Faozy, Folorunsho, 'Independence of the Judiciary; Fallacy or Reality?' (13 November 2021)
http://dx.doi.org/10.2139/ssrn.3962722 accessed 17 December 2024. 4 Gerald N Rosenberg, 'Judicial Independence and the Reality of Political Power' (1992) 54(3), The Review of Politics, pp. 369–98 http://www.jstor.org/stable/1407797 accessed 2 Feb, 2024. 5 Eddyono, Luthfi W., 'Independence of the Indonesian Constitutional Court in Norms and Practices' (2017) 3(1) Constitutional Review 71-97. 6 Expert-Foulquier, C., 'The Financial Independence of the Judiciary in France' (2020) 11(1) International Journal for Court Administration 6, https://doi.org/10.36745/ijca.300.
capacity-building and other required supports. 7 Basic Principles on the Independence of the Judiciary adopted by the Office of the High Commissioner for Human Rights (OHCHR) emphasises “the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions”. 8 The recent development of the concept of judicial independence in the international arena includes four aspects of independence, namely substantive independence of the judges, personal independence, collective independence and internal independence. 9 Though judicial independence is sin qua non of any democratic state,10 such independence is often politically abused by the executive,11 even in developed democracies, from the concept's inception.
12 This is widely regarded that one branch cannot exercise the ‘whole’ power endowed in another department; the Constitution of any country does not mandate complete and absolute separation among the three branches. 1314 When the entire authority of one branch of the government is exercised by the same authorities who hold complete authority over another branch, the essential principles of a constitution and separation of powers are compromised. 15 The idea of separation of power and independence of the state organs are deeply connected, but ‘separation’ and ‘independence’ have different implications regarding the executive, the parliament and the judiciary. 16
7 Ibid 371
8 The Office of the High Commissioner for Human Rights, Basic Principles on the Independence of the Judiciary (1985) https://www. ohchr. org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary accessed 2 Feb 2024. See General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Also see Bangalore Principles of Judicial Conduct (2000) adopted by the United Nations Office on Drugs and Crime, Vienna, which says in Principle 1 that “Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall, therefore, uphold and exemplify judicial independence in both its individual and institutional aspects. ” 9 Bari, M. Ershadul, 'The Dhaka University Studies. Part. F, IV; 1: 2' (1993) Volume 1, Issue 2, Dhaka University Studies Page 2.
10 A Hossain, Mollah, 'Independence of Judiciary in Bangladesh: An Overview' (2012) 54(1) International Journal of Law and Management 61–77 https://doi. org/10. 1108/17542431211189605. 11 Kirk A Randazzo et al. , 'Examining the Development of Judicial Independence' (2016) 69(3) Political Research Quarterly 583–93 http://www. jstor. org/stable/44018557 accessed 1 Feb 2024. Also see: Ibid 376
12 Irving R Kaufman, 'The Essence of Judicial Independence' (1980) 80(4) Columbia Law Review 671–701
https://doi.org/10.2307/1122136 accessed 27 Jan 2024.
13 Kilbourn v Thompson (1881) 103 US 168, 191.
14 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (London: Printed for J. Collingwood, 1823) 15 The Federalist No. 47 at 299 (J. Madison) (G.P. Putnam's Sons ed. 1908). See generally Kaufman, supra note 6, at 690; Kurland, 'The Constitution and Tenure of Federal Judges: Some Notes from History' (1969) 36 U. Chi. L. Rev. 665, 698.
16 Hannan, M. Abdul, 'Separation of Judiciary and Judicial Independence in Bangladesh: An Appraisal' (2021) SSRN 3783319 https://ssrn.com/abstract=3783319 accessed 1 Feb 2024.
2.1 Constitutional Position of the Independence of the Judiciary in Bangladesh
In Bangladesh, the independence of the judiciary has been in Article 22 of the Constitution of Bangladesh. Secretary, Ministry of Finance v Masdar Hossain [1999]17 further amplified the notion of independence of the judiciary in Bangladesh. After 2007, Bangladesh started implementing the separation of power, rendering the executive control over the judiciary.18
3. Financial Independence as Part of Judicial Independence:
Judicial independence is not only limited to exercising judicial power independently and without interruption from the other state organs but includes the financial solvency of these state organs. 19 This concept includes the judiciary's autonomy in managing its finances without undue interference from the executive or legislative branches of government. This justice-making department of the state is an important revenuegenerating body for the state through realizing court fees, fines, etc. It is evident that there is a strong connection between judicial independence and institutional quality assurance and capacity building. 20 An institution's Quality assurance depends on its financial capacity and budget allocation, which has been evident in many empirical studies. 21 Not limited to that, judicial independence directly promotes a positive change in the economic and social aspects.
Efficiency in the Judiciary requires full-fledged support of different needed resources while rendering its judicial responsibility. 22 Failure to provide such support cannot meet the international standard of administration of justice in a country. 23 The autonomy given to the judiciary at the level includes financial, judicial and administrative autonomy, which is a significant part of judicial
17 52 DLR (AD) 82
18 Doe, Jane, 'Much-Expected Separation of the Bangladesh Judiciary from the Executive Becomes Reality' (2 March 2007) LegalObserver https://www.legalobserver.com/bangladesh-judiciary-separation accessed 30 Jan 2024. 19 Ximeng, Liu, and Li Zhiwen, 'Efficacy of Judicial Independence in Explaining Financial Markets in Emerging Markets' (2023) 23(5) Borsa Istanbul Review 1132-1140.
20 Ibid 1133-1135
21 Abaidoo, R., & Agyapong, E. K., 'Financial Development and Institutional Quality Among Emerging
Economies' (2022) 24(3) Journal of Economics and Development 198-216, https://doi.org/10.1108/JED-08- 20210135. Also see Ahmed, F., Kousar, S., Pervaiz, A., & Shabbir, A., 'Do Institutional Quality and Financial Development Affect Sustainable Economic Growth? Evidence from the South Asian Countries (2022) 22(1) Borsa Istanbul Review 189-196, https://doi.org/10.1016/j.bir.2021.03.005.
22 Supra 7
23 Supra 6
independence. The Former Chief Justice of Kenya, Johnson Evan Gicheru, rightly pointed out in his paper, making a bold statement regarding the financial autonomy of the judiciary, stating: "The institutions that control the purse and the administrative support of the judiciary can also directly control the extent and efficiency in executing the role. It is simply a case of he who pays the piper calling the tune. The necessary judicial independence of the judiciary can not be achieved if the court finances are determined and dictated by the political organs of the Executive and the legislatures over whom the court should exercise judicial control. ”24 Financial independence empowers the judiciary to base decisions on legal principles and the merits of each case, avoiding succumbing to external pressures that could undermine the impartiality of the judicial process.
The relationship between the judiciary's financial autonomy and its daily activities integrity is apparent. Judges need the freedom to make decisions without concerns about retaliation or external interference. The concept of financial independence is intricately linked to judicial accountability, too. It has been rightly pointed out in the famous case that "....... the independence of Judiciary is not limited only to the independence from the executive pressure or influence, it is a wider concept which takes within its sweep independence from any other pressure and prejudice. It has many dimensions, viz fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong. ”25 Some scholars have distinguished financial independence and the financial autonomy of the judiciary.
26 When financial independence is dependent on the other organ of the 24 Gicheru, Johnson Evan, 'Financial and Administrative Autonomy of the Court' (9-13 August 2006) Southern African Judges Commission, Mozambique, chromeextension://efaidnbmnnnibpcajpcglclefindmkaj/https://www. venice. coe. int/SACJF/2007_04_LES_Maseru/Finan cial%20independence%20of%20the%20Courts. pdf accessed 5 Jan 2024 25 C Ravichandran lyer v Justice AM Bahttacharjee (1995) 6 JT (SC) 339 at 352, 1995 SCC (Cr) 953. Also see Hossain, Md Masder, 'How far have we ensured judicial independence in Bangladesh? ' (4 November 2022) The Daily Star https://www. thedailystar.
net/supplements/50-years-our-constitution-original-ideals-vsreality/news/how-far-have-we-ensured-judicial-independence-bangladesh-3160231 accessed 31 Jan 2024 26 William Scott Ferguson, 'Judicial Financial Autonomy and Inherent Power' (1972) 57(6) Cornell Law Review 975–990. Also see J. Ferejohn and L. D. Kramer, 'Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint' (2002) 77 New York University Law Review 965.
government, financial autonomy27 is a self-regulating mechanism of financing the judiciary at its own discretion.
4. Status Quo of Judicial Financial Independence in Bangladesh:
The independence of the Judiciary of Bangladesh is often a matter of debate. Law Committee led by Justice Kamluddin Hossain for a separate criminal court system in 1976, though the proposal did not get the government's support then. Later, more attempts were made, but none got a government mandate. Bangladesh entered into an independent judiciary era in 2007, but the real implementation of the independence of the judiciary has always been questioned. The historic Secretary, Ministry of Finance v Masdar Hossain (1999)28 was filed in the High Court Division on April 1, 1997. The Appellate Division gave the judgment on December 2, 1999. The democratic political governments did not formally implement the judgement for many excuses. At last, on November 1, 2007, by an unelected caretaker government.
Many politicians, including Cabinet Ministers, lashed out at the Masdar Hossain decision in asking to review the case on many occasions. 29 Judicial financial independence in Bangladesh is evident in many constitutional provisions. The judiciary has been given full independence with respect to its functions in other components that regulate the Judiciary in Bangladesh. The Constitution clearly pledged in the Preamble that the state should protect the ‘rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, for all citizens’ in any situation. 30 All the terms used in this paragraph of the Preamble are deeply connected with the judicial system, which ought to be independent and influence-free. The Constitution of Bangladesh provided provisions regarding financial independence, 27 B. Hayo and S.
Voigt, 'Explaining De Facto Judicial Independence' (2007) 27 International Review of Law and Economics 269–290. Also see William Scott Ferguson, 'Judicial Financial Autonomy and Inherent Power' (1972)
57 Cornell Law Review 975, available at http://scholarship.law.cornell.edu/clr/vol57/iss6/3.
28 52 DLR (AD) 82
29 Staff Correspondent, 'Masdar Hossain case verdict should be reviewed: Muhith' (4 July 2015) bdnews24.com https://bdnews24.com/bangladesh/masdar-hossain-case-verdict-should-be-reviewed-muhith accessed 14 Jan 2024.
30 Para 3, Preamble, The Constitution of the People’s Republic of Bangladesh
not financial autonomy. 31 Article 22 of the constitution has used the word ‘separation’32, which doesn't give any clear sense regarding judicial independence or autonomy. The constitution further reiterated the functional independence of the judges in Article 94(4) and Article 116A, which ensures the functional independence of the Supreme Court33 and Subordinate Court34 Judges separately. Again Article 88 of the Constitution ensures the remuneration payable to the Judges of the Supreme Court, but there is no such provision of financial security for the Subordinate Court Judges in the Constitution. As part of the Rules of Business35 provided in Article 55(4),36 the Ministry of Law, Justice and Parliamentary Affairs controls the posting, promotion and grant of leave as part of the control and disciplinary responsibility.
The absence of a separate secretariat for the judiciary has created a situation that which there is no alternative without having the Ministry of Law, Justice and Parliamentary Affairs as the alternative secretariat for the judiciary. Article 109 vests the superintendence and control power over the subordinate court given to the High Court Division, but again, Article 116 endows the power of control and discipline, specifically posting, promotion and grant of leave to the Ministry of Law, Justice and Parliamentary Affairs, adding a provision of consultation with the supreme court. In practice this provision of consultation is not so effective. Both articles has not made it clear what the situation would be if both the bodies contradict regarding any decision.
It is unclear which division of the Supreme Court will act under Article 116, where Article 109 keeps an unequivocal and independent power to control the subordinate courts.
31 Ibid 12
32 Article 22, The Constitution of the People’s Republic of Bangladesh. It states that “the State shall ensure the separation of the judiciary from the executive organs of the State.”
33 Article 94(4), The Constitution of the People’s Republic of Bangladesh.
34 Article 116A, The Constitution of the People’s Republic of Bangladesh. It states that “.... all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions. ” 35 Siddiquer Rahman, Mohammad, 'Rules of Business - Minister and Secretary' (28 July 1997) The Daily Star https://www. thedailystar. net/news/rules-of-business-minister-and-secretary accessed 2 Jan 2024. As per the Rules of Business, the Prime Minister can institute a ministry encompassing one or more divisions when deemed necessary. The Prime Minister is authorized to allocate a division, ministry, or multiple divisions or ministries to either the Prime Minister personally, a Minister, or a Minister of State. The apportionment of governmental functions among ministries and divisions adheres to the stipulations outlined in Schedule I of the Rules of Business.
The entirety of the business assigned to a ministry or division may be addressed under the general or specific directives of the Minister-in-Charge in accordance with the provisions delineated in the Rules of Business. Also see Cabinet Division, Government of the People's Republic of Bangladesh, 'Rules of Business' (1996) available in https://cabinet. portal. gov. bd/sites/default/files/files/cabinet. portal. gov. bd/legislative_information/d8e711a8_074 4_47d4_a1fd_fce1dfb1a5d7/Rules%20Of%20Business-2-19960001. pdf accessed 1 Feb 2024
36 Article 55(4), The Constitution of the People’s Republic of Bangladesh
Budgetary allocation of the judiciary is not given in a separate figure but given a collective amount for the Ministry of Law, Justice and Parliamentary Affairs where a portion is allocated in favour of the Supreme Court. The allocation given in favour of the Supreme Court is very low compared to the other state organs. The budget given in Favour of the Ministry of Law, Justice and Parliamentary Affairs is divided into twoseparate divisions for the ministry, i.e. The Law and Justice Division and The Legislative and Parliamentary Affairs Division.
4.1 Comparison and Analysis of Budgetary Allocation for the Judiciary
For a comparative and comprehensive understanding of judicial independence in terms of financial capacity, several tables will show different layers of budgetary allocation for the judiciary of Bangladesh. Table 1: Budgetary Allocation for the Supreme Court of Bangladesh Percentage Fiscal Year Budget for the Budget for the (%) (Recent to Ministry of Law, Supreme Court of Justice and Parliamentary Past) Bangladesh Affairs (Crore/BDT) (Crore/BDT) 2023-2024 1,94237 12.20% 2022-2023 1,92339 11.96%
37 'Budget FY24: 1,942C allocated for law ministry' (Dhaka Tribune, 1 June 2023) Available at
https://www.dhakatribune.com/bangladesh/312644/budget-fy24-1-942c-allocated-for-law-ministry accessed January 3, 2024
38 ibid
'National Budget Speech 2022-2023' (National Board of Revenue, June 2022) https://nbr.gov.bd/uploads/budget/National_Budget_Speech_FY2022-23_English_Version.pdf accessed January 3, 2024
40 Ibid
2020-2021 11. 36% The table shown above explains the percentage allocated for the Supreme Court of Bangladesh, which is the custodian of the Constitution and apex court of the State. The budgets allotted for the Supreme Court are lower than different universities, departments and less important bodies of the State. The Supreme Court of Bangladesh is very rarely seen to be vocal regarding the budget allotted to them as an independent organ. Table 2: Budgetary Allocation for the Supreme Court of Bangladesh compared to the Total National Budget Total National Percentage Fiscal Year Budget for the Budget (%) (Recent to Supreme Court of Past) (Tillion/BDT) Bangladesh (Crore/BDT) 2023-2024 7. 6143 0. 031% 2022-2023 6. 7844 0. 033% 2021-2022 6. 0345 0. 036% 41 Md. Zakir Hossain, 'E-Judiciary and an Analysis of Budgetary Allocation for Judiciary' (The Daily Sun, 13 June) https://www. daily-sun.
com/post/487316/EJudiciary-and-an-Analysis-of-Budgetary-Allocation-foraccessed January 2, 2024
42 Ibid
43 'Chronology of Bangladesh's National Budget: From 1972-73 to 2022-23' (The Financial Express, 31 May 2023) https://thefinancialexpress.com.bd/national/chronology-of-bangladeshs-national-budget-from-1972-73-to-2022-
23 Accessed 6 Jan 2024
44 Supra 39
45 Ibid
46 'Annual Report, 2021' (The Supreme Court of Bangladesh)
https://www.supremecourt.gov.bd/resources/contents/Annual_Report_2021.pdf Accessed 7 Jan 2024
2020-2021 5. 6847 0. 020% 2019-2020 5. 2349 0. 038% The table shown above compares the tiny budget of the Supreme Court of Bangladesh with the total National budget. When the total National budget is figured in Trillion, the budget for the Supreme Court has been less than 40% in the past 5 years, which is considered one of the hindrances in justice justice-making process by the court. Though the executive branch of the government claims to make the higher Judiciary free and independent in its function and administration, the real scenario is completely different as such a low budget certainly obstacles the functional and supervisorial independence of the guardian of the judiciary. Table 3: Budgetary Allocation for the Supreme Court of Bangladesh compared to the Total National Budget (2000-2024) Fiscal Year Total National Budget Percentage (%) (Recent to Past) (Tillion/BDT) 2023-2024 7.
6151 0. 312% 2018-2019 4. 6552 0. 366%
47 Ibid
48 Supra 42
49 Ibid
50 Supra 42
51 Supra 41
52 Ibid
2015-2016 2.9553 0.511% 2007-2008
999.62 bn54
0.364% 1999-2000
342.52 bn55
0.371% In the fiscal years 1999-2000, 2007-08, 2015-16, and 2018-19, the allocations for the judiciary constituted 0.37%, 0.364%, 0.511%, and 0.366%, respectively.56 These statistics show the low allocation of budget or hindrance to the financial independence of the Judiciary of Bangladesh is not a new phenomenon but a continued process from the past. Table 4: Budgetary Allocation for the Ministry of Law of Bangladesh and India Budget for the Ministry of Budget for the Ministry Fiscal Year Law, Justice and Parliamentary Affairs, of Law and Justice, India (Recent to Past) Bangladesh (Crore/Rs.) (Crore/BDT) 2023-2024 1,94257 6,461.00 (Interim)58
53 Ibid
54 Ibid
55 Ibid
56 Md. Zakir Hossain, 'E-Judiciary and an Analysis of Budgetary Allocation for Judiciary' (Daily Sun, 13 June 2020) https://www.daily-sun.com/post/487316/EJudiciary-and-an-Analysis-of-Budgetary-Allocation-foraccessed Jan 15, 2024.
57 'Budget FY24: 1,942C allocated for law ministry' (Dhaka Tribune, 1 June 2023) Available at
https://www.dhakatribune.com/bangladesh/312644/budget-fy24-1-942c-allocated-for-law-ministry accessed January 3, 2024
58 'Law ministry gets Rs 6,461 crore allocation in Interim Budget 2024' (Money Control)
https://www.moneycontrol.com/news/business/budget/law-ministry-gets-rs-6461-crore-allocation-in-interimbudget-2024- 12172901.html#:~:text=The%20Central%20government%20has%20allocated,was%20allocated%20Rs%204%2 C752%20crore January 14, 2024
2022-2023 1,92359 4054.9460 2020-2021 3229.9462 2023-2024 1,94263 2778.61 Our neighbouring Judiciary of India allows a better allocation of budget for the minister of law and Justice in the Supreme Court of India. Recently, India has initiated huge projects for E-Judiciary throughout the country. The alignment of the Executive and the Judiciary has been stronger in recent days in India which helps the judiciary to ensure its functional and administrative independence of the judiciary. Considering the statistics shown above, the overall evaluation of financial independence as part of the notion of judicial independence in Bangladesh could be in better shape. Ensuring equity, justice and human rights pledged in the constitution of Bangladesh cannot be satisfactorily rendered, which can be witnessed in our court system.
5. Reflection of Financial Independence in the Masdar Hossain Case:
Secretary, Ministry of Finance v Masdar Hossain (1999),64 also known as the famous Masdar Hossain Case, was a milestone case for establishing a separate and independent judicial system. The case decided many basic matters regarding the independence of 'National Budget Speech 2022-2023' (National Board of Revenue, June 2022) https://nbr.gov.bd/uploads/budget/National_Budget_Speech_FY2022-23_English_Version.pdf accessed January 3, 2024. 60 'Union Budget Data for the Ministry of Law and Justice (2016-17 to 2022-23)' (Budgets for Justice) https://budgets.justicehub.in/datasets/union-budget-data-for-the-ministry-of-law-and-justice accessed January 12, 61 Md. Zakir Hossain, 'E-Judiciary and an Analysis of Budgetary Allocation for Judiciary' (The Daily Sun, 13 June) https://www.daily-sun.com/post/487316/EJudiciary-and-an-Analysis-of-Budgetary-Allocation-foraccessed January 2, 2024
62 Supra 57
63 'Budget FY24: 1,942C allocated for law ministry' (Dhaka Tribune, 1 June 2023) Available at
https://www.dhakatribune.com/bangladesh/312644/budget-fy24-1-942c-allocated-for-law-ministry accessed January 3, 2024
64 52 DLR (AD) 82
the judiciary. This case gave a complete scenario establishing an uninterrupted and separate judiciary. The financial independence of the Judiciary was also discussed in the case from paragraphs 61 to 65 of the judgment. Mustafa Kamal CJ. In his observation mentioned that “The judicial service is not service in the sense of “employment”, The Judges are not the employees As members of the judiciary they exercise the sovereign judicial power of the State. ”65 In exercising such sovereign judicial power finance share capacity as the institution of the judiciary has to be ensured as part of it. In paragraph 57 of the judgement, the independence of the Judiciary as one of the basic pillars of the constitution, stating that “The independence of the judiciary, ........
is one of the basic pillars of the Constitution and cannot be demolished, whittled down, curtailed or diminished in any manner whatsoever, except under the existing provisions of the Constitution. ”66 The apex Court stated some Essentials to ensure judicial independence, amongst which functionally independence job security are being highlighted. 67 The Court reiterated about administrative and financial independence of the judiciary In paragraph 63 where paragraph 64 explains the importance of the financial independence of the Supreme Court. Mustafa Kamal CJ.
’s bold observation regarding the financial independence of the judiciary is as follows: “The financial independence of the Supreme Court is inextricably connected with the functioning of the subordinate judiciary as the High Court Division has a controlling role and a supervisory role, and the Supreme Court has a consultative role connected with the subordinate judiciary. The financial independence of the Supreme Court can be secured if the funds allocated to the Supreme Court in the annual budgets are allowed to be disbursed within the limits of the sanctioned budgets by the Chief Justice without any interference by the Executive, i. e. without seeking the approval of the Ministry of Finance or any other Ministry. The Chief Justice will be competent to make reappropriation
65 Para 44, Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82
66 Para 57, Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82
67 Para 61-62, Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82
of the amounts from one head to another, create new posts, abolish old posts or change their nomenclature, to upgrade or downgrade, etc., as per requirements, provided the expenditure incurred falls within the limits of the budget allocation.’’68 Though the case reinforced the financial independence of the judiciary, the decision given in 1999 and implemented after years in 2007, actual financial independence has never come to light in more than 50 years aged Bangladesh as an independent state.
6. Expectations vs Reality of Financial Independence of the Judiciary in Bangladesh:
It was really a phenomenal development in the field of Judiciary through the Masdar Hossain Case. The case helped establish an independent and influence-free judiciary. It was unfortunate that political governments are different tensures But never insured the full freedom of the judiciary in its true sense. The people who are the ultimate benefit of the judicial system as a result caused by such deficiency of budgetary support. There have been positive changes in the state mechanism in recent days, and we can see executive has been generous in granting extra budget allocation for the judiciary on request. Synchronisation among state organs would reflect the constitutional aspiration and spirit.
6.1 A Call for Establishing E-Judiciary:
As a Constitutional organ, we cannot think of a ‘Digital Bangladesh’ without a digital judiciary. The current sluggish, disruptive, and costly legal system fails to address the grievances of the people effectively. Rural marginalized individuals experience hardships at every stage, often falling victim to middlemen, court officials, or even lawyers, resulting in a reluctance to seek remedies. The prevalence of illegal transactions, corruption, bribery, and unaccountability persists due to the lack of digitalization. Establishing an E-Judiciary requires a huge budgetary allocation for the judiciary, which can ensure proper and prompt justice for the people.
68 Para 64, Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82
7. Concluding Remarks:
In conclusion, this paper delves into the nuanced contours of judicial independence, particularly its financial independence, within the legal framework of Bangladesh. The comprehensive analysis, extending from constitutional provisions to landmark cases such as Secretary, Ministry of Finance v Masdar Hossain (1999), illuminates the intricate challenges hindering the actualization of financial autonomy for the judiciary. The recent examination of budgetary allocations, especially the consistent pattern of meagre funds in past fiscal years, highlights the persistent obstacles in attaining substantial financial independence.
In navigating these complexities, the research underscores the imperative for sustained efforts to fortify the financial independence of the judiciary, aligning legal mandates with pragmatic fiscal support to ensure an unwavering commitment to justice within the democratic fabric of Bangladesh. It has been two decades69 since the decision given in the Masdar Hossain Case, but the reality is still shimmering due to not having an independent judiciary.
69 The Judgment was pronounced by the Appellate Division on December 2, 1999