A separate secretariat for the judiciary

Sohul Ahmed Moku: The recent June seminar on the topic of “Judicial Independence and Efficiency” was held in Dhaka. The seminar was organised by the Supreme Court at Inter Intercontinental Dhaka hotel.

The Chief Justice Syed Refaat Ahmed emphasised the “utmost urgency” of establishing such a secretariat.

The head of Government, Prof Yunus also said a separate secretariat would grant the judiciary the structural autonomy to adjudicate without external pressure.

Unfortunately, he failed to declare a separate secretariat., Hence, Justices, all Judicial officers, and Lawyers were Disappointed.

In these circumstances, all judicial judges, officials, and lawyers must ask the Head of State and Law Adviser to give priority to this issue; otherwise, they will go on strike, as it is a very vital step.

The speakers include Appellate Division’s Justice Ashfaqul Islam, Law Adviser Prof Asif Nazrul, and Attorney General Md Asaduzzaman. The other speakers included AM Mahbub Uddin Khokon, president of the Supreme Court Bar Association; Zainul Abedin, vice-chairman of the Bangladesh Bar Council; and Stefan Liller, UNDP resident representative in Bangladesh.

Article 22 of our constitution declares the separation of the judiciary from the Executive body as a basic principle of the state.

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The Chief Justice Syed Refaat Ahmed’s initiative takes steps for the establishment of a separate secretariat for the judiciary. The Supreme Court has proposed establishing a separate secretariat for the judiciary to make it truly independent and effectively separate it from the Executive body.

A draft organogram of the secretariat was annexed to the proposal written by Chief Justice Syed Refaat Ahmed, and the SC administration forwarded the proposal, along with a concept paper describing the necessity and objectives of a separate secretariat, to the Executive body, a few months ago. Previously, the political parties in power never really wanted it. As an example, the following judgment had not been implemented.

The highest court of Bangladesh in the judgement of the Civil Appeal Case No. 79/1999, better known as the Masdar Hossain case, of the Appellate Division of the Supreme Court, has cleared the way for the separation of the judiciary from the executive by making a complete outline. One of the basic foundations of the separation of powers outlined in the judgement is the establishment of a separate secretariat for the judiciary. In the judgment of Masdar Hossain case, the issue of institutionalisation of judicial separation has come up several times to ensure the judiciary’s independence. And the most effective way to separate the judiciary is to establish an independent judiciary secretariat. For this reason, in the judgement, the Supreme Court has considered the establishment of a separate secretariat for the judiciary by completely abolishing the joint jurisdiction of the law ministry and the Supreme Court in running the current dual rule that is the subordinate court judges’ recruitment, transfer, discipline etc. as an important adjunct of the separation of powers.

in terms of Article 109 of our constitution, the supervision and control of subordinate courts and tribunals is the exclusive prerogative of the High Court Division. Therefore, the establishment of a separate judicial secretariat is essential for the smooth implementation of this constitutional obligation.

Read More : Judicial Independence Is Non-Negotiable

Now, the nonpolitical government is in power; therefore, the Government has the power the implement this proposal. In the context of the unforgettable July-August mass uprising, now is the best time to ensure true independence of the judiciary by implementing the verdict of the Masdar Hossain case.

If it is implemented, then that will end the Executive body’s control over the lower courts. At present, the Executive body acts as the secretariat for the judiciary and therefore, it can interfere in recruitments, transfers and promotions of lower court judges. Most importantly, the Court’s order was implemented by the Executive body by their administration as a result of justice delayed and public suffering. If any order is made against the Executive body, then they would not implement such order.

The lawyers and judicial community have long been demanding a separate secretariat for the judiciary.

Author : Sohul Ahmed Moku; Advocate of the Bangladesh Supreme Court & Lawyer, the Supreme Court of England. Email: sohulm59@gmail.com