The 1st day of November 2007 is taken to be the day when the Judiciary was formally separated from the Executive.On this day the implementation of the legendary judgement of the Supreme Court of Bangladesh in the case of Secretary, Ministry of Finance Vs. Md. Masdar Hossain and Others, commonly known as Masdar Hossain case, wascommenced. In that case, the Apex Courtdeclared that the sub-ordinate Courts should be allowed a considerable freedom from the control of the Executive. The Executive, the Judiciary and the Legislature are the organsthat are at the centre of modern democratic society that needs to function concurrently and collectively yet independently for the stability of any country.

The independence of Judiciary is essential to ensure that citizen's rights are not infringed by the other two organs of a State. The origination of the concept of an independent judiciary is derived from the doctrine of separation of powers coined by the French philosopher Montesquieu. The main essence of the doctrine imposes a boundary among the three organs so that the government remains fair and accountable by creating checks and balances on the use of power. The doctrine also enumerates that in interpreting and applying the law, judges act independently and without interference from the parliament or the executive. This means, Judicial Independence is conditional upon the independence of judges.

The echo of the doctrine has been used in many instances by our Supreme Court. A notable reflection can be seen in the case of Idrisur Rahman V Bangladesh where it observed that "the judiciary stands between the people of the country and the State as a bulwark against Executive pressure, excesses and misuse of power by the Executive".

Examples of Apex Courts overseas working around jurisprudential questions regarding the doctrine are not unheard-of. In the famous case of Valente v R, the Supreme Court of Canada in provided three requirements for judicial independence, which are security of tenure of judges, financial security, and institutional independence in administrative matters relevant to the functioning of the judge. The Indian Supreme Court in All Indian Judges Association vs Union of India and others (1993) opined, "The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the members of the judiciary.". These views were adopted by our Supreme Court in Masdar Hossain case.

In Bangladesh, the separation of the judiciary and its independence are mandates enshrined under the aegis of our Constitution. The framers of our constitution explicitly intended to separate the judiciary from the executive. Dr Kamal Hossain, Chairman of Constitution Drafting Committee,in his constituent assembly speech stated, "We have explicitly separated the judiciary from executive� We have also brought the magistrates of lower Courts and criminal Courts under the purview of the Supreme Court." Our Father of the Nation Sheikh Mujibur Rahman in his inauguration speech of Supreme Court told, "The Constitution has given full independence to the Courts, and no one will interfere in it.

Article 22 of the Constitution provides that "the State shall ensure the separation of the judiciary from the executive organs of the State." Article 94(4) states, "the chief justice and the other judges of the Supreme Court of Bangladesh shall be independent in the exercise of their judicial functions." The same view is mirrored in article 116A regarding the judges and judicial magistrates of the subordinate courts.

Glimpse of attempts when judiciary was tried to made separate:
Despite the constitutional mandate, the separation of the judiciary was not readily enforceable. The judges of subordinate courts used to be appointed as civil service cadres thus under the executive control. In 1976 an attempt was made to separate the judiciary from the executive. A Law Committee headed by Mr Justice Kemaluddin Hossain recommended that subordinate judiciary having criminal jurisdictions should be separated from the executive in some stages. Similar and successive attempts were made in 1987 and 1991.

In 1995, Mr Masdar Hossain filed a writ petition before the Hon'ble High Court seeking a declaration to implement and carry out the mandate of the Constitution in pursuance of separating the judiciary. Subsequently, in 1999, the Supreme Court conclusively determined the matter with 12 directions to the Government to establish a separate Judicial Service Commission, to establish a separate pay commission, to enact laws to regulate posting, promotion, grant of leave, discipline, allowances, pension for the judges etc.

Since the pronouncement of the judgment of Masdar Hossain case, successive Governments were leisurely inimplementing the Supreme Court direction.The last caretaker government n 2007, however, adopted a positive attitude to separate the judiciary from the executive byenacting service rules and bringing changes in the existing Code of Criminal Procedure. These were the major changes that removed the barriers in the separation of Judiciary from executive control. Finally, on 1st November 2007, the nation witnessed the historic event of the formal separation of the judiciary from the tethers of the executive.

The historic separation brought some substantial changes in the judiciary. The number of judges of the subordinate judiciary increased by six times, from 301 in 2006 to 1901 in 2020. The increase in number of disposal of cases was also significant. In 2019, more than one lac cases were disposed of in the High Court Division while more than 10 lac cases were disposed of in subordinate Courts. After the separation of the judiciary, the Government undertook significant infrastructural developments to expedite judicial proceeding. Construction of new Chief Judicial Magistrates Court buildings in all 64 districts is almost complete. New Supreme Court buildings are being erected to make way for adequate High Court Division benches.

Nevertheless, it is argued whether such separation of our judiciary is a separation in true sense. The separation accompanies many drawbacks. Under the Judicial Service Discipline Rules 2017, the appointment, posting, promotion and removal of judicial officers of the subordinate judiciary are still under the control of the President. There are no specified rules for the appointment of judges for the Supreme Court. There is no separate secretariat for the judiciary. Furthermore, the judiciary is at the mercy of the executives for its finances and budgets.

Moreover, the dilemma of the judgment of the 16th Amendment Case and subsequent consequences have raised serious questions regarding the independence of the judiciary. Pirojpur district judge was transferred hours after ruling against former lawmaker in 2020 posing parallel questions regarding the independence of the judiciary.

Where there are no alternatives to independence of the judiciary for enforcing the rights of citizens, absolute separation from the executive and legislature is neither possible nor desirable for good governance in any democratic ecosystem. Let me conclude by echoing with the High Court Division that, if the judiciary truly remains separate and distinct from the legislature and the executive, the peoples' power will never be endangered.
The writer is an advocate, Supreme Court of Bangladesh & Head of Chambers, Law Lab