Despite a lapse of more than 10 years since the separation between the judiciary and the executive, the government is yet to establish an independent secretariat for the judiciary. The failure to establish a separate secretariat for the judiciary has ushered in the culture of executive autocracy over the constitutional imperative of the separation of the power militated against the creation of an independent judiciary. On November 1, 2007, the government separated the judiciary from the executive in accordance with the verdict in the Masdar Hossain case.

Apart from the establishment of an independent secretariat, the judiciary has also suffered from an acute crisis of courtrooms, resulting in a low rate of disposal of cases as the judges have to conduct their judicial functions by sharing courtrooms with each other. Currently, around 32 lakh cases are pending before the courts across the country. Among these, more than 27 lakh cases are pending before the lower courts and more than four lakh cases have remained pending before the High Court (HC) Division and the Appellate Division of the Supreme Court (SC).  

Masdar Hossain, a lower court judge, lodged a writ petition with the HC seeking an order for the separation of the judiciary from the executive, as required under Article 22 of the Constitution.

In May 1999, the HC Division issued a directive to the government to separate the judiciary—both higher and lower—from the executive within eight weeks. This ruling prevailed on appeal in November 2000 and was reaffirmed in the revision case in June 2001 in the Appellate Division.

Finally, the SC in a landmark verdict issued a 12-point set of directives to the government. These included the establishment of a separate secretariat for the judiciary.

It asked the government to implement the separation of the judiciary without any constitutional amendment as soon as possible.

The then government, however, sought 26 extensions to implement the ruling and eventually left office in October 2006 without separating the judiciary. The interim caretaker government, which assumed office after October 2006, announced the separation in January 2007. It also enacted four sets of rules to implement this separation.

The then chief justice, CJ Muzammel Hossain, opened a monument on the SC premises to establish a separate secretariat for the judiciary. Later, he wrote a letter to the Prime Minister to open a formal monument for the separate secretariat of the judiciary.

However, there has been no new development in this respect, sources in the SC said.

The apex court has repeatedly urged the law ministry to set up a separate secretariat for the judiciary, but to no avail.

Senior SC lawyer and counsel in the Masdar Hossain case, Barrister M Amir Ul Islam, pointed out that the judiciary would be able to expedite its activities with a separate secretariat, as it can function smoothly without any bureaucratic entanglement.

Former Supreme Court Bar Association (SCBA) president Advocate Khandaker Mahbub Hossain said the SC has not been able to directly take action against judges of the lower court due to the absence of a separate secretariat.

On October 31 last year, Chief Justice Surendra Kumar Sinha said that Article 116 of the Constitution was the main reason for the judiciary’s slow work as it made way for a “dual rule”.  

Article 109 says that the HC Division shall have superintendence and control over all courts and tribunals subordinate to it. However, the judiciary could not play its due role as Article 116 created hindrances for the judiciary to work properly, Sinha pointed out.

“Article 116 makes way for a dual rule in the judiciary, as it is not possible for the SC alone to do all the work including subordinate court judges’ promotion, transfer and disciplinary action. Judges cannot be appointed in many districts due to the dual rule,” he observed in a statement issued on the occasion of the ninth anniversary of separation of the judiciary from the executive.

“For this, judicial proceedings are being hampered, increasing the sufferings of litigants,” he added.

However, law minister Anisul Huq disagreed with Sinha’s opinion, saying that the judiciary was working independently.