Secretary, Ministry of Finance v Masdar Hossain

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Secretary, Ministry of Finance v. Masdar Hossain
Court Supreme Court of Bangladesh
Court membership
Judge(s) sitting Chief Justice Mustafa Kamal
Justice Latifur Rahman
Justice Bimalendu Bikash Roy Choudhury
Justice Mahmudul Amin Choudhury

Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82 is a case of the Appellate Division of the Supreme Court of Bangladesh. The case concerned the separation of powers in Bangladesh. It is popularly known as the Masdar Hossain case. [1]

The separation of powers is a model for the governance of a state. Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in some parliamentary systems where the executive and legislative branches overlap.

Contents

Facts

In 1995, a writ petition was filed by Masdar Hossain, a district judge, [2] on behalf of 441 other civil court judges. The petition put forward the following points:-

<i>Ultra vires</i> Legal concept meaning powers are exceeded

Ultra vires is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires. If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid".

Constitution of Bangladesh

The Constitution of the People's Republic of Bangladesh is the constitutional document of Bangladesh. It was adopted on 16 December 1972. It provides the framework of the Bangladeshi republic with a parliamentary government, fundamental human rights and freedoms, an independent judiciary, democratic local government and a national bureaucracy. The constitution includes references to socialism, Islam, secular democracy and the Bengali language. It commits Bangladesh to “contribute to international peace and co-operation in keeping with the progressive aspirations of mankind”. The constitution has several controversial elements like Article 70.

The Dhaka High Court ruled in favor of the petition with a 12-point directive in 1997. The government appealed to the Appellate Division of the Supreme Court.

Judgement

In 1999, the Supreme Court reversed parts of the High Court ruling, but upheld the 12 point directive. It issued a further 12 point directive. The Supreme Court called for the formation of an independent judicial commission to select members of the judiciary, deal with matters of judicial salaries and manage discipline. The Supreme Court ruled that the constitution provided a framework for judicial independence. [3]

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.

Significance

The verdict led to the formation of the Bangladesh Judicial Service Commission. It was implemented by Chief Advisor Fakhruddin Ahmed during the caretaker administration in 2007.

Bangladesh Judicial Service Commission is a government commission that is responsible for the recruitment and examination of judges in Bangladesh and is located in Dhaka, Bangladesh. Hasan Foez Siddique is the present chairman of the commission.

Fakhruddin Ahmed economist and civil servant

Fakhruddin Ahmed is a Bangladeshi economist, civil servant, and a former governor of the Bangladesh Bank, the country's central bank.

See also

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References

  1. Professor M Rafiqul Islam. "Independence of the judiciary- the Masdar case". The Daily Star. Retrieved 2017-07-11.
  2. "Masdar Hossain says judiciary is free now". bdnews24.com. 2007-02-12. Retrieved 2017-07-11.
  3. "Secretary, Ministry of Government of Bangladesh Vs. Md. Masdar Hossain & others - The Lawyers & Jurists". Lawyersnjurists.com. 2011-05-03. Retrieved 2017-07-11.