How Was the Judiciary Separated by the Masdar Hossain Case Despite Article 22 Being Non-Enforceable?

Supreme Court of Bangladesh

The Masdar Hossain case is a landmark constitutional case concerning the separation of the judiciary from the executive in Bangladesh. However, an important constitutional question often arises in relation to this case: if Article 22, being part of the Fundamental Principles of State Policy in Part II of the Constitution, is not directly enforceable by a court, how could the judiciary be separated on the basis of that provision?

At the outset, it is important to clarify that the Masdar Hossain case was not a case for the direct enforcement of Article 22. Under Article 8(2) of the Constitution, the principles set out in Part II are not directly enforceable by any court. Therefore, a person cannot seek judicial relief solely on the ground that Article 22 has been violated.

What, then, was the role of Article 22? The Court did not treat Article 22 as the direct basis of the case. Rather, it was considered as a constitutional objective and guiding principle for separating the judiciary from the executive. The Court then interpreted Article 22 together with other enforceable provisions of the Constitution to determine the constitutional position and independence of the judiciary.

In this context, Articles 109, 115, 116 and 116A were particularly important. Article 109 provides for the superintendence and control of the High Court Division over subordinate courts. Article 115 provides the constitutional framework for appointments to the judicial service. Article 116 deals with matters such as posting, promotion, leave and discipline of members of the judicial service. Article 116A guarantees the independence of members of the judicial service in the exercise of their judicial functions.

The question, therefore, was whether these constitutional provisions were being properly implemented in practice. It was in this context that the writ petition was brought under Article 102. In other words, Article 102 provided the constitutional route for approaching the Court, while Articles 109, 115, 116 and 116A constituted the principal constitutional framework concerning the independence and separation of the judiciary. Article 22 played an important role in explaining the purpose and constitutional meaning of these provisions.

Articles 27, 29 and 31 were also relevant to the case. Constitutional guarantees concerning equality before law, equality of opportunity in public employment and protection of law were connected with issues concerning the service conditions and status of judicial officers. Thus, the case was not merely an administrative dispute concerning the separation of the judiciary; it also involved questions of constitutional rights and equality.

Therefore, the central issue in the Masdar Hossain case was not simply to “enforce Article 22 directly.” Rather, the Court interpreted the existing enforceable provisions of the Constitution as a whole and found that the constitutional framework for separating the judiciary from the executive already existed within the Constitution. The Court could then issue directions for implementing those constitutional provisions through its writ jurisdiction under Article 102.

Put simply, Article 22 identified the constitutional objective; Articles 109, 115, 116 and 116A provided the constitutional framework for the judiciary; and Article 102 provided the judicial mechanism for enforcing that constitutional framework. This is the key to understanding the constitutional significance of the Masdar Hossain case.

However, the principal legal lesson from the Masdar Hossain case is that although a Fundamental Principle of State Policy in Part II of the Constitution is not directly enforceable by a court, it may nevertheless play an important role in interpreting other enforceable constitutional provisions.

In this case, Article 22 established the constitutional objective of separating the judiciary from the executive. Articles 109, 115, 116 and 116A provided the constitutional framework for achieving that objective, while Article 102 provided the mechanism for seeking judicial enforcement of the relevant constitutional provisions.

Therefore, although Article 22 itself was not the direct legal basis of the case, it served as an important constitutional guide when read together with the other enforceable provisions concerning the independence and separation of the judiciary.

BD Law Post/ Masum