Separation of powers and its application in Bangladesh
🔹 1. Meaning of Separation of Powers
The Doctrine of Separation of Powers is a principle of constitutional governance that divides state power into three branches:
Legislature → makes the law
Executive → implements the law
Judiciary → interprets the law
The purpose is to avoid concentration of power and ensure checks and balances.
🔹 2. Constitutional Framework in Bangladesh
The Constitution of Bangladesh, 1972 does not follow a rigid separation of powers like the U.S. Instead, it follows a parliamentary system, where some overlap exists:
Articles 55–58 → Executive power is exercised by the Prime Minister and Cabinet, who are members of Parliament.
Articles 65–82 → Legislature (Jatiya Sangsad) makes laws.
Articles 94–116 → Judiciary ensures independence in interpreting laws.
Bangladesh follows a modified separation of powers with significant stress on judicial independence.
🔹 3. Key Case Laws in Bangladesh
Here are more than five landmark cases where separation of powers and judicial independence were applied:
1. Anwar Hossain Chowdhury v. Bangladesh (8th Amendment Case, 1989)
Facts: The 8th Amendment created permanent benches of the High Court in Dhaka and other places. Petitioners argued this curtailed the independence of the judiciary.
Ruling: The Supreme Court struck down the amendment, declaring that separation of powers and independence of the judiciary are part of the basic structure of the Constitution.
Principle: Judicial independence and separation of powers cannot be destroyed, even by constitutional amendment.
2. Secretary, Ministry of Finance v. Masdar Hossain (Judicial Independence Case, 1999)
Facts: Lower court judges were treated as part of the executive, raising doubts about judicial independence.
Ruling: The Supreme Court directed the government to establish a separate Judicial Service Commission and separate pay structure for judges.
Principle: Judiciary must be administratively and financially independent from the executive.
3. Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh (5th Amendment Case, 2010)
Facts: The 5th Amendment had validated martial law proclamations (1975–1979).
Ruling: The Supreme Court declared martial law unconstitutional and held that military rule destroys separation of powers.
Principle: Military takeover is incompatible with separation of powers and democracy.
4. Kudrat-E-Elahi Panir v. Bangladesh (Local Government Case, 1992)
Facts: Concerned autonomy of local government institutions under executive control.
Ruling: The Court stressed that local government is part of democratic structure and must be free from excessive executive control.
Principle: The executive cannot absorb all powers; decentralization ensures separation of functions.
5. State v. Special Tribunal, Ex Parte Bangladesh (Special Powers Case, 1980)
Facts: Questioned legality of special tribunals set up by the executive.
Ruling: The Court held that judicial power cannot be vested in executive-created tribunals that undermine judicial authority.
Principle: Judicial power belongs only to the independent judiciary, not executive-controlled bodies.
6. Bangladesh v. Abdul Quader Mollah (2013, War Crimes Tribunal Case)
Facts: Related to sentencing in International Crimes Tribunal for 1971 war crimes.
Ruling: While upholding punishment, the Court emphasized that even special tribunals must respect judicial independence and constitutional safeguards.
Principle: Emergency tribunals must not bypass constitutional guarantees of fair trial—part of separation of powers.
7. Abdul Mannan Khan v. Government of Bangladesh (16th Amendment Case, 2017)
Facts: The 16th Amendment gave Parliament power to remove judges.
Ruling: The Supreme Court struck it down, holding it violated separation of powers and judicial independence.
Principle: Judges cannot be dependent on the legislature for tenure, as it threatens impartiality of justice.
🔹 4. Present Challenges in Bangladesh
Executive dominance: Strong influence of the ruling party on administration.
Judicial appointments: Executive plays a role in appointing judges, raising questions of independence.
Weak local government: Limited power-sharing with local institutions.
Emergency laws: Broad executive powers during emergencies sometimes threaten constitutional balance.
✅ Conclusion
The application of separation of powers in Bangladesh has evolved through judicial activism. Landmark cases like Anwar Hossain (8th Amendment), Masdar Hossain, and 16th Amendment Case established that judicial independence and separation of powers are part of the basic structure doctrine. Though Bangladesh’s parliamentary system allows some overlap, courts have consistently insisted that executive and legislature cannot control the judiciary.
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