President retains authority to control lower judiciary

Govt issues gazette on lower court judges’ conduct rules in line with Article 116

Keeping intact the President’s authority in controlling the lower judiciary, the law ministry yesterday issued the much-talked-about the gazette notification on the disciplinary rules of lower court judges. After 18-year of the Masder Hossain case verdict, popularly known as judiciary separation case, the government published the much-expected gazette notification in line with the article 116 of the constitution.

As per the gazette notification, the president and the law ministry are the appointed authorities for the lower court judges. Without obtaining approval from the president, the Supreme Court cannot conduct any investigation against any lower court judges even if any allegation brought against them would be primarily proved, according to the gazette.

Speaking to this correspondent, Law Secretary ASM Zahirul HH Haque Dulal said that the ministry had sent the gazette to the Bangladesh Government (BG) Press for its publication.

He also said that the disciplinary and conduct rules were prepared in consultation with the Supreme Court.

The article allows the president to control their postings, promotions and leaves in consultation with the Supreme Court.

“Article 116 makes for dual rule in the judiciary as it is not possible for the Supreme Court alone to do all the work—subordinate court judges’ promotion, transfer

and disciplinary action. But judges cannot be appointed in many districts due to the dual role,” he noted.

Following the gazette notification, legal experts apprehended that the law ministry would now indirectly control the lower court judges as like as it is now controlling the lower judiciary.

Article 116 of the Constitution, says, “The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”

It has been mentioned in the gazette notification that if the Supreme Court would spontaneously conduct an investigation against any lower judges and the primary allegation would be proved during the apex court investigation, it could still not run a formal investigation without getting the president’s approval.

The Supreme Court will make recommendations to the president and the law ministry, if the allegations have been proved primarily, according to the gazette notification.

Experts, following the gazette notification, said that it would not be possible for the apex court to run the investigations against the lower court judges, if the law ministry or the president would not give consent to do so. As a result, the law ministry would indirectly control the lower judiciary, they opined.

According to the disciplinary rules, if the allegation would be proved against any judges, punishment could be in the form of criticism, suspension of promotion (not for more than one year), suspension of yearly salary increment for three years and others.

The disciplinary rules also state that the government could give forced retirement and terminate lower court judges, if any allegation of corruption is proved against them or their involvement is found in any activity against the state. However, terminated officials would still be eligible for jobs with the government or any other institution.

On December 2, 1999, the Supreme Court in the Masdar Hossain case issued a seven-point directive, including formulating separate disciplinary rules, for the lower court judges.

Following the Masder Hossain case the Judiciary was officially separated from the Executive in November 2007. But, finalisation of the draft lingered during the tenure of former Chief Justice SK Sinha who made many angry remarks over the matter. The rules are meant to streamline the Judiciary after its separation from the Executive.

The law ministry and the Supreme Court on several occasions locked on debates over preparing the disciplinary rules for the lower court judges.

Former Chief Justice Surendra Kumar Sinha sent a draft asking the law ministry to issue the gazette notification. But, the government brought some changes in the draft of disciplinary rules, which were made by the then Chief Justice SK Sinha. Sinha wanted to see that the rules curb the powers of the President over the lower court judges.

On May 7, 2015, the law ministry had sent a draft of the rules, similar to the Government Servants (Discipline and Appeal) Rules 1985, to the SC. But former Chief Justice Sinha wanted it to be revised and the apex court sent it back to the law ministry.

On July 30 this year, the top court had declined to accept the draft of the disciplinary rules and code of conduct for lower court judges, which was earlier submitted by the law minister to the then chief justice, Surendra Kumar Sinha, and proposed a meeting with the government to settle the issue. The apex court had also expressed dissatisfaction on several occasions over the government’s failure to issue a gazette notification in this regard.

The Appellate Division extended the time at least 30 times in the past one year following the government’s pleas for time petition over the gazette notification.

Chief Justice Sinha resigned through a letter sent from abroad on November 10

On November 16, after a meeting at acting Chief Justice Md Abdul Wahhab Miah’s residence at the Judges’ Complex at Kakrail in the capital, Law Minister Anisul Huq told reporters that the difference of opinions between the government and the SC over the service rules and code of conduct for the lower court judges had been resolved.

On November 30, law minister Anisul Huq had said that his ministry had sent the draft of the gazette to the Prime Minister’s office. After getting the PM’s consent to the draft, the law ministry sent it to the President’s office.

The Appellate Division of the Supreme Court, on Sunday, extended time till December 13 for the government to issue the gazette notification. A five-member Appellate Division bench, led by acting Chief Justice Md Abdul Wahhab Miah, passed the order following a time petition filed by attorney general Mahbubey Alam. Finally, the government issued the gazette notification yesterday.

 

President retains authority to control lower judiciary

Govt issues gazette on lower court judges conduct rules in line with Article 116

Keeping intact the Presidents authority in controlling the lower judiciary, the law ministry yesterday issued the much-talked-about the gazette notification on the disciplinary rules of lower court judges. After 18-year of the Masder Hossain case verdict, popularly known as judiciary separation case, the government published the much-expected gazette notification in line with the article 116 of the constitution. As per the gazette notification, the president and the law ministry are the appointed authorities for the lower court judges. Without obtaining approval from the president, the Supreme Court cannot conduct any investigation against any lower court judges even if any allegation brought against them would be primarily proved, according to the gazette. Speaking to this correspondent, Law Secretary ASM Zahirul HH Haque Dulal said that the ministry had sent the gazette to the Bangladesh Government (BG) Press for its publication. He also said that the disciplinary and conduct rules were prepared in consultation with the Supreme Court. The article allows the president to control their postings, promotions and leaves in consultation with the Supreme Court. Article 116 makes for dual rule in the judiciary as it is not possible for the Supreme Court alone to do all the worksubordinate court judges promotion, transfer and disciplinary action. But judges cannot be appointed in many districts due to the dual role, he noted. Following the gazette notification, legal experts apprehended that the law ministry would now indirectly control the lower court judges as like as it is now controlling the lower judiciary. Article 116 of the Constitution, says, The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court. It has been mentioned in the gazette notification that if the Supreme Court would spontaneously conduct an investigation against any lower judges and the primary allegation would be proved during the apex court investigation, it could still not run a formal investigation without getting the presidents approval. The Supreme Court will make recommendations to the president and the law ministry, if the allegations have been proved primarily, according to the gazette notification. Experts, following the gazette notification, said that it would not be possible for the apex court to run the investigations against the lower court judges, if the law ministry or the president would not give consent to do so. As a result, the law ministry would indirectly control the lower judiciary, they opined. According to the disciplinary rules, if the allegation would be proved against any judges, punishment could be in the form of criticism, suspension of promotion (not for more than one year), suspension of yearly salary increment for three years and others. The disciplinary rules also state that the government could give forced retirement and terminate lower court judges, if any allegation of corruption is proved against them or their involvement is found in any activity against the state. However, terminated officials would still be eligible for jobs with the government or any other institution. On December 2, 1999, the Supreme Court in the Masdar Hossain case issued a seven-point directive, including formulating separate disciplinary rules, for the lower court judges. Following the Masder Hossain case the Judiciary was officially separated from the Executive in November 2007. But, finalisation of the draft lingered during the tenure of former Chief Justice SK Sinha who made many angry remarks over the matter. The rules are meant to streamline the Judiciary after its separation from the Executive. The law ministry and the Supreme Court on several occasions locked on debates over preparing the disciplinary rules for the lower court judges. Former Chief Justice Surendra Kumar Sinha sent a draft asking the law ministry to issue the gazette notification. But, the government brought some changes in the draft of disciplinary rules, which were made by the then Chief Justice SK Sinha. Sinha wanted to see that the rules curb the powers of the President over the lower court judges. On May 7, 2015, the law ministry had sent a draft of the rules, similar to the Government Servants (Discipline and Appeal) Rules 1985, to the SC. But former Chief Justice Sinha wanted it to be revised and the apex court sent it back to the law ministry. On July 30 this year, the top court had declined to accept the draft of the disciplinary rules and code of conduct for lower court judges, which was earlier submitted by the law minister to the then chief justice, Surendra Kumar Sinha, and proposed a meeting with the government to settle the issue. The apex court had also expressed dissatisfaction on several occasions over the governments failure to issue a gazette notification in this regard. The Appellate Division extended the time at least 30 times in the past one year following the governments pleas for time petition over the gazette notification. Chief Justice Sinha resigned through a letter sent from abroad on November 10 On November 16, after a meeting at acting Chief Justice Md Abdul Wahhab Miahs residence at the Judges Complex at Kakrail in the capital, Law Minister Anisul Huq told reporters that the difference of opinions between the government and the SC over the service rules and code of conduct for the lower court judges had been resolved. On November 30, law minister Anisul Huq had said that his ministry had sent the draft of the gazette to the Prime Ministers office. After getting the PMs consent to the draft, the law ministry sent it to the Presidents office. The Appellate Division of the Supreme Court, on Sunday, extended time till December 13 for the government to issue the gazette notification. A five-member Appellate Division bench, led by acting Chief Justice Md Abdul Wahhab Miah, passed the order following a time petition filed by attorney general Mahbubey Alam. Finally, the government issued the gazette notification yesterday.