The government on Monday finally published the 24-page lower court judges’ disciplinary rules in official gazette notification keeping dual administration in the lower judiciary after taking time on 27 occasions in the past two years.
Rule 2(g) of the rules defined ‘higher authority’ as appropriate authority, Bangladesh Supreme Court and local controlling authority in administrative matters for a member of the service.
Rule 2(h) of the rules defined ‘appropriate authority’ as the president or the ministry or division dealing with the administration of the service under the Rules of Business framed by the president in accordance with Article 55(6) of the constitution, meaning the law ministry.
Experts on law and judiciary said that in the name of the ‘appropriate authority’ the law ministry retained its administrative authority over the lower judiciary in the new rules.
They also said that Rule 4 of the rules would limit the power of the Supreme Court to investigate allegations of misconduct of lower court judges as the Supreme Court would need to inform the appropriate authority or the law ministry suggesting it to take appropriate steps. The authority would ask for written statement from the judge concerned in 15 days. If the appropriate authority thinks that the allegation need to be investigated, he would refer the matter along with the judge’s written statement, if any, to the Supreme Court for its advice. The appropriate
authority would initiate the investigation after the Supreme Court advice to do so.
Earlier on August 28, 2015, the Appellate Division incorporated a provision in the draft rules which stipulated departmental action against law ministry officials for their failure to carry out Supreme Court’s directives to draw disciplinary proceedings against errant lower court judges within the timeframe.
The provision, however, was not found in the published rules.
Another provision added by the highest court for treating violation of its lawful orders and directives by lower court judges and law ministry officials as disobedience and misconduct. This was also not incorporated in the published rules.
The gazette was published 30 days after former chief justice SK Sinha’s resignation from abroad on November 10.
Earlier on the day, addressing a programme at Bangabandhu International Conference Centre in Dhaka, law minister Anisul Huq said that the set of rules was being published taking into consideration all the suggestions of the Supreme Court.
‘There’s been enough drama with the disciplinary rules. But, there’s no conflict between the judiciary and the executive. The process was delayed as a person tried to politicise it,’ the minister said.
On December 10, a five-judge Appellate Division bench headed by acting chief justice Md Abdul Wahhab Miah gave the government a fresh deadline until December 13 for the publication of the disciplinary rules as the attorney general sought time.
The government required to publish the rules for the subordinate court judges following 12-point Appellate Division directives laid down in its judgement 1999 in a case widely known as the separation of judiciary case.
In May 2015, the government had drafted the Judicial Service (Discipline) Rules to comply with the directives issued by the Appellate Division in 1999.
On July 27, law minister Anisul submitted to the then chief justice SK Sinha the fresh draft of disciplinary rules for the lower court judges instead of publishing in the official gazette, law ministry’s draft of May 2015, modified by the Appellate Division on August 28, 2015.
During July 30, 2017 full court hearing on the matter, Justice SK Sinha told attorney general Mahbubey Alam that the fresh draft rules was a ‘U turn’ on agreed issues relating to the lower court judges’ disciplinary rules.
He said that the fresh draft submitted by the law minister did not reflect what they had agreed upon at their discussions.
Justice Sinha took serious exception to the fresh draft calling the law ministry as the local controlling authority for the judiciary and the other anomalous provisions.
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