Two eminent lawyers on Thursday criticised the ‘lower court judges’ disciplinary rules’, accepted by the Supreme Court a day earlier, as it would hinder the independence of the judiciary and its separation from the executive while another eminent lawyer who had been critical of the rules refrained from making comments.
A former district judge, Masdar Hossain, however, said that the duel authority in the rules would ‘doubly protect the interests of the lower court judges’.
On January 1, eminent lawyers Dr Kamal Hossain, Rafique-Ul Huq, M Amirul Islam, Mainul Hosein, AF Hassan Ariff and Fida M Kamal in a statement recalled the landmark decision delivered by the apex court in the Masder Hossain case and said that they had found three rules (disciplinary rules) relating of the subordinate court ‘have been framed in violation of the constitution of 1972’.
‘It is a matter of grave concern,’ said the statement, ‘it is the constitutional obligation for the apex court to uphold independence of the judiciary enshrined in the constitution’.
‘I think the lower court judges’ disciplinary rules accepted by the Supreme Court would hinder the independence of the judiciary and its separation from the executive,’ said Supreme Court Bar Association general secretary Mahbub Uddin Khokon.
‘The rules show that there would be control of law ministry, which represents the government, over the lower court judges. It might create an unequal competition between Supreme Court and the law ministry,’ he said.
The SCBA general secretary stressed the need for establishing a secretariat for the judiciary to carry out official activities and bringing amendment to the lower court judges’ disciplinary rules for full independence of the judiciary.
‘In full separation of the judiciary, there should not be any say of the ministry through “proper authority” or some other similar authority in matters relating to posting, promotion or discipline of judicial officials. There should be exclusive domain of the Supreme Court to be exercised through the office of the Registrar General of the Supreme Court,’ senior Supreme Court lawyer Shahdeen Malik told New Age.
Asked for comments on Thursday on the rule, senior SC lawyer M Amirul Islam said, ‘I am not making any comment right now.’
On December 11, 2017, the government published the 24-page lower court judges’ disciplinary rules in an official gazette notification keeping dual administration in the lower judiciary.
Rule 2(g) 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) 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.
The government required to publish the rules for the subordinate court judges following 12-point Appellate Division directives laid down in its judgement in 1999 Masdar Hossain case.
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