POST TIME: 4 January, 2018 00:00 00 AM
Executive-judiciary dispute ‘settled’
SC accepts gazette notification on disciplinary rules for lower court judges

Executive-judiciary dispute ‘settled’

Settling a longstanding dispute between the executive and the judiciary, the Supreme Court (SC) yesterday accepted the disciplinary rules for lower court judges prepared by the government. With this, the disagreement over the publication of a gazette notification on the issue has come to a closure.

A five-member bench of the Appellate Division, headed by acting Chief Justice Md Abdul Wahhab Miah, accepted the rules during a hearing of the Masdar Hossain case, popularly known as the "judiciary separation case".

However, the apex court kept the case as mandamus, saying it would revive it in the future, if needed, in the greater interest of lower court judges.

During the hearing, Miah said the supremacy of the apex court had been upheld by the gazette notification.

Referring to media reports on the issue, Miah said: “It seems from media reports that we have given all power to the executive. But we, the five judges of the Appellate Division, are not fools who would give all power to the executive. Rather we kept all power for the SC.”

After a long drama, following an apex court directive, the law ministry had on December 11 issued a gazette notification on the rules for lower court judges, keeping the authority over their conduct. Later, the law ministry submitted an affidavit of the gazette before the Appellate Division of the SC.

Attorney general Mahbubey Alam took part in the hearing. Miah said the gazette notification stated in several places that the authorities would take action in consultation with the SC.

He also said that some media outlets were making unnecessary comments on the topic without understanding it. “Someone said that everything was gone, but that is not correct,” he added.

The attorney general read out Sections 2, 3, 4, 7, 11, 14, 15, 18, 22, 23, 25 and 29 of the gazette notification, all of which mentioned ‘SC consultation’.

Abdul Wahhab Miah said that the media made unnecessary comments even without a clear understanding of the matter. He also said it was reported that the SC had not been given supremacy in the gazette notification. But the supremacy of the SC had, in fact, been upheld in the gazette notification, he added.

“We have finalised the gazette notification after sitting together. We're senior judges who finalised the gazette notification,” he said.

Later, attorney general Mahbubey Alam told reporters that the gazette notification on the disciplinary rules for lower court judges became effective with their acceptance by the apex court.

He said that the President and the law ministry would consult the SC if they wanted to investigate lower court judges.

Barrister M Amir-ul Islam, counsel for the petitioner, told reporters that they had planned to file a writ petition at the High Court (HC) against some sections of the gazette notification. “But we can’t file the writ petition after the SC accepted the notification,” he said.

The President would take necessary decisions in consultation with the SC and the law ministry would implement them, said a senior official of the ministry.

He was interpreting the contents of the 24-page notification titled ‘Bangladesh Judicial Service (Discipline) Rules 2017’.

The President will appoint an investigating officer (IO), or form a three-member committee under the disciplinary rules, to conduct a probe into any allegation brought against a lower court judge. The lower courts have been made subordinate to the executive by three “cardinal” rules, Dr Kamal Hossain and five other leading jurists of the country said on Monday.

The protection of the independence of the judiciary had been undermined and the separation of powers had been violated by the rules, they said in a joint statement, without naming the rules. The other five jurists are Rafique-ul Huq, M Amir-Ul Islam, Mainul Hosein, Fida M Kamal and AF Hasan Ariff.

Their statement was issued on the occasion of Supreme Court Day on December 2.

Meanwhile, the acting Chief Justice said in another case that he himself felt unnerved by the process in which mobile courts punish people.

“It is unconstitutional if any person is sentenced without any specific reason,” Miah remarked while presiding over a five-member bench of the Appellate Division during the hearing of three appeals filed by the government against the HC verdict on the Mobile Court Act.

Following three separate writ petitions, the High Court on May 11 last year had declared unconstitutional the rules under which executive magistrates run mobile courts. The HC had also observed that empowering executive magistrates with judicial powers was “a frontal attack on the independence of the judiciary and a violation of the theory of separation of powers”.

Later, the government filed separate appeals with the SC, challenging the HC verdict. On November 2 last year, the SC extended the stay order on the HC verdict till December 6.

The Appellate Division yesterday adjourned the hearing on the appeals till next Tuesday.