Final say stays with president

The government has finally issued a gazette notification on the discipline of lower court judges, keeping the president's authority over their conduct.

The president will make necessary decisions in consultation with the Supreme Court, and the law ministry will implement those, a high official of the ministry said interpreting the contents of the 24-page notification titled “Bangladesh Judicial Service (Discipline) Rules 2017”.

The official, requesting anonymity, told The Daily Star last night that the president is the appointing authority of all the judges including the chief justice.

The president will appoint an investigation officer (IO) or form a three-member committee to conduct probe into any allegation brought against a lower court judge under the disciplinary rules, the official said.

The IO or the probe body will be appointed from the judicial service and a district judge will head the committee.

The IO or the probe committee members will not be from the rank below that of the judicial officer against whom allegation has been brought.

The president will provide the inquiry report and statements of witnesses and the accused official to the committee chief and members and the complainant.

The IO will start probing in 10 days and finish the investigation in four months from the date of receiving the order.

If the IO cannot complete the probe in four months, he or she will inform it to the president through the SC in black and white mentioning the reasons.

Departmental case can be lodged against a lower court judge for misconduct, including corruption and involvement in acts subversive towards the state.

In the rules, corruption or involvement in graft means wealth or lifestyle of the official or his or her family members inconsistent with known income, and failure to produce a credible explanation for this.

The president will impose sentences including dismissal, suspension, forced leave, rebuke and suspension of promotion and annual increment of salary against the accused judicial officer if the allegation is proved.

If an allegation is brought against any lower court judge of committing criminal offence and any court concerned takes cognizance of the allegation for trial, the court will inform it to the president through the SC.

The president will issue necessary orders about suspending the accused judge on advice from the SC, the rules said, adding that if the judge is suspended, the suspension will continue until the court takes the final decision.

The ministry official said following the issuance of the gazette notification on the disciplinary rules, the Government Servants (Discipline and Appeal) Rules, 1985, will not be applicable for the judicial officials.

There was no provision of consulting the SC in the rules of 1985, he said.

The government has so far taken time from the SC on 28 occasions since May 2015 for issuing the gazette notification.

During the hearing of Masdar Hossain case, also known as the judiciary separation case, the apex court on Sunday asked the government to submit the gazette notification to it on Wednesday (tomorrow).

Earlier, the then chief justice Surendra Kumar Sinha wanted to see the rules curb the power of the president regarding the control of lower court judges.  

He also expressed annoyance and dissatisfaction several times at the government's failure to issue the gazette notification while he was presiding over a bench of the apex court.

Yesterday, Law Secretary ASSM Zahirul Haque Dulal told The Daily Star that the ministry has issued gazette notification on the disciplinary rules in line with article 116 of the constitution.

Article 116 of the constitution allows the president to control the posting, promotion and leave of the lower court judges in consultation with the SC.

“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,” says the article, in its current form.

After finalising the rules, the law ministry on November 30 sent those to the president through the prime minister for approval.

As President Abdul Hamid recently approved the rules, the law ministry yesterday issued the gazette notification to this effect.

Earlier, the SC had gone through the draft of the rules and sent it back to the ministry with its opinions.

On November 16 this year, Law Minister Anisul Huq met five judges of the Appellate Division of the SC and discussed the rules and then told The Daily Star that the problem regarding issuance of a gazette notification determining the discipline of lower court judges had been solved.

On November 5, Attorney General Mahbubey Alam told reporters that Justice Sinha wanted to see that the rules curb the president's authority on the discipline of lower court judges. The government, therefore, was trying to resolve the issue through discussions with the SC and the law ministry, he added.

Article 116 of the original charter of 1972 had empowered the SC to decide on the posting, promotion and leave of lower court judges. The top court had also control over the magistrates' exercise of judicial powers and could discipline the judicial service staffers when necessary.

Over the years, this article has been amended several times, curtailing the apex court's powers.

Currently, the powers to control and discipline subordinate courts are vested in the president, who exercises these powers in consultation with the SC.

On December 11 last year, the law ministry issued a notification, which said the president decided not to issue a separate gazette notification on the disciplinary rules for the lower court judges.

The following day, Justice Sinha said the president has been misinformed about issuance of gazette notification on the rules determining discipline of lower court judges.

Officials of the ministry would not have done this if they had the minimum knowledge, he said.

The lower judiciary was separated from the executive branch on November 1, 2007, following the SC directives in the Masdar Hossain case.