‘We better focus on restoring Article 116 to its original form'

Justice M A Matin is a retired Judge of the Appellate Division of the Supreme Court of Bangladesh. He was appointed as Additional Judge in the High Court Division in 1996 and as one of the Judges in the Appellate Division in 2007. Justice Matin retired on 25 December 2010 from the Supreme Court of Bangladesh. From 2011 till 2013, he had been the Chairman at the Administrative Tribunal. Justice Matin was the Author Judge in the famous 'Ten Judges Case' decided in February 2010. Emraan Azad from Law Desk talks to him about the Bangladesh Judicial Service (Discipline) Rules 2017 which has been recently accepted by the Appellate Division.

Law Desk (LD): How would you evaluate the acceptance of the Bangladesh Judicial Service (Discipline) Rules 2017 for the lower court judges by the Supreme Court?

Justice M A Matin (JMAM): First of all, let me clear one thing. To me, this is not an acceptance. There was no hearing on the said Rules. Nobody raised the contention and question that the Rules are unconstitutional. The 3rd of January was a date of filing the Rules, the Government filed it and the Appellate Division took note of it. It is kind of clerical acceptance. By accepting it, the Rules are kept on record. In other words, what the Appellate Division has basically done on the 3rd of January is performing its clerical job only.

LD: Do you think that the acceptance of the Rules by the Supreme Court has any impact on independence of the judiciary'?

JMAM: The Government always has an attitude to consider the Judges as good as any other employees of the service of the Republic. In the Constitution, there is a separate chapter for the employees of the service of the Republic. They are Government's employees. But the Judges who work in the judicial service are not Government's employees. The Judges cannot be equated with other employees of the service of the Republic. In Masder Hossain Case, it was expressly observed that, “it is the Supreme Court, not the political executive, which is the best judge of judicial matters and judicial officers.” That is why the provision of Article 133 is not applicable for the Judges. We all know that under Article 133 the President is competent to make Rules for the appointment and the conditions of service of persons who are in the service of the Republic. It is sad to see that the Executive organ of the State has made Disciplinary Rules for the lower court Judges under Article 133. Apparently it is illegal. However, my concern is that unless the Rules are not challenged by somebody, there is no case in controversy. Unless it is challenged, the Court has no occasion to give a decision on the legality of the Rules. Until the Court decides on the legality of the Rules, any comments will be uncalled for, unwanted and premature. However, if anyone thinks that the Disciplinary Rules are inconsistent with the Constitution, he or she has a right to go to the court. Formal acceptance of the Disciplinary Rules by the Appellate Division does not mean that legality of the Rules cannot be challenged. At the same time, we cannot forget that 'law is what the judges say it is'. The Court is the final arbitrator on any legal issue.

LD: Will the successor Judges in the Supreme Court be able to decide against this formal acceptance?

JMAM: Yes, why not. Let me give you an example. In the United States, back in 1857 there was a case titled Dred Scott v John F.A. Stanford where an issue was raised as to whether an African slave should be treated as a 'person' and can file a suit in the Court claiming his/her rights. The US Supreme Court decided that slaves could not be persons and could not sue in the Court because they could not be citizens of the United States. Subsequently in 1896, the Supreme Court ruled in Plessy v Ferguson that “racially segregated public facilities were legal, so long as the facilities for blacks and whites were equal.” In this case, the Court basically established the 'separate but equal' doctrine for the blacks and the whites. Almost fifty five years later, the US Supreme Court in Brown v Board of Education of Topeka (1954) decided that on the question of enjoying civic rights, the doctrine of 'separate but equal' has no place, as the very idea of 'separate but equal', or say segregated facilities, are 'inherently unequal'. These three case examples show that once decided issue can be set aside by the successor Judges of the same Court when there exist new circumstances and needs in the society. At the same, we should also remember that until the present decision is set aside by any new decision, the former one is binding for all. It is clear in Article 111 of our Constitution which says that law declared by the Appellate Division is binding on the High Court Division and law declared by either of the Divisions of the Supreme Court is binding on the courts subordinate to it.

LD: Different provisions of the Disciplinary Rules 2017 have given priority to the opinion of Supreme Court regarding various issues as inquiry, investigation and punishment of the lower court Judges. Do you think that such an approach would practically ensure independence of the judiciary?

JMAM: From my experience, I believe this priority issue might not work. Even if the opinion of the Supreme Court has been given priority, what Supreme Court will do if the Executive organ does not take action according to the opinion of the Supreme Court? There are chances that deadlock would be created on many issues, when there would be conflict of opinions between the Supreme Court and the Executive. I think we better focus on restoring Article 116 to its original form. It is the desire of the highest court. In 5th Amendment Case and Ten Judges Case, we said that Article 116 should be restored to its original form. Because the issue of disciplining lower court Judges is intriguingly linked to the issue of independence of the judiciary. In 1972's Constitution, the control and discipline of lower court Judges were given to the Supreme Court to make sure that judiciary can independently function without any interference from other organs of the State. And we cannot deny that this independence of the judiciary is one of the basic structures of our Constitution.

LD: Do you have any last comment on the making of the Rules?

JMAM: I believe that the Rules should have been prepared after having effective consultation with the Supreme Court. From news reports in the media, apparently we have seen that some dialogues took place between the Law Minister and the Chief Justice who is now in charge. As I understand, the consultation should not only be taken place with the Chief Justice, but also with other Judges of the Supreme Court. We must put emphasis on the phrase 'in consultation with the Supreme Court'. In Ten Judges Case, we said that there should be records of proceedings as to what consultation is made with the Supreme Court. Consultation must be an effective consultation, not any verbal one. Otherwise, in the words of Masder Hossain Case, 'in consultation with the Supreme Court' that has been prescribed in Article 116 would be only 'mocking birds'.

LD: Many thanks for your time.

JMAM: You are welcome.