President says gazette on judges' service rule not necessary even as SC wants it

The president has decided not to issue a gazette notification on the service rules of judges of lower courts, saying it is not necessary.

The president's decision was published in a notice on the law ministry's website on Sunday, with the Supreme Court summoning the two secretaries to the law, justice and parliament affairs ministry for not gazetting the rules in the backdrop.

The subject of the notice signed by Senior Assistant Secretary Moshtaq Ahmed was 'Enactment of Disciplinary Rules for the Judicial Officers and Judicial Officers Conduct Rules'.

It said the president has determined that it is not necessary to publish the Supreme Court-proposed draft to amend separate conduct rules and disciplinary rules for the judicial officers, and Bangladesh Judicial Service (Service Formation, Appointment and Termination, Suspension and Dismissal) Rules 2007 in Bangladesh Gazette.   

Copies of the notice have been sent to the registrars of the Appellate Division and High Court Division, attorney general and other relevant people.

Supreme Court Registrar General Syed Aminul Islam told bdnews24.com he received the notice in the evening.

"The Supreme Court has proposed a draft for a little amendment to the Bangladesh Judicial Service (Service Formation, Appointment and Termination, Suspension and Dismissal) Rules 2007 from the Masdar Hossain case," he said.  

"The law ministry said in the notice that the president has determined that it is not necessary to gazette it," he added.

On Dec 8, an appellate bench of eight judges led by Chief Justice SK Sinha verbally ordered the attorney general to produce the two secretaries of the law ministry on Dec 12 (Monday) for not publishing the gazette following a previous order.

Now the law ministry has published the president's decision a day before the appearance of its two secretaries - ASSM Zahirul Haque and Mohammad Shahidul Haque - before the Supreme Court.

The Appellate Division of the Supreme Court on Dec 2, 1999 delivered a historic verdict separating the judiciary from the executive in a case filed by a judge, Masdar Hossain.

It dissolved the judicial cadre of the Bangladesh Civil Service (BCS) on the grounds that it was incompatible with the Constitution and declared the judicial services independent.

The apex court also issued a set of directives upon the government for bringing about a separation of the judiciary from the executive.

Following the verdict, the judiciary was separated from the executive branch on Nov 1, 2007.

As part of the separation, the government submitted a draft of the rules relating to the services of judges of subordinate courts.

The Appellate Division, however, declared it contradictory to the Masdar Hossain case verdict on Aug 28 this year because the draft ran similar to the Government Servants (Discipline and Appeal) Rules 1985.

The Supreme Court then amended the draft and sent it back to the law ministry, asking it to finalise and submit it as a report on Nov 6.

With Attorney General Mahbubey Alam failing to submit any progress report on that day, the Appellate Division ordered the State to write down the steps taken to finalise the rules and submit them, fixing Nov 7 to issue the order.

The Supreme Court then extended the time for the government to issue the gazette several times until Dec 8.

On that day, when the attorney general sought more time again, the chief justice told him: "We are not issuing a written order, but are telling you verbally: the two secretaries must be brought before the court at 9am on Monday.”

Though the judiciary has been separated, Chief Justice Sinha has been speaking about the judiciary's inability to take steps independently in several matters like supervision of promotions, transfers and disciplinary activities of subordinate court judges. 

He has termed the matter 'dual rule'. On Saturday, he reiterated the issue at a programme, saying, "Sections 116 and 116 (A) are in conflict with the principles of the Constitution. I urge that these sections be removed from the holy book (Constitution) immediately.

"These have made it difficult for us to establish the rule of law," he added.

>> Section 116 says, "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."

>> Section 116 (A) of the Constitution reads, "Subject to provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions."

Law Minister Anisul Huq has disagreed with the chief justice's comments.

"This government has worked hard for the judiciary's independence and has shown no parsimony in this regard," he said at a programme on Sunday.

The minister claimed the executive branch had never interfered in the work of the judiciary.

"That culture is in the past now and broad changes have come in and that's why I think we, the executive branch or whatever branch you say, fully follow and honour and will continue to honour Section 116 (A)," he said.