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Published : 29 Jun 2025, 12:34 PM
The Appellate Division has halted an order issued in 2018 approving and accepting the code of conduct for judges in the lower courts. It has also allowed an appeal to be filed against that order.
A six-strong bench led by Chief Justice Syed Refaat Ahmed issued the order on Sunday.
The other five justices of the bench are Md Ashfaqul Islam, Zubair Rahman Chowdhury, Md Rezaul Haque, SM Emdadul Haque and Farah Mahbub.
As a result of the decision, the ongoing writ at the High Court over Article 116 of the Constitution can now be settled without any hindrance, said petitioner Mohammad Shishir Manir.
Shishir moved the review petition while Attorney General Md Asaduzzaman represented the state at the hearing.
Shishir later told reporters that the government sent a proposal to the Supreme Court to formulate a code of conduct for judges of the lower courts. On Aug 28, 2016, this disciplinary code was sent to the government with amendments.
The code should be amended to ensure independence of the judiciary, it said. But the then government did not make any changes to the code and published it in a gazette on Oct 13, 2017. The Supreme Court adopted the disciplinary code through an order on Jan 3, 2018.
“In the meantime, our previous chief justice was compelled to go abroad. He sent his resignation from abroad. Later, the five-member Appellate Division led by the retired chief justice adopted the disciplinary code on Jan 3, 2018. We filed a review petition against that order. In the petition, we said that the 5-member Appellate Division couldn’t give this order without reviewing the order given by the previous 9-member Appellate Division. This is tantamount to contempt of the past orders issued by the Supreme Court. The order was issued today after hearing of the review petition.”
“The order has suspended the previous one issued on Jan 3, 2018, by acting Chief Justice Md Wahab Miah. In addition, the code of conduct of the lower court will remain in effect ‘in the meantime’. Similarly, there will be no further obstacles to our hearing in the High Court regarding Article 116 of the Constitution. Through this order, the previous code of conduct has been suspended, and we have been granted leave [to challenge it].”
Earlier, on Jun 26, the court fixed Sunday for its decision on the review petition filed against the order of the Appellate Division of five judges led by acting chief justice Md Abdul Wahab Miah, adopting the gazette of the disciplinary code of the lower court judges.
After the fall of the Awami League government, the finance secretary filed an application with the Appellate Division seeking a review of the code of conduct. Masdar Hossain and others concerned were held respondents in the case.
On Dec 2, 1999, the Appellate Division issued a 12-point ruling in the Masdar Hossain case. In light of the ruling, the judiciary began to function on Nov 1, 2007, as separate from the executive division.
In the context of that ruling, there were directives to formulate rules and regulations regarding job discipline for the lower court judges.
The 12-point directives included-
>> According to Article 152 (1) of the Constitution, work of all departments of the state will fall within the Service of the Republic. However, the work and infrastructure of the judiciary and the civil service of the republic differ. The judiciary cannot be merged with other civil services.
>> Judicial magistrates should be separated from the executive division and executive magistrates cannot perform judicial tasks.
>> According to the Civil Service Order 1980, all magistrates are recruited together through the Bangladesh Civil Service examination under the Public Service Commission. Recruiting them together is unconstitutional.
>> The Judicial Service Commission Rules and the Commission must be formed as soon as possible after receiving the verdict
>> As per Article 113 of the Constitution, the president will formulate the service rules (recruitment, posting, transfer, promotion and leave, etc.) for all members of the judiciary.
>> The president will formulate the Judicial Service Pay Commission Rules.
>> According to Article 116 of the Constitution, the Supreme Court will have the power to control judicial magistrates.
>> The judiciary will not remain under the National Parliament or the executive division, and all judges, including judicial magistrates, will work independently.
>> The executive division will have no control on the formulation of the annual budget of the judiciary (lower courts). This budget will be formulated and allocated by the Supreme Court.
>> Judicial service members will be under the jurisdiction of the administrative court.
>> According to the verdict, no constitutional amendment is required for the separation of the judiciary. However, if an amendment to the Constitution is necessary to make the separation more meaningful, it can be done.
>> Judicial Pay Commission: Until the Judicial Pay Commission send recommendations to the president for an increase in the salaries and allowances of judiciary members, they will enjoy all privileges according to the current structure.
The Judicial Service Association filed a writ petition in the High Court in 1995, challenging the inclusion of the judicial service in the civil service and seeking directives to separate the judiciary.
The case has been named after Judge Masdar Hossain, the then leader of the association, and plaintiff in the petition.
