Gulam Rabbani :
The government on Thursday sent the disciplinary rules for the lower court judges to the President for his consent after it had been finalised, said Law Minister Advocate Anisul Huq.
The Minister also said to The New Nation, “The gazette notification will be published after the President’s consent. It may take 3rd or 4th December.”
Meanwhile, the Appellate Division of the Supreme Corut (SC) had extended time till December 3 in 2017 to the government to publish a gazette notification on the last hearing day of the Masdar Hossain case, known as the judiciary separation case.
But the Minister expressed doubts to complete the process within the date scheduled for the next hearing of the Masdar Hossain case.
Sources said, the Law Ministry has finalised the disciplinary rules for lower court judges in line with Article 116 of the Constitution, which allows the president to control their postings, promotions and leaves in consultation with the Supreme Court.
Article 116, in its current form, 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.”
The Supreme Court recently had gone through the draft and sent it back to the Ministry with its opinions.
On November 16, Law Minister Anisul Huq met five judges of the Appellate Division of the SC and discussed the rules and then told the journalists that the problem regarding issuance of a gazette notification determining the discipline of lower court judges had been resolved.
The gazette notification might be issued by December 3, then he said.
On November 5, Attorney General Mahbubey Alam told reporters that [the then] Chief Justice Surendra Kumar Sinha wanted to see the rules curbing the power of the President. The government, therefore, was trying to resolve the issue through discussions with the SC and the Law Ministry, he added.
While presiding over the Appellate Division bench, Justice Sinha had expressed annoyance and dissatisfaction several times at the government’s failure to issue a gazette notification on the rules.
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 staffs 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.
However, according to article 48(3) of the Constitution, the president acts on the advice of the Prime Minister. This gives the government ample scope to exercise power over the judiciary.
In a message on October 31 last year, Justice Sinha had said such a “dual rule” was hampering the judicial work and was also increasing justice seekers’ sufferings.
“The Supreme Court alone cannot take steps regarding lower court judges’ promotion and transfer or any disciplinary action against them in view of the Article 116 of the Constitution. Judges cannot be appointed to fill many vacant posts in the district courts on time due to the dual rule,” Justice Sinha said in the message issued on the occasion of the ninth anniversary of the separation of the Judiciary from the executive.
