Staff Reporter :
The Supreme Court (SC) on Sunday extended time till December 10 to the government to publish a gazette notification on the disciplinary rules for the lower court judges.
A five-member bench of the Appellate Division headed by the Acting Chief Justice Md Abdul Wahhab Miah passed the order after considering the time prayer filed by the Attorney General. The order has been given after Law Minister Anisul Huq’s recent statement that the gazette would be published very soon as the draft of the gazette had already been sent to President’s office for consent.
On November 5, 2017, the Appellate Division extended the time till December 3, 2017, the last hearing day of the Masdar Hossain case, known as the judiciary separation case, after the Chief Justice went on leave.
Appellate Division gave 12 directives in the verdict of Masdar Hossain case. To formulate the rules determining the guidelines of lower court judges was among those directives.
The Law Ministry sent a draft rules on May 7 last year to the SC, which amended that draft, but the ministry didn’t publish a gazette yet.
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.
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.
The Supreme Court recently had gone through the draft and sent it back to the Ministry with its opinions.
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.
