Dhaka: Law minister Anisul Huq yesterday said he could not include anything in the discipline and conduct rules of lower court judges as that would go against the Constitution of the country. Huq made the comment a day after Chief Justice Surendra Kumar Sinha criticised the law ministry for “a complete U-turn” on the discipline and code of conduct of lower court judges.Sinha, who led a six-member bench of the Appellate Division, refused on Sunday to accept the draft code submitted by the law ministry earlier and proposed a meeting with the government to settle the issue.
Speaking at a programme in Dhaka yesterday, the law minister also expressed his inability to do something that was against Article 116 of the Constitution.
Article 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.” “But it’s the Supreme Court that wanted to scrap the President's power in the matter. How can I do this?” the law minister argued.
“They (the Appellate Division bench) are talking about the discipline and conduct rules of lower court judges. But there were no rules. I made them after taking responsibility of the law ministry,” he said. Referring to the Chief Justice’s statement on removing the High Court, the law minister said that Article 109 empowered the High Court Division to control the lower court.
It (Article 109) did not empower the Appellate Division to do so, he pointed out.
Article 109 says that the High Court Division will have control over all courts and tribunals subordinate to it.
“I have submitted the draft rules to the Chief Justice to make the matter clear. If he gives his consent, I will take the initiative to issue the gazette notification,” the law minister said.
Instead of giving his consent, the Chief Justice told the government to remove the High Court, he added.
“Bangabandhu Mujibur Rahman had set up the High Court. How can I remove it?” the law minister commented.
He wanted to know from the Chief Justice whether or not his statement to remove the High Court was “irrelevant”.
However, the law minister said that he would meet the Chief Justice to settle the issue to maintain a congenial atmosphere between the judiciary and the executive. The minister said they might meet on Thursday.
The verdict by the Appellate Division on December 2, 1999 in the historic State vs Masdar Hossain case mandated the drafting of a 12-point set of guidelines on the separation of the judiciary from the executive. The judiciary was officially separated in November 2007, but the disciplinary rules for lower court judges are yet to be finalised.
For several years, the SC has issued several rulings, asking the government to issue a gazette notification on the finalised rules. The government later drafted the rules and sent those to the apex court for the latter’s opinion on May 7, 2015. On August 28 last year, the Appellate Division declared that the government’s draft rules contradicted the verdict in the Masdar Hossain case because the draft was similar to the Government Servants (Discipline and Appeal) Rules, 1985.
After revising the draft rules, the SC had sent those to the law ministry and asked the government to issue a gazette notification by November 6. However, the government kept seeking more time from the court instead of issuing the gazette notification.
