Lower Court Judges: SC disappointed over draft rules
12:00 AM, July 31, 2017 / LAST MODIFIED: 02:55 AM, July 31, 2017

Lower Court Judges: SC deplores draft rules

Says it won't accept rules in full as 'control still in govt hands'

The Supreme Court yesterday refused to accept in full the draft rules determining the discipline of lower court judges, and said the rules were a U-turn on the top court's directives.

“And it cannot go on like this,” the SC said in a stern admonishment to the law ministry, which submitted the draft last week for the SC's approval.

The court expressed its dissatisfaction with the ministry as it made the rules by making a “U-turn” on the directives given in the verdict in Masdar Hossain case, known as separation of judiciary case.

The draft states that any judicial officer facing allegations of misconduct will be attached to the law ministry. This way, the draft rules protect the ministry officials, Chief Justice Surendra Kumar Sinha, who was heading a six-member bench of the apex court, said during the hearing on the Masdar Hossain case.

He demanded to know from the attorney general the necessity of the High Court if all the authority is given to the law ministry.

Under the rules, even the chief justice has no power to take action against judicial officers.

All the lower court judges and most law ministry officials are judicial officers.

The High Court has been the authority to exercise control over the lower court judges in line with a tradition since 1861, but the rules prepared by the law ministry make district judges the “sole authority” to control assistant judges, the CJ said.

“In that case, you can as well dissolve the High Court,” he told Attorney General Mahbubey Alam, who stood for submitting a petition to the SC seeking time for issuing a gazette notification on the rules.

The apex court decided to hold a meeting this week with judges, the law minister, the attorney general, experts and the government officials concerned to finalise the rules.

The court also fixed August 6 for passing further order on this issue.

During the proceedings, the chief justice sought to know from the attorney general the meaning of “competent authority,” as the draft does not explain the term.

The AG did not respond.

The CJ then said that from the reading, it seemed that by “competent authority” the draft referred to the president. And by making the president the “competent authority”, the draft in essence makes the law ministry the “competent authority.”

The chief of any institution is the “competent authority” and in case of the judiciary, it is the Supreme Court, he asserted.  

The SC verdict in Masdar Hossain case said the gazette on the rules would be effective from the date fixed by the apex court. But now the draft says the rules will come into force since the day of the gazette notification, Justice Sinha said. 

Sixteen years into the SC verdict in the separation of judiciary case, the government has yet to formulate the rules, and if things go on like this the gazette notification will not come in 1,600 years, he said.

Earlier, the law minister had fully agreed with the SC about formulating the rules, but the rules the ministry submitted is a complete departure from his previous position, the CJ added.

Terming the attorney general a “bridge” between the Supreme Court and the government, the chief justice said the attorney general would have to communicate with the government for holding a meeting to formulate a complete set of rules.

Law Minister Anisul Huq met the CJ at his office on Thursday and submitted the draft.

The minister then told reporters that the rules would be sent to the president for approval if the CJ gave consent to those after scrutiny.

Contacted yesterday, Mahbubey Alam said he would inform the law ministry about the SC's decision to hold a meeting with judges, the law minister and the government officials concerned.

The meeting might take place on Wednesday, he added.

Meanwhile, the law minister told reporters in Jessore yesterday that the rules would be finalised upholding article 116 of the constitution.

“I am in discussion about this issue. When I submitted the draft rules, I had said that more discussions will take place, if necessary. There is nothing to say on this issue in such a way in the courtroom,” he said.

At a function there earlier in the day, the minister said there was no conflict between the executive branch and the judiciary.

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