Judiciary independence only one step away

Judiciary independence
only one step away
Four fresh sets of rules promulgated;
change in CrPC remains
Shahiduzzaman ,New Age, Dhaka.
The president, Iajuddin Ahmed, at last taking the penultimate step towards making the judiciary independent of the executive, on Tuesday promulgated four fresh sets of rules on judicial service, repealing the sets of rules promulgated by the BNP-led alliance government.
The fresh sets of rules were framed after being corrected by the Appellate Division of the Supreme Court on January 26, 2003 to keep them in line with the 12-point directive of the court, issued on December 2, 1999.
According to sources in the law ministry, the copies of the rules will be placed before the Appellate Division this morning when the court resumes the proceedings of the contempt-of-court cases against 13 bureaucrats, including four top-ranking ones, for procrastination in the implementation of the directives and for distorting the court’s orders.
The government will also inform the court that the process of implementation of the directives has been almost completed with the framing of the fresh rules and the only thing left — amendment to the Code of Criminal Procedures — will be done by promulgation of an ordinance by the president soon, said sources.
The seven-member full court of the Appellate Division ordered the government on January 10 to promulgate the four sets of rules as revised and approved by the court on January 26, 2003, and inform the court of compliance to the order through an affidavit within a week.
The court also observed that the four sets of rules, promulgated by the last government, were not made in accordance with the 12-point directive on the independence of the judiciary and thus have been ‘scrapped’.
‘Accordingly we have prepared the fresh rules, as revised and approved by the court, for promulgation by the president,’ law adviser Mainul Husein told reporters on Tuesday.
‘It is not a policy matter, but merely a regular administrative function of the government in order to carry out the orders of the highest court of the land,’ he said.
Once the four sets of rules — the Bangladesh Judicial Service Commission Rules, the Bangladesh Judicial Service (Pay Commission) Rules, the Bangladesh Judicial Service (Constitution, Recruitment, Suspension, Dismissal and Removal) Rules and the Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Conditions) Rules — and the Code of Criminal Procedures (Amendment) Ordinance, to be promulgated within a day or two, are in place, the judiciary will be made independent of the executive. The judiciary, in the subordinate courts, will be constituted by judicial officers and judicial magistrates.
A judicial magistrate will also be a judicial officer. Entry post of the judicial service will be ‘assistant judge’. Assistant judges will be appointed by the president according to the list of the fit candidates prepared by the Judicial Service Commission. For appointment to the post of assistant judge, the Commission will hold tests of the candidates.
The salaries and other benefits of the judicial officers will be determined by the Judicial Service Pay Commission to be formed under the Judicial Service (Pay Commission) Rules.
The organogram of judicial service may be changed only when recommended by the Supreme Court, according to the rules.
The control (including posting, promotion, leave, suspension, dismissal and removal) of judicial officials will be vested in the president and will be executed by him in consultation with the Supreme Court. If there is any conflict of opinion between the Supreme Court and the president, the opinion of the Supreme Court will prevail, as stipulated by the rules.
According to the rules, the 11-member Judicial Service Commission will be formed with a judge of the Appellate Division, to be nominated by the chief justice, as its chairman.
The commission will include two judges of the High Court nominated by the chief justice, attorney general, a member of the Law Commission, secretaries of the ministries of establishment, finance and law, the dean of the law faculty of Dhaka or Chittagong or Rajshahi University, registrar of the Supreme Court and the district judge of Dhaka.
The last government framed the judicial service commission rules on January 28, 2004, which have been repealed by the new rules, and formed a 7-member Judicial Service Commission on February 25, 2004 with a judge of the Appellate Division as its chairman. The commission also included the establishment secretary, finance secretary, law secretary, registrar of the Supreme Court, a member of the Public Service Commission and the district judge of Dhaka.
The last government also framed the Judicial Service Pay Commission Rules on May 21, 2006, making provisions for the formation of a 5-member Judicial Service Pay Commission with the comptroller and auditor general as its chairman and secretaries of the ministries of finance, establishment and law, and the registrar of the Supreme Court, as members.
According to the new rules, framed on Tuesday after repealing the old ones, the commission will be a 9-member body. A judge of the Appellate Division, nominated by the chief justice, will be the chairman of the commission, which will include a judge of the High Court nominated by the chief justice, a member of the Law Commission, the comptroller and auditor general, secretaries to the ministries of finance, establishment and law, registrar of the Supreme Court, and a judicial officer of the rank of district judge working in Dhaka who will be nominated by the chief justice.
According to the Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Conditions) Rules, posting of the judicial officers will be made by the president in consultation with the Supreme Court. A judicial officer will be promoted to a higher post only on recommendation by the General Administration Committee of the High Court, which includes all the judges of the High Court.
According to the new rules, judicial service will have two parts — one includes district and sessions judges, additional district and sessions judges, joint district and sessions judges, senior assistant judges and assistant judges, and the other includes the chief metropolitan magistrate or chief judicial magistrate, additional chief metropolitan magistrate or additional chief judicial magistrate, senior judicial magistrate and judicial magistrate.
The Bangladesh Judicial Service (Constitution, Recruitment, Suspension, Dismissal and Removal) Rules include special provisions for appointing the existing magistrates, who are now performing judicial duties though they are members of the administrative service, in judicial service on deputation as an interim arrangement until a sufficient number of judicial officers are appointed.
According to the special provisions, there will be a selection committee to recommend existing magistrates for absorption in judicial service. The committee will be formed with a judge of the High Court nominated by the chief justice, and five members including the establishment secretary, home secretary, law secretary and registrar of the Supreme Court.
The existing magistrates, however, will have to apply to the selection committee for being absorbed in judicial service. They will have the right to go back to administrative service when the judicial service has a sufficient number of judicial officers. They will also have the scope to continue in judicial service as judicial officers on the recommendation of the Judicial Service Commission.
The Appellate Division detailed the 12-point directive, which will eventually make the judiciary independent, in its verdict on the government’s appeal in the Masder Hossain case, popularly known as the independence of the judiciary case, delivered on December 2, 1999.
Since the delivery of the verdict, all the subsequent governments took repeated extensions of time for implementation of the directives, but failed to implement them or deliberately did not do so.
The last government, however, framed four sets of rules, which were challenged in the court by the counsel of the contempt petitioner, M Amirul Islam, who claimed that there were a number of deviations from the draft rules that were corrected and approved by the court, and the deviations would eventually make the judiciary more subservient to the government instead of making it independent.
Subsequently the court, on January 10, came up with the order.
Meanwhile, the court issued the contempt rule to four top bureaucrats — the then principal secretary to the prime minister Kamal Uddin Siddiqui, law secretary Alauddin Sardar, establishment secretary Mahbubur Rahman and finance secretary M Siddiqur Rahman — on April 3, 2006 after hearing a contempt petition filed by Chowdhury Munir Uddin Mahfuz, a judge in the tribunal for the prevention of repression of women and children in Kishoreganj.
On April 24, 2006 the four top bureaucrats, including Kamal Uddin Siddiqui, submitted their replies to the contempt rule.
Transferring the onus for making the judiciary independent of the executive to the prime minister in their replies, the top bureaucrats denied the allegation of contempt of court and apologised to the Appellate Division for their ‘unintended mistakes’, if any.
Earlier, on November 29, 2004, the court issued a contempt rule against nine mid-ranking bureaucrats for distorting the court’s order at an inter-ministerial meeting held on November 1, 2004.
In line with the directives, the Supreme Court achieved financial independence in the tenure of the Awami League government in 2000.
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