SC stays verdict on service discipline rules for lower court judges

The Appellate Division of the Supreme Court has stayed its 2018 order that accepted the gazette on the disciplinary rules for lower court judges, which was issued in the landmark Masdar Hossain case on judicial separation.

Watch: What lawyers say

The order was passed today (29 June) by a bench led by Chief Justice Syed Refaat Ahmed.

Lawyer Mohammad Shishir Manir argued on behalf of the petitioner, while Attorney General Md Asaduzzaman represented the state.

Speaking to reporters, Shishir Manir said the Supreme Court has stayed the 2018 order issued by the then acting Chief Justice, which had accepted the gazette on the disciplinary rules for lower court judges. "This means the order no longer holds any effect," he said.

"Secondly," he added, "the existing disciplinary rules will remain in force on an interim basis."

"Thirdly, the ongoing High Court hearing on Article 116 of the Constitution – regarding the establishment of a separate secretariat for the judiciary – can now proceed without obstruction."

He further explained that during the High Court hearings on the disciplinary rules, a question was raised about whether the matter could be heard while a previous Appellate Division order remained in effect. "With today's stay order, that obstacle has been removed," he said.

On 2 December 1999, the Supreme Court delivered its landmark verdict in the Masdar Hossain case, issuing 12 directives to ensure the separation of the judiciary from the executive. One of those directives called for the formulation of service and disciplinary rules for lower court judges.

Following that directive, a gazette notification on the rules was issued on 11 December 2017. On 3 January 2018, the Supreme Court accepted the gazette through a formal order.

Last month, eight lawyers – including Shishir Manir – filed a review petition with the Appellate Division, seeking reconsideration of that 2018 order as third parties.

After concluding the hearing on last Thursday (26 June), the court set today to deliver its order.

'2018 rules undermined lower court independence'

Speaking to reporters on 26 June, lawyer Mohammad Shishir Manir said the 2018 disciplinary rules severely compromised the independence of the lower judiciary.

"Through those rules, our judicial officers in the lower courts were effectively placed under the control of the Law Ministry as the designated authority. We filed the review petition to challenge that order, and the court has now heard our arguments," he said.

During the hearing, he argued that the rules were adopted under questionable circumstances.

"At that time, the judiciary was assaulted in a way that forced the then Chief Justice to leave the country. The rules were later accepted by a bench led by the acting Chief Justice, even though a previous full bench of nine justices had delivered a different decision."

He added, "After the Chief Justice was made to resign and an acting Chief Justice was appointed, the rules were approved by a smaller bench of five justices. These rules were unfair, degrading, and a major blow to the independence of subordinate court judges."

"This was an unprecedented event in the history of our judiciary," he said. "The then government forced the judiciary to deliver this order using its influence."

Referring to former Chief Justice Surendra Kumar Sinha, Shishir Manir said the former CJ described the events in his book "A Broken Dream".

"One day, we found he wasn't appearing in court. It was said that he was sick and staying at home. Senior lawyers asked the court where the Chief Justice was, and the government responded that he was unwell. But later it was revealed that he wasn't ill. He himself said so."

"Still, he wasn't allowed to return to the bench. He was sent abroad and never allowed to come back. Eventually, he was forced to resign from there. Only after his departure were the disciplinary rules adopted," Shishir Manir said.