Transfer of judges bone of contention
The bone of contention between the government and the Supreme Court over chief justice Surendra Kumar Sinha’s ‘dual rule’ comment is the transfer of judges. A sense of unrest prevails in the judicial administration over the issue. The Supreme Court’s directives in 2008 were that judges would be transferred in January and July every year. These directives, however, have not been put into effect.
According to Prothom Alo investigations, last year the government proposed the transfer of five judges per day on average. The Supreme Court held a more conservative view, but even so, agreed to the transfer of four judges per day.
Presently, the General Administration (GA) committee comprising the chief justice and three other judges of the High Court division advises the government regarding transfers. After four months, the committee will hold a meeting tomorrow (Thursday) to consider the government’s proposals for the transfer of about 150 judges.
Speaking about a resolution to the tension with the Supreme Court, law minister Anisul Huq told Prothom Alo that the matter would be resolved through discussions.
Due to the delay in implementing certain decisions of the Supreme Court regarding transfers and other disciplinary regulations, the GA committee refrained from taking any decisions at a meeting headed by the chief justice on 19 July. Later, at the behest of the chief justice, a meeting was held at the Supreme Court regarding the management of the lower courts. Judges of the Appellate Division also joined the meeting. Three judges of the High Court, as members of the GA committee, as well as the law minister, Anisul Huq, and law secretary Abu Saleh Sheikh Mohammed Zahirul Huq also attended the meeting. This is the first time a meeting was held with judges of the Appellate Division regarding the lower courts. The meeting took place in a congenial manner, but the GA committee has not held any meeting three months on since then.
Members of the GA committee from the High Court are justice Obaidul Hasan, justice Zeenat Ara, and justice Syed Dastagir Hossain. The transfer of about 150 judges in courts across the country has been pending for the last four months or so. However, there have been some transfers and postings made on special consideration.
In a 2015 report, ‘A Challenge for Change’, edited by Jakhongir Khaydarov, chief technical advisor of the Supreme Court and UNDP project concerning lower courts, it was said that dual rule was inconsistent with the concept of judicial independence.
About the separation of the judiciary and the issue of dual role, former chief justice M Ruhul Amin last Sunday told Prothom Alo, to benefit fully from the Masdar Hossain case, article 116 of the 1972 constitution must be amended and the authority for the transfer of judges, posting and discipline be placed with the Supreme Court. This is also important for the independence of the judiciary. The former chief justice also said the chief justice is the head of the judiciary. He knows best what is required and what is necessary. This is not possible without the amendment of the article 116.
In this regard, law minister Anisul Huq told Prothom Alo that the prevalent system is quite effective. He did not respond in the affirmative as to whether there was any consideration to amend the constitution in the future.
Last year the Supreme Court approved 54.71 per cent of the transfer proposals made by the government and 28.27 per cent of the proposed changes in postings. That means the Supreme Court approved 83.08 per cent of the government’s total transfer proposals. But the law minister, when talking to the Prothom Alo, termed the Supreme Court’s failure to approve 45 per cent of the proposals, as ‘unfortunate’. However, he felt that the matter could be resolved through talks.
Lawyer Shahdeen Malik said, “The chief justice has spoken about dual rule. In our 1972 constitution, transfers, promotions, discipline and everything was under the Supreme Court. It is clear that dual rule has created problems. The control of all these matters must be with the Supreme Court in order to ensure independence of the judiciary. No government wants to relinquish control over the lower courts and that is why dual rule remains intact. This system of dual rule has long been abolished in neighbouring countries.”
The question of priority: The Masdar Hossain court verdict states that the parliament can amend the constitution to render the separation of the judiciary more meaningful. Until the constitution is amended, the verdict approved of a dual rule controlled by the judges. That means a team of judges will join the law ministry on deputation along with the law secretary. They will put forward proposals regarding the transfer and discipline of about 150 judges around the country. But they will follow the Supreme Court’s advice in every case.
Law minister Anisul Huq feels that according to article 116, the president will take decisions in consultation with the Supreme Court. However, the president can exert his own authority in certain instances.
Recently retired district judge Shafiqul Islam Talukdar, however, expressed a different view to Prothom Alo. Selected by the present government, last year he prepared a draft regarding the discipline rules for the lower court in the light of the Masdar Hossain verdict. The draft is under consideration of the Supreme Court.
Shafiqul Islam Talukdar said, “It is true that the president will take advice, according to the constitution. But in light of the Masdar Hossain case verdict, the rules issued by the president give priority to the Supreme Court’s recommendations.” The rules issued by the president state that if there are differences of opinion between the Supreme Court and the ministry or department of the service administration, then the Supreme Court’s recommendation will be given priority. So there is no scope to ignore any recommendation.
Transfer is the bone of contention: It is transfers that have created the most complications and conflict in the matter of dual rule. Prothom Alo conducted a survey of 151 persons whose names lie with the Supreme Court, recommended by the government for transfer. The survey revealed certain startling information.
Sources in the law ministry said they normally propose transfers upon completion of a three-year term. But the survey revealed that only half of the persons recommended for transfer have completed their terms. In fact, of the 151 persons, only 30 have remained in the same post beyond three to five years. There are 45 judges who have been in their posts for two-and-a-half to three years. The most transfers have been proposed for additional district judges--a total of 50. Next there are 40 assistant judges. Then there are also 16 senior assistant judges and 10 senior judicial magistrates of the same rank. The survey shows that there are transfer proposals for 28 judges who haven’t been in the posts for even six months. There are transfer proposal for 34 judges who have been for one to two years in their posts.
Officials of the law and justice division said that they cannot simply be blamed in a one-sided manner. There are reasons for transfers such as promotions, administrative requirements, coordination of a chain in transfers when one transfer makes another inevitable, adjusting with spouses’ posting, medical reasons, etc. Explanations are sought in each case.
Not all their explanations are acceptable to the Supreme Court. It is also true that in the proposals for transfer made by the Supreme Court, the condition for fulfilling the three-year term is not always met.
No to 17 per cent: In the 212 working days of 2015, the Supreme Court approved 83 per cent of the transfer proposals made by the government. It only directly rejected 17 per cent of the transfer proposals. The government reportedly, however, wants 100 per cent approval.
According to the law ministry’s assessment, in the first six months of the current year, of the proposals submitted by the government for the transfer of 264 judges, the Supreme Court approved 141 (53.40 per cent), gave alternative proposals in the case of 82 (31.03 percent) and disagreed in the case of 41.
In the 106 working days of the first six months of the current year, the government has on average proposed transfer of 2.5 judges per day, but the Supreme Court has only agreed to one. The government is not happy where the proposals have been approved but alternative postings given. The government takes this as a ‘no’.
Policies: According to the Masdar Hossain case verdict, a judge remaining in a particular post for a specific term is intractably tied to the independence of the judiciary. There are no detailed written rules regarding the determination of transfer, posting and promotion of judges. However, within a week of justice MM Ruhul Amin taking over as chief justice, he issued a letter to the law secretary on 9 June 2008, determining a specific transfer policy for the Supreme Court and the government. The letter stated that unless there was a matter of promotion or any special circumstances, the court expresses its opinion in favour of transfer proposals in general being submitted every year in January and July and the court’s recommendations being taken in this regard. MM Ruhul Amin had no immediate comment when this matter was brought to his attention.
Prothom Alo submitted a letter on 30 October to Supreme Court registrar general Syed Aminul Islam, inquiring about the effectiveness of this matter. Sources in the Supreme Court administration indicated that the GA committee is considering strict adherence to this policy from now on. But sources in the law ministry said that it is not practical to follow such a policy in the context of Bangladesh. Yet up until 1991, the tradition of taking up the transfer process every year in January and July was followed by the judiciary.
The present rules are that the government will give the proposal in every case for transfers and postings. The government maintains that according to the constitution, this is not the Supreme Court’s jurisdiction. Sources in the law ministry said that in recent years the Supreme Court on its own accord proposed the transfer of 50 judges. The government carried out most of these recommendations.
In reply to a question of Prothom Alo, law minister Anisul Huq on 26 October admitted that there was need for written rules regarding the transfer of judges. He said he would place the matter under consideration.
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The article originally published in Bengali in Prothom Alo print edition is rewritten in English by Ayesha Kabir