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`Struggle to secure independence of judiciary foiled`

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13th-Dec-2017       
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Gulam Rabbani :
Legal experts and senior lawyers have expressed mixed reactions over the published gazette notification on the disciplinary rules for the lower court judges.
Some said that the disciplinary rules for the lower court judges treated them as the officials of the Republic, which is not correct. Because, lower court is a constitutional institution, they said.
On the other hand, some others said that the gazette was formulated in line with the Constitution.
Bangladesh Government (BG) Press on Monday evening published the 24 pages gazette notification on disciplinary rules for the lower court judges retaining the President's authority on the judges.
Former Law Adviser of the Caretaker Government Barrister Mainul Hosein, Barrister M Amir-ul Islam, Supreme Court Bar Association President Advocate Zainul Abedin, Attorney Genral Mahbubey Alam and former Law Minister Barrister Shafiq Ahmed expressed their reactions to journalists on the published gazette.
"All the struggle over the years to secure independence of the judiciary has been foiled in violation of the Constitution. It is the mandate of the Constitution to pass law for completing independence of the judiciary by separating the lower judiciary. By the judgement in  Masdar Hossain  case the Supreme Court directed the government to pass necessary law as stipulated in the judgement. No political government heeded to make the judiciary independent. This government has made futile all efforts to establish independent judiciary," said former Law Adviser of the Caretaker Government Barrister Mainul Hosein.
He also said, "More than forty years later under the military backed caretaker government, I as Law Adviser, was able to separate the lower judiciary as directed by the Supreme Court. This government proved again that it is also not ready to tolerate independence of the judiciary. Under the present rules, the power of controlling the lower court judges is vested in the President. But in effect the Prime Minister will have this power of controlling the lower judiciary because the President acts on advice of the Prime Minister. Besides, the Law Ministry can't have any role under independence of the judiciary. The need of separate secretariat has also been denied."
 "The starting of the published is defective. I am surprised; the government took the Judicial Service Commission under the Law Ministry. It should have been done according to the Article 116 of the Constitution. But they did it according to the Article 133 of the Constitution, which is applicable for the officials of the Republic," said Barrister M Amir-ul Islam.
He added, "The power of the President cannot be exercised by the Law Ministry."
Barrister Amirul Islam said also, "Lower court is a constitutional institution. So, its judges should not be treated as the officials of the Republic. The President has been given the power to control the lower court judges retaining the independence of the judiciary in line with the Masdar Hossain case verdict and the Constitution."
 "The President will take action on advice of the Supreme Court. But the published gazette does not say so. Through this gazette, subordinate courts have gone under the control of the Law Ministry," he said.
Supreme Court Bar Association President Advocate Zainul Abedin said, "The published gazette has destroyed the spirit of the separation of power. Through this gazette, subordinate courts have gone under the control of the Law Ministry."
Meanwhile, Attorney General Mahbubey Alam said, "An embarrassing situation has come to an end through publication of this gazette. I have to sit in the middle position of the Executive and the Judiciary, which is called the bridge. I had to take time again and again. It was embarrassing for me. This embarrassing situation has come to an end."
 "Whatever steps the President takes, it will be taken in consultation with the Supreme Court. It is said clearly in the gazette that if any allegation in raise against any service member, then further proceedings will be taken by the President after consultation with the apex court," he added.
Indicating the former Chief Justice Surendra Kumar Sinha, the Attorney General also said, "The former CJ wanted to keep the full power in the Supreme Court's hand. But it was a position contrary to the Constitution."
Former Law Minister Barrister Shafiq Ahmed said, "Misunderstandings between the Judiciary and the Executive ended with the publication of this gazette."

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