FOR IMMEDIATE RELEASE
AHRC-STM-164-2009
August 04, 2009
A Statement by the Asian Human Rights Commission
BANGLADESH: Bangladesh should be careful about the Judiciary's
independence
The Government of Bangladesh issued a notification on July 30, 2009
that the country's President had forced the retirement of two Judges
-- Mr. Abdul Gafur, the District and Sessions Judge of Dhaka
district, and Mr. Md. Shahjahan Shaju, Judge of the Women and
Children Repression Prevention Tribunal of Gazipur district -- for
"violating service rules". The two judges as the President and
General Secretary of the Bangladesh Judicial Service Association
respectively led a demonstration on July 27 at the Bangladesh
Secretariat, the administrative headquarters of the country.
According to reports, around 100 judges of the country arrived at the
Bangladesh Secretariat on July 27 to demonstrate against some
decisions made by the government regarding the exercise of power by
the administrative officials over the judiciary, which undermines its
independence. The Bangladesh Judicial Service Association, a
professional organization of the judicial officers of the country,
organised the demonstration. The leaders of the Association met the
Law, Justice and Parliamentary Affairs Minister Barrister Shafique
Ahmed to press their demands. The Minister told the media that the
judicial officers met him to "express their opinion on the decision
to divide the Law Ministry into two divisions the Legislative and
Parliamentary Affairs and the Law and Justice Affairs" as the
government was planning to do. Responding to a question asked by a
journalist the minister stated that the issue relating to the judges
retirement, the reason for participating in the demonstration, is a
matter for the Supreme Court to decide.
During the course of the demonstration, the Deputy Secretary
(Security) of the Ministry of Home Affairs allegedly directed a group
of armed police to search the bodies of the judges, which was taken as
an insult to the judicial officers. The bureaucrats accused the judges
of unlawful access to the ministry. On the other hand, the judicial
officers claimed that they attended in order to prevent the
government from a "pre-planned" subjugation of the Judiciary at the
hands of the bureaucrats. They also demanded the removal of the
Secretary, the bureaucratic head of the Law Ministry, Mr. Habibul
Awal, whose controversial recruitment in the office is pending before
the Supreme Court and who was also accused of pro-executive actions
which undermines judicial independence.
On July 30, the Government issued a notification that the country's
President forced two judges into retirement. These two judges are
President and General Secretary of the Bangladesh Judicial Service
Association respectively. The notification said that "in order to
maintain discipline in the public service, the Government sent the
two judges into retirement in accordance with Section 9(2) of the
Public Servants (Retirement) Act-1974.
After the Presidential order, the judicial officers declared that
they would challenge the governmental decision of forced retirement
before the higher judiciary. They termed the decision illegal. The
decision required "consultation with the Supreme Court", according to
Article 116 of the Constitution of Bangladesh and Section 6 of the
Judicial Service (Constitution, Recruitment, Suspension, Dismissal
and Removal) Rules-2007.
On August 3, the government, in a separate notification, cancelled
its previous decision of forced retirement of the two judges. The
notification said that there was a procedural mistake regarding the
previous decision.
The factual instances clearly show that there was abuse of government
powers regarding the forcible retirement of the two judges. The
violations are as follows:
Firstly, forcible retirement is deemed to be a punishment. According
to the law nobody is authorized to inflict punishment to anybody
without a competent and fair trial, which did not happen in this
case.
Secondly, the Judiciary of Bangladesh has been officially separated
since 1 November 2007 and the way in which the current Parliament
ratified the law was executed without much priority. Independence of
the Judiciary clearly means that the Government should not have any
authority to intervene into the judicial matters as it has practiced
in the past as part of the executive branch. Instead, the Supreme
Court of Bangladesh should have all power to deal with the issues of
the judiciary and matters relating to the judges services.
Thirdly, the decision of forcing the two judges into retirement
without consulting the Supreme Court is a violation as per Article
116 of the Constitution of Bangladesh, which reads: "The control
(including the power of posting, promotion and grant of leave) and
discipline of persons employed in the judicial service and
magistrates exercising judicial functions shall vest in the President
and shall be exercised by him in consultation with the Supreme Court."
In reality, the Government did not consult with the Supreme Court on
this regard and thus clearly violated the constitutional provision.
Also, the governments claim regarding the "procedural mistake" was a
fictitious excuse.
The Asian Human Rights Commission (AHRC) urges the executive
authorities of Bangladesh not to infringe on the independence of the
judiciary of the country. Instead, their responsibility is to support
the process of judicial separation through ensuring its financial
autonomy and enriching its logistic and infrastructural needs for the
sake of the Rule of Law, which is the ultimate goal of the nation. The
AHRC also urges civil society of Bangladesh to increase debates
constantly within the country and pressure the government by exposing
the defects and loopholes of the judicial process that remain an
obstacle to the independence of the judiciary and the implementation
of the Rule of Law. The nation should explore the reasons why the
judges have to demonstrate for their demands and how rational their
claims are in terms of judicial independence.
# # #
About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984.
-----------------------------
Asian Human Rights Commission
19/F, Go-Up Commercial Building,
998 Canton Road, Kowloon, Hongkong S.A.R.
Tel: +(852) - 2698-6339 Fax: +(852) - 2698-6367
AHRC-STM-164-2009
August 04, 2009
A Statement by the Asian Human Rights Commission
BANGLADESH: Bangladesh should be careful about the Judiciary's
independence
The Government of Bangladesh issued a notification on July 30, 2009
that the country's President had forced the retirement of two Judges
-- Mr. Abdul Gafur, the District and Sessions Judge of Dhaka
district, and Mr. Md. Shahjahan Shaju, Judge of the Women and
Children Repression Prevention Tribunal of Gazipur district -- for
"violating service rules". The two judges as the President and
General Secretary of the Bangladesh Judicial Service Association
respectively led a demonstration on July 27 at the Bangladesh
Secretariat, the administrative headquarters of the country.
According to reports, around 100 judges of the country arrived at the
Bangladesh Secretariat on July 27 to demonstrate against some
decisions made by the government regarding the exercise of power by
the administrative officials over the judiciary, which undermines its
independence. The Bangladesh Judicial Service Association, a
professional organization of the judicial officers of the country,
organised the demonstration. The leaders of the Association met the
Law, Justice and Parliamentary Affairs Minister Barrister Shafique
Ahmed to press their demands. The Minister told the media that the
judicial officers met him to "express their opinion on the decision
to divide the Law Ministry into two divisions the Legislative and
Parliamentary Affairs and the Law and Justice Affairs" as the
government was planning to do. Responding to a question asked by a
journalist the minister stated that the issue relating to the judges
retirement, the reason for participating in the demonstration, is a
matter for the Supreme Court to decide.
During the course of the demonstration, the Deputy Secretary
(Security) of the Ministry of Home Affairs allegedly directed a group
of armed police to search the bodies of the judges, which was taken as
an insult to the judicial officers. The bureaucrats accused the judges
of unlawful access to the ministry. On the other hand, the judicial
officers claimed that they attended in order to prevent the
government from a "pre-planned" subjugation of the Judiciary at the
hands of the bureaucrats. They also demanded the removal of the
Secretary, the bureaucratic head of the Law Ministry, Mr. Habibul
Awal, whose controversial recruitment in the office is pending before
the Supreme Court and who was also accused of pro-executive actions
which undermines judicial independence.
On July 30, the Government issued a notification that the country's
President forced two judges into retirement. These two judges are
President and General Secretary of the Bangladesh Judicial Service
Association respectively. The notification said that "in order to
maintain discipline in the public service, the Government sent the
two judges into retirement in accordance with Section 9(2) of the
Public Servants (Retirement) Act-1974.
After the Presidential order, the judicial officers declared that
they would challenge the governmental decision of forced retirement
before the higher judiciary. They termed the decision illegal. The
decision required "consultation with the Supreme Court", according to
Article 116 of the Constitution of Bangladesh and Section 6 of the
Judicial Service (Constitution, Recruitment, Suspension, Dismissal
and Removal) Rules-2007.
On August 3, the government, in a separate notification, cancelled
its previous decision of forced retirement of the two judges. The
notification said that there was a procedural mistake regarding the
previous decision.
The factual instances clearly show that there was abuse of government
powers regarding the forcible retirement of the two judges. The
violations are as follows:
Firstly, forcible retirement is deemed to be a punishment. According
to the law nobody is authorized to inflict punishment to anybody
without a competent and fair trial, which did not happen in this
case.
Secondly, the Judiciary of Bangladesh has been officially separated
since 1 November 2007 and the way in which the current Parliament
ratified the law was executed without much priority. Independence of
the Judiciary clearly means that the Government should not have any
authority to intervene into the judicial matters as it has practiced
in the past as part of the executive branch. Instead, the Supreme
Court of Bangladesh should have all power to deal with the issues of
the judiciary and matters relating to the judges services.
Thirdly, the decision of forcing the two judges into retirement
without consulting the Supreme Court is a violation as per Article
116 of the Constitution of Bangladesh, which reads: "The control
(including the power of posting, promotion and grant of leave) and
discipline of persons employed in the judicial service and
magistrates exercising judicial functions shall vest in the President
and shall be exercised by him in consultation with the Supreme Court."
In reality, the Government did not consult with the Supreme Court on
this regard and thus clearly violated the constitutional provision.
Also, the governments claim regarding the "procedural mistake" was a
fictitious excuse.
The Asian Human Rights Commission (AHRC) urges the executive
authorities of Bangladesh not to infringe on the independence of the
judiciary of the country. Instead, their responsibility is to support
the process of judicial separation through ensuring its financial
autonomy and enriching its logistic and infrastructural needs for the
sake of the Rule of Law, which is the ultimate goal of the nation. The
AHRC also urges civil society of Bangladesh to increase debates
constantly within the country and pressure the government by exposing
the defects and loopholes of the judicial process that remain an
obstacle to the independence of the judiciary and the implementation
of the Rule of Law. The nation should explore the reasons why the
judges have to demonstrate for their demands and how rational their
claims are in terms of judicial independence.
# # #
About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984.
-----------------------------
Asian Human Rights Commission
19/F, Go-Up Commercial Building,
998 Canton Road, Kowloon, Hongkong S.A.R.
Tel: +(852) - 2698-6339 Fax: +(852) - 2698-6367
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