Appellate Division Cases
(Civil)
PARTIES
Md. Idrisur Rahman, Advocate, Supreme Court of Bangladesh, 42/1, Ka Segun Bagicha, Dhaka…………………………………………………. Petitioner.
Vs.
Syed Shahidur Order Rahman and others…………………….. Respondents
JUDGES
Syed J.R. Mudassir Husain CJ
M.M. Ruhul Amin J
Md. Tafazzul Islam J
M.A. Aziz J
Amirul Kabir Chowdhury J
Date of Judgment
25th April 2005
Provisions of the Constitution Article 96(6), 48(2)
Article 96(5) of the Constitution of the Peoples Republic of Bangladesh brought the matter to the notice of the President of the Republic by letter dated 20.10.2003. The President of the Republic directed Supreme Judicial Council to inquire into the matter and the Supreme Judicial Council in short Council held inquiry and submitted report stating, inter alia, ” though the allegations against Mr. Justice Syed Shahidur Rahman are not proved beyond doubt but on consideration of the facts and circumstances and the materials on record in their entirety it cannot be said that there is total absence of material in support of the allegations nor can it be said that the allegations are without any basis. (2)
A concerned member of the civil society felt that the issues raised in the writ petition having constitutional ramifications and affecting public interest and fundamental rights of the citizens this Division should be moved and hence filed the instant petition for leave (4)
Supreme Court, cannot be subject matter of the writ petition. Moreso there being other efficacious remedy being available the writ petition has no leg to stand (6)
In the matter is of utmost public importance and relates to important interpreta
^ tion of Article 96 of the Constitution and as such the matter is required to be examined
by this Division. Repelling the objection made on behalf of the respondent Dr.Hossain submits emphatically that the litigation in question admittedly affects the judiciary. A lawyer, the petitioner, therefore, cannot be dined the gate way to enter into the arena of the suit and thus cannot be ‘told off at the gate.” (7)
For that in passing impugned judgment and order the Hon’ble Court below erred _ in law in failing to appreciate that by being silent as to any standard of proof that may be applicable in forming an opinion of gross misconduct of the Judge concerned, Article 96(6) of the Constitution has left this issue entirely below as to the standard of proof that the Council ought to have applied are without lawful authority (14)
For that the Hon’ble Court below failed to appreciate that the scheme of the Constitution as to the removal of a judge of the Supreme Court is sui generis in nature, inasmuch that it does not require an adjudication of fats in the nature of a civil or criminal trial, and that the protection from being removed from office upon an allegation of gross misconduct is given to judges no by making the proof of such allegation subject to process of adjudication, but rather by making such allegation the subject matter of (1) a direction to the Supreme Judicial Council to inquire and to report finding made by the Hon’ble President upon a satisfaction that there is reason to apprehend, inter alia, gross misconduct on the part of judge arrived at on the basis of information received and (2) formation of an opinion of such gross misconduct upon the inquiry by the Supreme Judicial Council, which comprises of the three most senior judges of the Supreme Court of Bangladesh (17)
For that the issues raised by this application touch and concern the general interest of the public, including the petitioner herein, and hence this application is maintainable at the instance of the petitioner, (19)
ADVOCATES
Dr. Kamal Hossain, Senior Advocate, (Khalilur Rahman, Advocate and Tangib-ul-Alam, Advocate with him) instructed by Syed Mahbubur Rahman, Advocate-on-record. For the Petitioner .Ajmalul Hossain QC, Senior Advocate, Instructed by Miv. Md. Wahidullah, Advocateon-Record. -For Respondent No. 1 Not represented—Respondent Nos. 2-5
ORDER
1. Amirul Kabir Chowdhury J :- Md. Idrisur Rahman an Advocate practicing in the Supreme Court of Bangladesh in this petition seeks leave to appeal against the judgment
and order dated 02.02.2005 passed by the High Court Division in Writ Petition No. 2554
of 2004 making the rule absolute.
2.. The facts, in short, are that the respondent No. 1 instituted writ petition No. 2454 of 2004 challenging the order communicated under notification dated 20.04.2004 issued by the Secretary Ministry of Law Justice and Parliamentary Affairs, Governmet of Bangladesh (respondent No. 3,) intimating that the President of the Republic has removed the writ petitioner from his office as Additional Judge of the High Court Diision. In the writ petition it was stated that the then President of the Supreme Court Bar Association in his address at a meeting of the lawyers alleged that inefficient persons have been elevated to the Bench and one of the Judge violating the code of conduct receive Tk. 50,000/- from a client fixing bail and that the matter being published in the press Hon’ble Chief Justice of Bangladesh by letter dated 16.10.2003 requested the then president of the Bar to address him in writing the complaint giving the name of the judge and in reply the President of the Bar on 14.10.2003 informed that the allegation related to the conduct of the writ petitioner respondent and upon receipt of the reply of the President of the Bar, the Chief Justice under Article 96(5) of the Constitution of the People’s Republic of Bangladesh brought the matter to the notice of the President of the Republic by letter dated 20.10.2003. The President of the Republic directed Supreme Judicial Council to inquire into the matter and the Supreme Judicial Council in short Council held inquiry and submitted report stating, inter alia, ” though the allegations against Mr. Justice Syed Shahidur Rahman are not proved beyond doubt but on consideration of the facts and circumstances and the materials on record in their entirety it cannot be said that there is total absence of material in support of the allegations nor can it be said that the allegations are without any basis. Therefore, in our opinion Mr. Justice Syed Shahidur Rahman should not continue as an Additional Judge of the High Court Division of the Supreme Court of Bangladesh. “On receipt of the aforesaid report the writ petitioner has been removed by the President of the Republic as communicated in the impugned notification dated 20.4.2004. Hence was the writ petition.
3. No affidavit-in-opposition was filed on behalf of the writ respondents though the learned Attorney General appeared and made submissions on behalf of the respondent Nos. 1 to 3. A Division Bench of the High Court Division after hearing the parties made the rule absolute holding, inter alia, that the learned Attorney General after reading the
rule, report of the Supreme Judicial Council and the provisions of Article 96(6) of the
Constitution found it difficult to support the V1 impugned order of removal.
4. The petitioner claiming to have promoted public interest and cause through public interest and cause through public interest litigations, involved in organizations like Bangladesh Legal Aid and Service Trust (BLAST) and Ain-o-Salish Kendra (ASK) is said to have been involved in public interest litigations and already filed a few cases in both the Divisions and being an Advocate and a concerned member’of the civil society felt that the issues raised in the writ petition having constitutional ramifications and affecting “^ public interest and fundamental rights of the citizens this Division should be moved and hence filed the instant petition for leave.
5. In support of the petition Dr. Kamal Hossain. learned Counsel submits, inter alia, that the petitioner being conscious citizen more so being an Advocate of the Supreme Court involved in public interest litigations is in fact a symbol pro bono publico litigation and feeling concerned at the impugned pronouncement of the High Court Division felt constrained to file the instant petition. 6. He further submits that the order of the President of the Republic based on the information of the Supreme Judicial Council, the apex of apex body i.e. Supreme Court, cannot be subject matter of the writ petition. Moreso there being other efficacious remedy being available the writ petition has no leg to stand. On the face of failure of the respondents to file any affidavit in the matter, Dr. Kamal Hossain, wonders how the learned Attorney General could submit that he found it difficult to support the order of removal of the writ petitioner. The learned Counsel finds fault with the observation of the High Court Division that “the impugned order reflects the non-application of mind by the Hon’ble President in passing the order of removal of
the writ petitioner” and submits that the High Court Division was not justified to make such observation as to alleged non-application of mind by the Hon’ble President. Referring to Article 48 (2) of the Constitution Dr. Hossain submits that in exercise of all his functions save only that of appointing the Hon’ble Prime Minister and Hon’ble Chief Justice of Bangladesh the President is to act in accordance with advice of the Hon’ble Prime Minster and in the instant case neither the Hon’ble President nor the Hon’ble prime
Minister or any other person/persons on whose advice the President passed the order of removal was given chance of being heard.
7. He further submits that the question involved in the matter is of utmost public importance and relates to important interpretation of Article 96 of the Constitution and as such the matter is required to be examined by this Division. Repelling the objection made
on behalf of the respondent Dr.Hossain submits emphatically that the litigation in question admittedly affects the judiciary. A lawyer, the petitioner, therefore, cannot be dined the gate way to enter into the arena of the suit and thus cannot be ‘told off at the gate.” 8. Mr. Ajmalul Hossain QC, learned Counsel appearing for the respondent No.l, on the other hand opposes the petition submitting, interalia, that the present petitioner was not party in the writ petition nor is an aggrieved person under any consideration and as such the petition is required to be thrown away in limine.
9. He further submits that there being no affidavit-in-opposition the averments made on behalf of the writ petitioner challenging the propriety of the report of the Supreme Judicial Council in fact stand unrebutted. The Counsel further contends that Council was asked to hold an inquiry whether the writ petitioner has been guilty of gross misconduct and the said Council found that the allegations against the writ petitioner were not proved beyond doubt and as such the order of the Hon’ble President removing him cannot be justified. 10. He further submits that the Council was directed to hold inquiry as to whether the writ petitioner could be found guilty of gross misconductand the Council failed to find him as such but unnecessarily added in the report, their opinion that the petitioner should not continue as an Additional Judge of the High Court Division and that this addition was beyond the Compass of the Council because the Council was directed to hold inquiry into the allegation of misconduct, if any of the writ petitioner. In the premises, according to him, the leave petition is liable to be dismissed.
11. In support of the respective submission both the parties cited decisions which include cases of the President Vs. Mr. Justice Shaukat Ali reported in 1971PLD (SC) 585, S.P. Gupta and others Vs. K.B.N. Singh (Chief Justice) and others reported in 1982 AIR(SC) 149 and Dr. P. Nalla Thampy Thera Vs. Union of India and others reported in Supreme Court Cases 307.
12. We have considered the submissions made on behalf of the parties. In view of the facts and circumstances of the cases the submissions of the learned Counsel for the petitioner merit consideration .
13. Leave is granted to consider the following grounds: For that in passing impugned judgment and order the Hon’ble Court below erred in law in holding .that in proceedings under Article 96(6) of the Constitution, it is required that the allegation has to be proved beyond doubt before the Hon’ble Supreme Judicial Council (the Council) can form the opinion that the judge has been guilty of gross misconduct.
14. For that in passing impugned judgment and order the Hon’ble Court below erred in law in failing to appreciate that by being as to any standard of proof that may be applicable in forming an opinion of gross misconduct of the Judge concerned, Article 96(6) of the Constitution has left this issue entirely at the discretion of the Council itself, and to the Hon’ble Court below as to the standard of proof that the Council ought to have applied are without lawful authority.
15. For that in passing the impugned judgment and order the Hon’ble Court below erred in law in failing to appreciate that in the instant case, in deciding the applicable standard for satisfaction as to the existence of the necessary state of affairs, the Council stated in its Inquiry Report that “in an inquiry though the ordinary procedure of admitting or accepting particular facts or statement into evidence is not strictly applicable but rule of procedure demands that the allegation before the inquiry should be supported by some reliable statement (s)”and that the Council found such support in the instant case “on consideration of the facts and circumstances on the record in their entirety” when it gave the opinion and / or finding that” it cannot be said that there is total absence of material in support of the allegations nor can it be said that the allegations are without basis”
16. For that in passing the impugned judgment and order the Hon’ble Court below erred in law in holding that the Council has found the allegation against the Judge as not been proved and that the Council has not given any opinion and/or finding that the respondent No.l was guilty of gross misconduct inasmuch that the Hon’ble Court below ignored the opinion of the Council in the Inquiry Report that “it cannot be said that there is total absence of material in support of the allegations nor can it be said that the allegations are without basis” which amounts to an opinion and /or finding that there has been gross misconduct. the Hon’ble Court below failed to appreciate that the scheme of the Constitution as to the removal of a judge of the Supreme Court is sui generis in nature, inasmuch that it does not require an adjudication of fats in the nature of a civil or criminal trial, and that the protection from being removed from office upon an allegation of gross misconduct is given to judges no by making the proof of such allegation subject to process of adjudication, but rather by making such allegation the subject matter of (1) a direction to the Supreme Judicial Council to inquire and to report finding made by the Hon’ble President upon a satisfaction that there is reason to apprehend, inter alia, gross misconduct on the part of judge arrived at on the basis of information received and (2) formation of an opinion of such gross misconduct upon the inquiry by the Supreme Judicial Council, which comprises of the three most senior judges of the Supreme Court of Bangladesh.
18. For that the Hon’ble Court below erred in law in passing the impugned judgment and order in much as a Division Bench of the High Court Division of the Supreme Court of Bangladesh ought not to have arrogated to itself the jurisdiction to judicially review the proceedings, findings and opinions of the Supreme Judicial Council, which is comprised of three most Senior Judges of the Appellate Division of the Supreme Court of Bangladesh.
19. For that the issues raised by this application touch and concern the general interest of the public, including the petitioner herein, and hence this application is maintainable at the instance of the petitioner, who was not a party to the writ petition. 20. Security of Tk. 1000/- is to be deposited within one month.
21. Preparation of paper book is dispensed with as prayed for.
22. Operation of the impugned judgment and order dated 02.02.2004 passed by the High Court Division in Writ Petition No. 2454 of 2004 be stayed for 6(six) months.
23. The petitioner is directed to make the appeal ready for expeditious hearing.
Source: III ADC (2006) 896