The New Nation - Internet Edition

M I Farooqui

Bangladesh judiciary has attained "collective independence" vis-a-vis the Executive, which include "personal and substantive independence" of the 'judges as well. This we achieved in December 1999 in Masdar Hossain's Case (20 BLD AD 104) that has been substantially implemented by the present Caretaker Government headed by Dr. Fakhruddin Ahmed.

'What we have achieved is the terms and conditions of judicial service of lower tiers having adequately secured to ensure that individual judges are not subject to executive control and that in the discharge of their judicial functions a judge is subject to the law and his conscience. We have achieved what the International Bar Association (IBA) had formulated in 1982 under the title "Personal and substantive independence" of the judges to 'attain the "collective independence".

In the "hierarchy of the judiciary in Bangladesh the "personal and substantive independence" of the judges of the Supreme Court is secured under Part VI of the Constitution of the Republic. The tenure of offices of the judges is fully ensured until they attain the age of sixty-seven; they cannot be removed from office except through the legal process of Supreme Judicial Council under Article 96. On reference from the President the Council has constitutional authority to enquire into the capacity or conduct of a judge or of any other functionary who is not removable from office except in like manner as a judge. The President may direct the Council to enquire into the conduct of a judge if he apprehends that a judge has ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity; or has been guilty of gross' misconduct. If, after making the inquiry, the Council reports to the President that in its' opinion the judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the judge from office.

The IBA's minimum standard of judicial independence also requires that "the ministers of the government shall not exercise any form of pressure on judges, whether overt or covert, and shall not make statements, which adversely affect the independence of individual judges or of judiciary as a whole." To malign a judge or the judiciary in the name of "irregular appointment" by the past Government with spectre of twenty years to bear them is derogatory to the concept of independence of the judiciary. There judges of the superior court are unwittingly made laughing stocks by un-thought-of comments. The might be irregular and incapable judges on the bench. But who is the best judge amongst the judges? There is constitutional way to judge them in the interest of a constitutional way of life that we still claim. Basic Principles on the Independence of Judiciary were endorsed by the General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The basic principles also endorse that judges shall be subjected to suspension or removal only for reasons of incapacity or behaviour, that renders them unfit to discharge their duties and all disciplinary suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

'Why should we bear this burden of wrongs of the past for the next twenty years?" .

This was a question raised by a senior member of the Bar in reply to the apprehension of the honourable Chief Justice Md.. Ruhul Amin that irregularities in 'the appointment of judges in the past would require twenty years to correct. Another former Chief Justice Mr. Justice Mustafa Kamal who is Chairman of the Law Commission has suggested forming of a 'council of elders' to look into the allegations against and conduct of the judges. He further said that the idea to form 'council of elders' is accepted in different Countries to institutionalise such councils. Some national dailies in their scoops had apprehended that the President would soon invite some of the judges over cups of tea to show them the door.

Let us examine how the advanced countries have acted to resolve similar issues.

Disciplinary actions in USA:

All federal judges appointed under the provisions of Article III of the Constitution hold office "during good behavior", which means in effect for life or until they choose to step down. The only way they can be removed from the bench is by impeachment (indictment by the House of Representatives) and conviction, by the Senate. In accordance with constitutional requirements (for Supreme Court justices), impeachment may occur for "treason, bribery, or other high crimes and misdemeanors. Since 1789 the House of Representatives has initiated impeachment proceedings against only 13 jurists, although about an equal number of judges resigned just before formal action was taken against them. Of these 13 cases, only seven resulted 'in a. conviction, which removed them from office. In USA also retirement and removal of judges is difficult. Retirement plans, no matter how effective in getting the older judge to resign, are of little use against the younger jurist who is incompetent, corrupt, or unethical. Throughout American history the states have used procedures such as impeachment, recall elections, and concurrent resolutions of the legislature to dismiss these judges. These methods were only minimally effective, however, either because they proved to be politically difficult to put into operation or because of their time-consuming cumbersome nature. Judges often time their resignations to occur when their party controls the presidency so that they will be replaced by a jurist of similar political and judicial orientation. A 1990 study found that especially since 1954, "judicial retirement/resignation rates have been strongly influenced by political/ideological consideration, and infused with partisanship" thus indicating that many jurists view themselves as part of policy link between the people, the judicial appointment process, and the subsequent decisions of the judges and justices. See www.usinfo.state.gov

Disciplinary action in India:

Judges in India are protected in the way the USA judges are protected till they attain the age of 65 years. They cannot be removed unless they are impeached by the Parliament. Mr. Ram Jethmalani in his article, Judiciary and Corruption (composed in December 1991) printed in his book "Conscience of a Maverick" has vividly described misconducts of some Indian judges:

Serious allegations of misconduct were widely aired in June 1990. Justice Mr. S K Desai, the senior most puisne Judge of the Bombay High Court had to resign as he was transferred following an allegation that he had attempted to influence Justice Mr. M P Konia in a case that was pending before the two of them. Some years ago, Rs. 32 lakh were discovered from the house of Chief Justice Mr. Veeraswamy. The CBI registered a case involving this recovery which is still pending. Former Chief Justice' of India Mr. Venkataramaiah publicly stated that out of a total of about 450 High Court Judges all over the country, as many as 90 'were out practically every evening, wining and dining either at a lawyer's house or at a foreign embassy'. He said that there were charges of corruption against at least 88 High Court Judges. And several Judges had their sons and close relatives practise in all the High Courts. Because of these reasons, several years ago the Bar Council of Panjab and Haryana High Court adopted a resolution requesting the 'President and the Chief Justice of India to ensure that Judges domiciled in Punjab and Haryana, especially those whose family members are advocates and practicing in the same High Court are not allowed to occupy the benches of the Punjab and Haryana High Court."

Neither has USA nor India resorted to or has ever thought of doing the thing in a summary way over a cup of tea ignoring the constitutional mandate. They have strictly followed the Constitution. The present Caretaker Government, there might be some deviation though, is a dejure Government as it has come into power through the safe passage of 13th Amendment to the Constitution.

The President, the Chief Adviser, the Law Adviser and the Chief Justice of the country are under oath to protect the Constitution. The judges are protected under the Constitution and they cannot be removed by any other means. I am afraid that it would be the end of the Constitution and independence of the Judiciary if the judges were removed by any other means other than what the Constitution had provided.

(The writer is Senior Advocate of the Supreme Court of Bangladesh.)

Appellate Division

(Civil)

Md Ruhul Amin J

Md Tafazzul Islam J

Awlad Hossain and

others ………Petitioners

vs

Ebadulla Dewan and others t Respondents

Judgment June 18th 2006

Specific Relief Act (I of 1877)

Section 39

Evidence Act (I of 1872)

Section 45

The High Court Division on consideration of the materials on record, particularly the evidence of PW 6, held that the kabala on the basis of which defendants claimed the land in suit was forged since the plaintiffs by reliable evidence have established that Kamaruddin Dewan died in 1962 and, as such, defendants' claim of execution of kabala by Kamaruddin Dewan in their favour in the year 1970 is not true. The plaintiffs have established that the kabala on the basis of which defendants claimed the land in suit was fraudulent since thumb impression said to be of Kamaruddin Dewan was found to be different from the thumb impression appearing in the undisputed kabala executed by Kamaruddin Dewan in 1959…………..(1)

AKM Shahidul Huq, Advocate-on-Record-For the Petitioners.

Md. Nawab Ali, Advocate-in-Record-For respondent No.2

Not represented-Respondent Nos1 and 3-15

Judgment

Md Ruhul Amin: This petition for leave to appeal has been filed against the judgment dated November 11, 2003 of a Single Bench of the High Court Division in Civil Revision No. 3736 of 1996 making absolute the Rule obtained against the judgment and decree dated September 1, 1996 of the 1st Court of Subordinate Judge (now Joint District Judge Munshiganj in Title Appeal No. 100 of 1994 allowing the same upon reversing the judgment and decree dated June 18, 1994 of the Court of Senior Assistant Judge. Munshiganj in Title Suit No. 77 of 1990 decreeing the suit.

2. The suit was filed seeking declaration of title as well as for a declaration that the kabalas bearing No. 5586, 799 and 3170 dated July 8, 1970, April 23, 1977 and September 22, 1990 respectively are forged, fraudulent and fabricated and not binding upon the plaintiffs. It was the case of the plaintiff that the land in suit belonged to Asgar Ali Dewan and the CS record was prepared in his name. Asgar Ali Dewan died leaving Kamaruddin Dewan as his heir, that Kamaruddin Dewan died in 1962 leaving 4 sons by name Habibullah Dewan, Ali Dewan, Siddique Dewan and Ebadulla Dewan 4 and daughters by name Kulsum, Mollika, Julekha, and Lalmoti Ali Dewan died leaving 5 sons and 2 daughters, Kulsum died leaving son, that the plantiffs as heirs of Kamaruddin Dewan are in possession of the land, that Kamaruddin Dewan sold 17 decimals of land of Dag No, 920 listed in khatian No, 88 of mouza Alodi in Tongibari police station to Umesh Chandra Paul on January 4,1959, that the said document was executed by Kamaruddin Dewan upon affixing his left hand thumb impression, that Umesh Chandra Paul sold the land purchased from Kamaruddin Dewan to the plaintiff No, 2, that the deed dated July 8, 1970 said to have been executed by Kamaruddin Dewan in favour of Khorsheda Begum is forged, that defendants made claim in respect of the land in suit on the basis of deed No, 799 registered on April 23, 1977 and deed No, 3170 registered on September 22, 1990, that the said demand of title by the defendants has created cloud over the title and possession of the plaintiffs. Hence the suit.

3. The suit was contested by defendant Nos, 1 and 2 by filing written statement denying the material averments made in the plaint and stating, inter alia, that Asgar Ali was the owner of the land in suit and in his name CS record was prepared, that Asgar Ali died leaving one son Kamaruddin Dewan and he upon receiving Taka 600 executed deed No, 5586 on July 8, 1970 in favour of Khorsheda Begum and Khorsheda Begum sold the land of the said deed to her husband Lokman Bepari by the deed dated April 23, 1977 who sold the land so purchased to defendant Nos, 1 and 2 on September 22, 1990 and since purchase defendants are in possession and enjoyment of the land on payment of tax, that Kamaruddin Dewan by the deed dated July 8, 1970 sold the land in suit to the', predecessor of the defendants and, as such, on the death' of Kamaruddin Dewan; his heirs did not acquire any interest in the land in suit, that Kamaruddin Dewan did not die in 1962 but he died after July 8,1970, that defendants lost the deed dated July 8, 1970 and taking advantage thereof plaintiffs have instituted the suit, that defendants are in possession of the land for more than 20 years and during this period, plaintiffs did net take any objection, nor made any protest.

4. The trial Court decreed the suit on the finding that the plaintiffs have been able to, establish their case, On appeal the appellate Court allowed the appeal on the finding that plaintiffs have failed to establish their case and thereupon, upon setting aside the judgment and decree of the trial Court dismissed the suit of the plaintiffs.

5. Thereupon, the plaintiffs moved the High Court Division in revisional jurisdiction The High Court Division on consideration of the materials on record, particularly the evidence of PW 6, held that the kabala on the basis of which defendants claimed the land in suit was forged since the plaintiffs by reliable evidence have established that Kamaruddin Dewan died in 1962 and, as such, defendants' claim of execution of kabala by Kamaruddin Dewan in their favour in the year 1970 is not true, that the plaintiffs have established that the kabala on the basis of which defendants claimed the land in suit was fraudulent since thumb impression said to be of Kamaruddin Dewan was found to be different from the thumb impression appearing in the undisputed kabala executed by Kamaruddin Dewan in 1959.

6. We have heard the learned Advocate on-Record and perused the materials in the petition for leave to appeal. From the materials on record we are of the view there is no error of the kind in the judgment of the High Court Division calling for interference by this Division.

Accordingly, the petition in dismissed.